Privilege – Page 8 – New York Appellate Digest

COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a report written by defendant concerning plaintiff-doctor’s competence was protected by the common interest qualified privilege and was the expression of pure opinion. The competence assessment was done after one of plaintiff’s patients died during surgery:

Plaintiff, a doctor employed by defendant Kaleida Health (Kaleida), performed a surgery in which the patient died. As a result of this incident, and pursuant to Kaleida policy, plaintiff underwent a neuropsychological competence assessment by Ralph Benedict, M.D. (defendant). Defendant thereafter submitted a written report detailing his findings and opinions to both Kaleida’s internal review body and plaintiff’s personal physician. …

“It is well settled that summary judgment is properly granted [dismissing a defamation cause of action] where a qualified privilege obtains and the plaintiff[] offer[s] an insufficient showing of actual malice” … . Here, defendant established as a matter of law that his written report and associated oral commentary were protected both by the ” common interest’ ” qualified privilege … . In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual malice … .

We further agree with defendant that the court erred in denying that part of his motion with respect to the defamation causes of action on the alternative ground that the allegedly defamatory statements are expressions of pure opinion … . “Expressions of opinion . . . are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … . Shenoy v Kaleida Health, 2018 NY Slip Op 01008, Fourth Dept 2-9-18

DEFAMATION (COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/OPINION (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))

February 9, 2018

Attorneys, 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).

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))

January 24, 2018

Defamation, Privilege

DEFENDANT’S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT).

The First Department determined that defendant's statement to the Wall Street Journal was within the judicial privilege:

Defendant['s] … statement to the Wall Street Journal, that plaintiff investment advisor “just took our money,” fell within the statutory privilege against libel claims for the publication of a fair and true report of a judicial proceeding… . The statement, in the context of the article, which was about lawsuits filed against plaintiff, would be understood by an ordinary reader to refer to defendant Muirfield Capital Management LLC's claim that plaintiff improperly withdrew money from an investment fund plaintiff managed, in which Muirfield invested … . Highland Capital Mgt., L.P. v Stern, 2018 NY Slip Op 00230, First Dept 1-10-18

DEFAMATION (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/LIBEL (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/PRIVILEGE (DEFAMATION, JUDICIAL PRIVILEGE, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/JUDICIAL PRIVILEGE (DEFAMATION, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))

January 10, 2018

Appeals, Civil Procedure, Privilege

PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the decision vacating an order concerning a counterclaim in a prior appeal was the law of the case, despite the “otherwise affirmed” phrase in the decision, and Supreme Court should not have adhered to a prior ruling on the counterclaim in Supreme Court. The Fourth Department further held that Supreme Court properly found a report prepared by an accountant was prepared in anticipation of litigation and was not discoverable as a “mixed file:”

“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on . . . Supreme Court, as well as on the appellate court . . . [T]he “law of the case” operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law’ “… . Nevertheless, “where a court has vacated an earlier order, the doctrine of . . . law of the case no longer applies . . . Indeed, a vacated judgment has no preclusive force either as a matter of collateral or direct estoppel or as a matter of the law of the case’ “… . While this Court may have “otherwise affirmed” the order insofar as it concerned the issues unrelated to the counterclaim, we dismissed the appeal from that part of the order concerning the counterclaim and vacated the judgment. That necessarily means that any determinations related to the counterclaim were not encompassed by the “otherwise affirmed” language related to the order … . Micro-Link, LLC v Town of Amherst, 2017 NY Slip Op 08120, Fourth Dept 11-17-17

CIVIL PROCEDURE (LAW OF THE CASE, DISCOVERY, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/APPEALS (CIVIL PROCEDURE, LAW OF THE CASE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/PRIVILEGE (MATERIAL PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/ACCOUNTANTS (PRIVILEGE, REPORT PREPARED FOR LITIGATION, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))/LAW OF THE CASE (CIVIL PROCEDURE, PRIOR APPELLATE DECISION VACATING AN ORDER CONCERNING A COUNTERCLAIM WAS THE LAW OF THE CASE, NOT A PRIOR SUPREME COURT RULING ON THE COUNTERCLAIM, ACCOUNTANT REPORT PREPARED FOR LITIGATION NOT DISCOVERABLE (FOURTH DEPT))

November 17, 2017

Attorneys, Civil Procedure, Privilege

REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department affirmed most of Supreme Court’s rulings on the disclosure of documents in a billing dispute, including a report from a consultant, finding that the documents were not protected by privileges for attorney-client communications, attorney work-product, or material prepared for litigation. The criteria for all were described:

… [T]he report “does not include any legal advice, legal analysis or discussion of legal issues” nor does it disclose confidences of defendant, and ,,, it is not a communication “of a legal character” … . * * *Thus, the report was not protected by the attorney-client privilege.

