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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 16, 2021

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 CIBC has not waived its attorney-client privilege concerning the material and testimony Cerberus seeks to compel by placing them at issue. CIBC has disavowed any intention to use privileged documents to prove the relevant defense or counterclaim and, as the motion court found, the invasion of the privilege is not necessary to determine their validity. This is unlike the case of Metropolitan Bridge & Scaffolds Corp. v New York City Hous. Auth. (168 AD3d 569 [1st Dept 2019]), in which this Court upheld an at-issue waiver, despite the defendant’s avowed intention not to use privileged communications and documents in its defense, because the plaintiff was required to use them to prove its claim which involved defendant’s reliance on the advice of counsel. However, under the particular circumstances here, the CIBC defense and counterclaim can be fairly litigated based on other available, nonprivileged evidence including the testimony of nonlawyers.

(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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