On March 9, 2021, Justice Borrok of the New York County Commercial Division issued a decision in New York Univ. v. Turner Constr. Co., 2021 NY Slip Op. 30823(U), holding that the common interest privilege does not protect materials produced to the Federal Emergency Management Agency, explaining: Turner’s motion to compel is granted. The common... Read more »
Blogs
Posts Categorized: Privilege/Work Product
Litigant Waived Privilege By Failing Timely to Cure Inadvertent Production of Privileged Document
On March 5, 2021, Justice Masley of the New York County Commercial Division issued a decision in Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, 2021 NY Slip Op. 30620(U), holding that a litigant waived the attorney-client privilege by failing timely to cure the inadvertent production of a privileged document, explaining: Here defendants fail to meet... Read more »
Party Did Not Put Privileged Communications At Issue Where Claims Could be Litigated Without Relying on Privileged Communications
On February 9, 2021, the First Department issued a decision in Securitized Asset Funding 2011-2, Ltd. v. Canadian Imperial Bank of Commerce, 2021 NY Slip Op. 00815, holding that a party did not put privileged communications at issue when its claims could be litigated without relying on those communications, explaining: The court properly found that... Read more »
That Counsel Might Have Relevant Evidence is Insufficient to Create At-Issue Privilege Waiver
On March 3, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Securitized Asset Funding 2011-2, Ltd. v. Canadian Imperial Bank of Commerce, 2020 NY Slip Op. 30700(U), holding that the fact that counsel might have relevant evidence is insufficient to create an at-issue waiver of privilege, explaining: An at... Read more »
Third-Party’s Presence Did Not Waive Attorney-Client Privilege
On March 3, 2020, the First Department issued a decision in Spicer v. GardaWorld Consulting (UK) Ltd., 2020 NY Slip Op. 01448, holding that the presence of a third-party did not (necessarily) waive attorney-client privilege, explaining: Plaintiffs were the sole shareholders of Hestia B.V. (the Company) prior to selling all of their shares to defendant.... Read more »
Employees’ E-mails With Counsel Sent on Employer’s Computer System Not Privileged
On February 11, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Rad v. IAC/Interactivecorp, 2020 NY Slip Op. 30410(U), holding that employees’ e-mails sent on their employers’ computers were not privileged, explaining: In Peerenboom v. Marvel Entertainment, LLC, the Appellate Division, First Department endorsed application of the four factors... Read more »
Documents Prepared for Uses Other Than Litigation Cannot be Withheld for Production Even if They Also Were Prepared in Anticipation of Litigation
On December 20, 2019, the Fourth Department issued a decision in John Mezzalingua Assoc., LLC v. Travelers Indem. Co., 2019 NY Slip Op. 09157, holding that documents prepared for uses other than litigation cannot be withheld from production even though they also were prepared for litigation, explaining: CPLR 3101 establishes three categories of protected materials:... Read more »
Privilege Determined by Law of Location of Trial or of Proceeding Seeking Discovery
On November 27, 2019, the Second Department issued a decision in Askari v. McDermott, Will & Emery, LLP, 2019 NY Slip Op. 08547, holding that a question of privilege must be determined by the law of the location of trial or of the proceeding seeking the evidence, explaining: Here, in the complaint, the plaintiffs seek... Read more »
First Department Recognizes Narrow Exception to Rule that Privilege Rules Applied to Evidence Are Those of Forum in Which Evidence Will Be Used
On September 17, 2019, the First Department issued a decision in Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., 2019 NY Slip Op. 06574, recognizing a narrow exception to the rule that the law regarding the attorney-client privilege applied to evidence is that of the forum in which the evidence will be used, explaining:... Read more »
Insurer’s Claims-Handling Documents Not Privileged Even If Prepared By Attorneys
On August 30, 2019, Justice Masley of the New York County Commercial Division issued a decision in Otsuka Am., Inc. v. Crum & Forster Specialty Ins. Co., Index No. 650463/2019, ruling that coverage opinions prepared by outside counsel for an insurer are discoverable, explaining: In the context of insurance, the payment or rejection of... Read more »