Privilege Archives - New York Appellate Digest

Animal Law, Attorneys, Civil Procedure, Evidence, Privilege

AN AFFIDAVIT WITH A PARTY STATEMENT AND A NON-PARTY AFFIDAVIT WHICH WERE NOT DISCLOSED SHOULD HAVE BEEN CONSIDERED IN OPPOSTION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE (FOURTH DEPT)

The Fourth Department, reversing Supreme Court and reinstating the complaint in this dog-bite case, determined an affidavit which should have been disclosed because it contained the statement of a party was admissible in opposition to defendant’s motion for summary judgment (the Davis affidavit). In addition, the affidavit of a non-party witness should have been considered by the court (the Cheetham affidavit). Even if the discovery demands are read to include the non-party affidavit, the affidavit was privileged as material prepared for litigation and therefore not discoverable. Supreme Court had precluded both affidavits on the ground they had not been disclosed:

… [W]e agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) “enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable” … . We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis’s affidavit from consideration in opposition to the motion … . Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis’s production … . Inasmuch as plaintiff is not precluded from relying on Davis’s affidavit to oppose summary judgment, Davis is not precluded from testifying at trial … .

We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham’s statement was discoverable, we note that defendant’s discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant’s discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham’s statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2 …). Defendant would be unable to show any substantial need for Cheetham’s statement inasmuch as Cheetham was deposed and therefore provided the substantial equivalent of the material contained in the statement … . Vikki-lynn A. v Zewin, 2021 NY Slip Op 05412, Fourth Dept 10-8-21

October 8, 2021/0 Comments/by Bruce Freeman

Administrative Law, Civil Procedure, Municipal Law, Privilege

THE NYC COMPTROLLER’S SUBPOENAS FOR COVID-19-PLANNING-RELATED COMMUNICATIONS BETWEEN MAYOR DE BLASIO AND THE FIRST DEPUTY MAYOR WERE PROPERLY QUASHED BY SUPREME COURT (FIRST DEPT).

The First Department determined Supreme Court properly quashed subpoenas issued by the NYC Comptroller seeking communications between Mayor de Blasio and First Deputy Mayor Fuleihan concerning the city’s COVID-19 pandemic planning. The First Department further held Supreme Court properly refused to quash other subpoenas issue by the Comptroller and properly ordered the depositions of two City witnesses without limitation of the scope of questioning:

In May 2020, in the midst of the ongoing COVID-19 public health emergency, Comptroller Scott Stringer commenced a [NYC Charter] Section 93(b) investigation of the City’s preparation for, planning for, and response to the pandemic to identify how those efforts impacted the City, its finances, residents and businesses. In connection with the investigation, the Comptroller issued a “request for information” to the City, which it sent to Dean Fuleihan, the City’s First Deputy Mayor, seeking information and communications related to COVID-19 … .

… [T]he court properly applied the public interest privilege to quash the document requests served on the Mayor and First Deputy Mayor. Generally, the public-interest privilege is a common-law rule that “attaches to confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged” because “the public interest would be harmed if the material were to lose its cloak of confidentiality” … . Matter of Comptroller of the City of N.Y. v City of New York, 2021 NY Slip Op 04685, First Dept 8-12-21

August 12, 2021/by Bruce Freeman

Attorneys, Evidence, Family Law, Privilege

PLAINTIFF HUSBAND IN THIS DIVORCE ACTION INSTALLED SPYWARE WHICH INTERCEPTED DEFENDANT WIFE’S PHONE CALLS AND THEN DESTROYED THE CONTENTS OF THE INTERCEPTION; THE INTERCEPTION VIOLATED DEFENDANT WIFE’S ATTORNEY-CLIENT PRIVILEGE; SANCTIONS FOR SPOLIATION OF EVIDENCE PROPERLY INCLUDED STRIKING THE CAUSES OF ACTION FOR SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION AND ATTORNEY’S FEES (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action was properly sanctioned for spoliation of evidence by striking from the complaint the causes of action seeking spousal support, equitable distribution and attorney’s fees. The husband had installed spyware which allowed interception of defendant wife’s phone calls. Evidence of what was intercepted was destroyed. It was assumed that the interceptions violated defendant wife’s attorney-client privilege:

… Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable … the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . … ” … Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” … . C.C. v A.R., 2021 NY Slip Op 01243, Second Dept 3-3-21

March 3, 2021/by Bruce Freeman

Attorneys, Privilege, Real Estate

“AT ISSUE” WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE EXPLAINED; AS LONG AS THE PRIVILEGED MATERIAL IS NOT USED AS PROOF, IT IS NOT “AT ISSUE.” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the attorney-client privilege was not waived by the appellants’ affirmative defense because the privileged material will not be used to prove the defense. The facts are not described but the lawsuit concerns the purchase of a building and the rent and regulatory status of plaintiffs’ apartments:

An “at issue” waiver of privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in the litigation so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege and application of the privilege would deprive the adversary of vital information. However, the fact that a privileged communication contains information relevant to the issues the parties are litigating does not, without more, place the contents of the privileged communication “at issue” in the lawsuit … . An “at issue” waiver occurs when a party has asserted a claim or defense that it intends to prove by the use of the privileged material … .

Here, appellants represent that they will not use the due diligence report to prove their claim of lack of willfulness and/or knowledge of the rent regulatory status of plaintiffs’ apartments. In this situation, appellants’ willfulness is presumed; and plaintiffs and seller defendants have adequate other sources of evidence to demonstrate whether or not appellants’ affirmative defense and cross claims have merit. Alekna v 207-217 W. 110 Portfolio Owner LLC, 2020 NY Slip Op 06841, First Dept 11-19-20

November 19, 2020/by Bruce Freeman

Defamation, Privilege

THE STATEMENTS MADE ABOUT PLAINTIFF WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF WAS UNABLE TO SHOW THE STATEMENTS WERE MOTIVATED SOLELY BY MALICE; THE DEFAMATION ACTION WAS PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff’s defamation action was properly dismissed. Plaintiff was accused by a fellow library board member, Hoag, of misappropriating over $20,000 in library funds. A criminal investigation uncovered no wrongdoing and plaintiff brought the defamation suit. The defamatory statements were protected by a qualified privilege because Hoag had an interest in the subject matter and the statements were made to a person with a corresponding interest. Therefore the statements were actionable only if Hoag was motivated solely by malice. The court held the statements were made in good faith, despite evidence that Hoag disliked plaintiff:

“Courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether” … . Those communications include ones protected by the qualified privilege that attaches to a person’s good faith communication “upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and . . . made to a person with a corresponding interest” … . …

Defendants … came forward with proof that Hoag made the communication in good faith, with Hoag and other Board members averring that their review of financial records, as well as plaintiff’s refusal to provide requested documentation, caused them to believe that plaintiff had made numerous questionable, unauthorized and/or undocumented expenditures of library funds. …

Inasmuch as the proof reflects that the inquiry into library spending by Hoag and other Board members was at least part of what led Hoag to accuse plaintiff of misappropriating funds, “even if [Hoag] disliked plaintiff or possessed some ill will towards her, plaintiff has failed to make an evidentiary showing that [Hoag was] motivated by malice alone in making the statement[]” … . Macumber v South New Berlin Lib., 2020 NY Slip Op 05113, Third Dept 9-24-20

September 24, 2020/by Bruce Freeman

Civil Procedure, Evidence, Negligence, Physician Patient Confidentiality, Privilege

PLAINTIFF, A NURSE ASSAULTED BY A PSYCHIATRIC PATIENT, WAS ENTITLED TO DEPOSE THE DEFENDANT TREATING PSYCHIATRISTS WITH RESPECT TO ANY NON-PRIVILEGED INFORMATION; THE DEFENDANTS SHOULD NOT HAVE REFUSED TO ATTEND THE DEPOSITIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to compel the defendant-psychiatrists’ depositions should have been granted. Plaintiff, a nurse in a psychiatric facility, was seriously injured in an assault by a patient. She sought to depose the defendant psychiatrists who had treated the patient. Although the defendants may legitimately invoke the doctor-patient privilege, there maybe be non-privileged information which can be the subject of a deposition. The proper procedure is for the defendants to attend the depositions and invoke the privilege where appropriate:

Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party” (CPLR 3101[a][1]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101[b] …).

