The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege):
The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege … . To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party… . “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” … . Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” … . Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Second Dept 1-24-18
CIVIL PROCEDURE (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (HE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEY-CLIENT PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))