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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: December 25, 2018

Defendant Did Not Waive Attorney-Client Privilege

On December 13, 2018, the First Department issued a decision in U.S. Bank Natl. Assn. v. Lightstone Holdings LLC, 2018 NY Slip Op. 08556, holding that there had been no waiver of the attorney-client privilege, explaining:

The motion court properly found that no subject matter waiver of the privilege had occurred. Although the privileged information sought by plaintiff is likely relevant to its claim of entitlement to priority to the guarantee pool money, defendant Wachovia did not place the communications with its counsel at issue, and plaintiff fails to show that the privileged information is necessary to determine the validity of its claims.

The motion court also properly found the defendant did not waive the privilege by its selective disclosure of certain nonprivileged documents related to the same issues. There is also no basis to invade the attorney client privilege of nonparty JP Morgan, and permit discovery of communications with its counsel, issued during the pendency of the related bankruptcy proceeding, years after the agreement at issue in this litigation was drafted.

(Internal citations omitted).

An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.

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