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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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Disparaging Allegations in Complaint Protected by Judicial Privilege

In a defamation action, after finding that the disparaging allegations in a complaint were protected by judicial privilege, the Second Department criticized the use of invective in the pleadings:

The court properly concluded that the statements made in the underlying complaint were pertinent to the action and therefore absolutely protected by the judicial proceedings privilege… . The allegedly defamatory allegations were broadly pertinent to the tortious interference claim, as they bore on the mother’s intent, provided the context for the dispute, and supported the claim for punitive damages… . The pertinence of the statements negates any finding of abuse of the judicial proceedings privilege … . Moreover, the statements were expressions of opinion, not fact, or they constituted hyperbole, which are also absolutely protected… . *  *  * Nevertheless, although we affirm, we note our disapproval of defendants’ use of a filed pleading as a vehicle for offensive, albeit nondefamatory invective. Such conduct offends the dignity of judicial proceedings and should not be condoned.  Joseph v Joseph, 2013 NY Slip Op 04111, 1st Dept, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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Reporter’s Information Subject to Qualified Protection​

A reporter spent four days “autotrekking” with petitioner’s husband a few months before the husband’s death in an “autotrekking” accident. Petitioner subpoenaed the reporter to appear in an action arising from the death of her husband. The First Department ruled the information gathered by the reporter was entitled to qualified protection under the New York Shield Law:

Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately published in the article, and is therefore subject to qualified protection under the New York Shield Law (see Civil Rights Law § 79-h[c]… .

Petitioner failed to make the “clear and specific showing” required to overcome the protection (see Civil Service Law § 79-h[c]). Even assuming that the information she seeks is “highly material and relevant” and “critical or necessary” to the maintenance of her claims, she has not shown that it is unobtainable “from any alternative source” … . Matter of Gilson v Coburn, 2013 NY Slip Op 03177, 1st Dept, 5-2-13

 

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Verdict In Favor of Physician Set Aside in “Breach of Implied Covenant of Trust and Confidence” Case

The Third Department set aside a jury verdict in favor of defendant, plaintiff’s former physician.  The lawsuit alleged a cause of action for “breach of the implied covenant of trust and confidence inherent in the patient-physician relationship” based upon defendant’s breach of “her duty of confidentiality” when she reported the details of a hospital visit with plaintiff to plaintiff’s wife.  The confidential information apparently at least implied plaintiff posed a danger to plaintiff’s wife [Juric].  In setting aside the verdict, the Third Department wrote:

In our view, the record does not contain proof establishing that defendant had a reasonable basis to believe that plaintiff posed an actual, current, imminent  threat to Juric as required to sustain her affirmative defense pursuant to Supreme  Court’s jury charge [the affirmative defense was “justification”]. Thus, even according defendant every favorable inference and considering the facts in the light most favorable to her …, we agree with plaintiff that there was “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence  presented  at trial” … Juric v Bergstraesser, 515333, 3rd Dept, 4-25-13

 

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Criteria for Demonstrating Documents Were Material Prepared in Anticipation of Litigation

The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows:

“The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . More particularly, “[t]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation . . . bears the burden of demonstrating that the material it seeks to withhold is immune from discovery … by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . An attorney’s affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant’s burden of demonstrating that the materials were prepared exclusively for litigation … .  New York Schools Ins Reciprocal v Milburn Sales Co, Inc, 2013 NY Slip Op 02227, 2012-01697, Index no 2848/11, 2nd Dept 4-3-13

 

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From the Point When a Director’s Position Becomes Adverse to the Corporation, the Director Is Not Entitled to Discovery of the Corporation’s Attorney-Client Communications

Plaintiff was both a shareholder in and a director of defendant corporation. In her role as a shareholder, plaintiff brought a special proceeding to compel the corporation to pay the fair market value of her shares pursuant to Business Corporation Law section 623.  The special proceeding was prompted by the corporation’s sale of a 65% interest in the business to a third-party investor—a sale to which plaintiff objected.  During the course of discovery, the defendant corporation’s lawyers turned over thousands of documents to the plaintiff.  Included in those documents were attorney-client communications which took place after plaintiff had voiced her strong objection to the sale of the 65% interest in the business. The motion court determined that the plaintiff, as a director, was a corporate insider by definition, and was therefore entitled to all the corporation’s attorney-client communications, even those communications which took place after she voiced her opposition to the sale.  The First Department reversed.  The Court determined that, once plaintiff objected to the sale and hired her own attorney, her interests became “adverse” to those of the corporation, and she was not entitled to the attorney-client communications made after that point. [There is a long dissent arguing that, pursuant to CPLR 5511, the appellants were not aggrieved by the ruling appealed from and, therefore, the First Department did not have jurisdiction to entertain the appeal.] Barasch v Williams Real Estate Co. 2013 NY Slip Op 01613, 7405, 500054/09, 1st Dept. 3-14-13

 

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