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (… see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

… [T]he plaintiff is entitled to inquire into any nonprivileged information regarding the patient … . …

… [T]he prospect that a witness may be asked questions at a deposition as to which an objection based on privilege may be asserted is not a proper reason for declining to appear for a deposition. Jayne v Smith, 2020 NY Slip Op 03101,Second Dept 6-3-20

June 3, 2020/by Bruce Freeman

Attorneys, Contract Law, Privilege

COMMUNICATIONS BETWEEN PLAINTIFFS’ FINANCIAL ADVISOR AND COUNSEL DURING THE SALE OF PLAINTIFFS’ BUSINESS TO DEFENDANT ARE PRIVILEGED (FIRST DEPT).

The First Department, reversing Supreme Court, determined communications between plaintiffs’ financial advisor (KDC) and plaintiffs’ counsel in connection with the sale of plaintiffs’ company to defendant were privileged:

It is true that KDC was not retained to assist plaintiffs’ counsel in providing legal advice. However, the unrebutted evidence reflects that KDC spent some portion of its time helping counsel to understand various aspects of the transaction for that purpose. As such, KDC’s presence was necessary to enable attorney-client communication … .

Plaintiffs also had a reasonable expectation that the confidentiality of communications between their counsel and KDC would be maintained. Plaintiffs’ counsel attested that KDC promised to keep all such communications confidential. The governing Purchase and Sale Agreement also specified that all privileged documents related to the transaction would remain protected from disclosure to defendant even after closing … .

Contrary to defendant’s contention, the Cooperation Clause in KDC’s engagement letter did not undermine the reasonableness of this expectation of confidentiality, as it only required “reasonabl[e]” assistance to the Company (now owned by defendant), and should thus not be read to require KDC to turn over privileged documents … . Spicer v GardaWorld Consulting (UK) Ltd., 2020 NY Slip Op 01448, First Dept 3-3-20

March 3, 2020/by Bruce Freeman

Arbitration, Contract Law, Employment Law, Human Rights Law, Privilege

ARBITRATOR’S AWARD IN FAVOR OF DONALD J TRUMP FOR PRESIDENT INC VACATED AS VIOLATING PUBLIC POLICY AND EXCEEDING THE ARBITRATOR’S AUTHORITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the arbitrator’s award in this action based upon a non-disclosure, non-disparagement agreement (NDA) was against public policy and exceeded the arbitrator’s authority. Plaintiff was employed by defendant, Donald J. Trump For President, Inc. She signed the NDA as a condition of her employment. Plaintiff brought an employment discrimination action in Supreme Court alleging a hostile work environment, sexual discrimination, defamation and intentional and negligent infliction of emotional distress. Pursuant to the NDA defendant demanded arbitration. Plaintiff then started a federal lawsuit seeking a declaration that the NDA was void and unenforceable and defendant, pursuant to the NDA again demanded arbitration. The arbitrator found plaintiff had breached the NDA by disclosing confidential information in the federal action and making disparaging comments on her GoFundMe pages and on her Twitter account. The First Department held the information disclosed in the federal action was protected by privilege and the comments posted on the Internet were not part of the defendant’s demand for arbitration:

Plaintiff’s negative statements about defendant, for which the arbitrator made an award, were made in the context of the federal action in which she sought a declaration that the NDA was unenforceable … . By concluding that the allegations in the federal action are tantamount to disclosure of confidential information violative of the NDA, the arbitrator improperly punished plaintiff for availing herself of a judicial forum. Defendant is hard-pressed to explain how plaintiff could have pursued her rights without setting forth necessary factual statements for the federal court to consider.

The remainder of the award was based upon certain Twitter “Tweets” and statements on a GoFundMe page. The nature of the Demand to Arbitrate, however, was limited to statements made “in connection” with this state action. * * * Defendant relies on plaintiff’s actions subsequent to the date of its Demand to Arbitrate in an effort to have the arbitration award confirmed. Since the award takes into account events occurring after the demand, which could not have been legitimately considered at arbitration, the award was made in excess of the arbitrator’s enumerated authority. Denson v Donald J. Trump for President, Inc., 2020 NY Slip Op 00923, First Dept 2-6-20

