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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 22, 2019

Documents Not Prepared in Anticipation of Litigation Not Entitled to Work-Product Protection

On August 7, 2019, Justice Borrok of the New York County Commerical Division issued a decision in Spicer v. Gardaworld Consulting (UK) Ltd., 2019 NY Slip Op. 32375(U), holding that documents that were not prepared in anticipation of litigation are not entitled to work product protection, explaining:

Gardaworld argues that the Post-Closing Documents are not protected by work-product privilege because there could be no expectation of litigation at that stage of the proceedings. The plaintiffs argue that the Post-Closing Documents are subject to work-product privilege because these documents relate to the plaintiffs’ dispute with Gardaworld over the earnout provision in the PSA.

Documents subject to work product privilege must be prepared in anticipated of litigation. Although the Post-Closing Documents concern the earn-out dispute that is a subject of this action, the plaintiffs have not established that said documents were prepared in anticipation of litigation, especially when the Post-Closing Documents were created between April to October 2016, nearly one year before this action was commenced. As a result, Gardaworld’s motion to compel production of the Post-Closing Documents is granted.

(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 or work-product protection. 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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