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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 19, 2020

Failure to Make Timely and Particular Objections Waives Objections Not Based on Privilege or Palpable Impropriety

On June 18, 2020, the First Department issued a decision in Khatskevich v. Victor, 2020 N.Y. App. Div. LEXIS 3555, reversing a decision by the Supreme Court, New York County, denying a motion to compel a party’s “T-Visa” application, since any objections to the request for the application based upon grounds other than privilege or palpable impropriety were waived by failing to serve timely and particular objections, as required by CPLR 3122. The First Department explained:

[Defendant] Victor served a written demand for plaintiff’s T visa and application materials on October 22, 2018. Eight days later, plaintiff objected to production in writing, but did not specify any ground. Plaintiff did not raise the ground of privilege until March 2019, and never timely objected with particularity Accordingly, plaintiff waived objection based on any ground other than privilege or palpable impropriety.

(Internal citations omitted).

The First Department also arguably held that statutes prohibiting the release of information from government entities (as opposed to private parties) cannot confer a privilege, as it ruled that federal statute 8 USC § 1367 (the only ground upon which Plaintiff Khatskevich asserted a “privilege”) is not a ground of privilege for purposes of CPLR 3101 or waiver under CPLR 3122. The First Department relied upon Joseph v Signal Intl. LLC, 2014 WL 12597592 at 6 (E.D. Texas 2014) (holding that 8 USC § 1367, which generally prohibits the dissemination of information regarding whether a person holds a “T-Visa” or “U-Visa,” does not apply to private litigants, but rather only certain federal agencies, and therefore does not confer a privilege).

The First Department remanded to the Supreme Court for “further proceedings, including imposition of any confidentiality order or other protections which Supreme Court, in its discretion, may deem appropriate.”

The process of giving, receiving and evaluating evidence in civil litigation (called “discovery”) starts with requests from one party for documents and subsequent responses and objections to those requests by another party. This decision highlights the importance of parties in receipt of document requests to make particularized objections and responses, and to serve them within the time frame prescribed by CPLR 3122. If you or a client have questions about how to respond to a document request, or how to make another party honor your document request, contact Schlam Stone & Dolan associate John F. Whelan.

NOTE:

Jeffrey M. Eilender, Jonathan Mazer, Niall D. O’Murchadha, and John F. Whelan represent Defendant Adam Victor.

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