February 6, 2020/by Bruce Freeman

Civil Procedure, Evidence, Negligence, Privilege, Public Health Law

PLAINTIFF WAS ASSAULTED BY ANOTHER PATIENT IN DEFENDANT LONG-TERM CARE FACILITY; THE MEDICAL RECORDS OF THE ASSAILANT, WHO WAS NOT A PARTY, WERE PRIVILEGED AND NOT DISCOVERABLE; THE INCIDENT REPORTS PERTAINING TO THE ASSAULT WERE NOT SHOWN BY THE DEFENDANT TO BE PRIVILEGED PURSUANT TO THE PUBLIC HEALTH LAW AND WERE THEREFORE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the assailant’s medical records were privileged, but any incident reports pertaining to the assault were not. Plaintiff alleged she was attacked while a long-term resident of defendant long-term health care facility. The assailant in this third-party assault action was not made a party:

We agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which sought disclosure of the assailant’s admission chart. The assailant is not a party to the action, his medical records were subject to the physician-patient privilege, and he has not waived that privilege … .

However, the Supreme Court should have granted that branch of the plaintiffs’ motion which sought disclosure of all incident reports related to the assault. Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or which are “required by the Department of Health pursuant to Public Health Law § 2805-l,” are generally not discoverable … . The defendant, as the party seeking to invoke the privilege, has the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Here, the defendant merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Accordingly, the incident reports related to the assault were subject to disclosure. DeLeon v Nassau Health Care Corp., 2019 NY Slip Op 08989, Second Dept 12-18-19

December 18, 2019/by Bruce Freeman

Attorneys, Civil Procedure, Corporation Law, Privilege, Replevin

THE ATTORNEY-CLIENT PRIVILEGE DID NOT PASS TO THE FOREIGN (DELAWARE) CORPORATION AFTER A MERGER AND ACQUISITION OF NEW YORK BUSINESS ENTITIES; THEREFORE THE NEW YORK PARTIES, IN THEIR CLAIMS AGAINST THE ATTORNEYS WHO REPRESENTED THEM IN THE TRANSACTION, CAN SEEK ACCESS TO THE ATTORNEYS’ PRIVILEGED COMMUNICATIONS CONCERNING THE TRANSACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Austin, reversing Supreme Court, determined that New York law applied to a party’s assertion of the attorney-client privilege for documents associated with a corporate acquisition and merger involving New York and Delaware business entities. The opinion is fact-based and far too complex and comprehensive to summarize here. The Second Department, disagreeing with Supreme Court, held that the choice of law was governed by public policy, and the proper theory for access to the privileged documents is New York’s law of replevin. In a nutshell, the Second Department held that the attorney-client privilege did not pass to the foreign corporation after the merger and acquisition, but rather remained with the the New York parties (Sina and Askari) and allowed the New York parties to pursue claims against the attorneys (McDermott) who represented them in the transaction:

In a situation where documents are sought, New York will apply the law of the forum where the evidence will be introduced at trial or the location of the proceeding seeking discovery of those documents … . Here, the privileged communications being sought by the plaintiffs in this New York replevin action were made in New York between New York-based attorneys at McDermott and Sina, a New York corporation, involving its then-majority shareholder and president, Askari, a New York resident. The sole nexus that Delaware has to this action is that Specialty is a limited liability company formed under the laws of that state. Consequently, New York law applies in this action sounding in replevin seeking the disclosure of McDermott’s files … . …

It would indeed be incongruous to enforce a law which effectively forecloses New York corporations merging with foreign corporations from having the ability to pursue their claims against their counsel or the newly formed, post-merger entities based on the post-merger entities’ control of the documents needed by the former entities to prosecute potential claims. Here, Delaware law gives the new corporation, a putative defendant, sole access to and control of the merger-related documents by the exercise of the attorney-client privilege. This is contrary to New York public policy … . * * *

Here, Business Corporation Law § 1006 specifically provides that a dissolved corporation, like Sina, may commence an action in any court under its corporate name. Sina’s dissolution does not affect Sina’s right or capacity to maintain this replevin action since the claim arose from McDermott’s representation of Sina which began before Sina’s dissolution. … Thus, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law in this action for replevin since the plaintiffs submitted evidence, through Askari’s affidavit, that McDermott represented Sina and Askari during the “transactions.” As a result, the plaintiffs demonstrated, prima facie, their superior possessory right to McDermott’s files. Askari v McDermott, Will & Emery, LLP, 2019 NY Slip Op 08547, Second Dept 11-27-19

November 27, 2019/by Bruce Freeman