…[T]he report was not protected from disclosure as attorney work product, as this “privilege should be narrowly applied to materials prepared by an attorney, acting as an attorney, which contain his [or her] analysis and trial strategy” … .

Materials such as reports prepared by a third party, a nonlawyer consultant, during an investigation do not ordinarily qualify under this exception … . * * *

With regard to the claim that the report was protected from disclosure as material prepared for litigation, defendant’s “burden was to demonstrate that [the report] was obtained solely for litigation purposes” … , which “cannot be satisfied with wholly conclusory allegations”… . “[M]ixed or multipurpose reports are not free from disclosure” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07909, Third Dept 11-9-17

ATTORNEYS (PRIVILEGES, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))PRIVILEGE (ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/CIVIL PROCEDURE (DISCLOSURE, PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY-CLIENT PRIVILEGE (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY WORK-PRODUCT (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/LITIGATION, MATERIAL PREPARED FOR (PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT)/DISCLOSURE (PRIVILEGE, ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))

November 9, 2017

Attorneys, Civil Procedure, Insurance Law, Privilege

SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

The Fourth Department, reversing (modifying Supreme Court) determined plaintiff was not entitled to disclosure of the pre-disclaimer opinion of outside counsel for the insurer, and was not entitled to the insurer’s manual without an in camera review of the manual for relevance. Supreme Court properly ordered disclosure of the pre-disclaimer claim notes which included statements made by the insured (father of the injured infant):

… [T]he court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” … . Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable … , documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared … .

[T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s reserve information and denying that part of defendant’s cross motion with respect thereto inasmuch as that information is not “material and necessary” to the action (CPLR 3101 [a]…).

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … . …[T]he court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action … . Celani v Allstate Indem. Co., 2017 NY Slip Op 07799, Fourth Dept 11-9-17

INSURANCE LAW (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CIVIL PROCEDURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/ATTORNEYS (INSURANCE LAW, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/PRIVILEGE (ATTORNEY-CLIENT, INSURANCE LAW, DISCLOSURE, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/DISCLOSURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CPLR 3101 (a) (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))

November 9, 2017

Evidence, Medical Malpractice, Negligence, Privilege, Public Health Law

DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined documents sought from a nursing home were not shielded from discovery by the Public Health Law. The documents concerned plaintiff’s decedent’s falls:

Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. A New York State Department of Health regulation also requires nursing homes to establish and maintain a quality assessment and assurance program (see 10 NYCRR 415.27). Public Health Law § 2805-m and Education Law § 6527(3) both protect from disclosure documents created “by or at the behest of a quality assurance committee for quality assurance purposes” … . “It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes” … . The party asserting the privilege ” is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure”‘… . Records that are duplicated or used by a quality assurance committee are not necessarily privileged … .

Here, in support of its cross motion for a protective order shielding the reports from disclosure, the Nursing Home submitted, among other things, the affidavit of its administrator, a privilege log, and, in camera, the three reports it was able to locate. Contrary to the determination of the Supreme Court, the Nursing Home’s showing was insufficient to demonstrate that the reports were generated by or at the behest of the Nursing Home’s Quality Assurance Committee. Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204, Second Dept 8-16-17

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/MEDICAL MALPRACTICE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/PRIVILEGE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/NURSING HOMES (PUBLIC HEALTH LAW, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/QUALITY ASSURANCE (PUBLIC HEALTH LAW, MEDICAL MALPRACTICE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))

August 16, 2017

Defamation, Evidence, Privilege

COMMON-INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR FACTUAL EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT).

The Second Department determined that, although the common interest privilege applied to the allegedly defamatory statements, the allegations of malice were sufficient to overcome the privilege in the context of a motion to dismiss. The court noted that no evidence of malice need be presented at the motion-to-dismiss stage:

“To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”…. . “A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege”… . However, this “common-interest privilege” may be overcome by a showing of malice … . “To establish the malice’ necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will,’ or may show actual malice,’ i.e., knowledge of falsehood of the statement or reckless disregard for the truth” … .

Here, * * * the common-interest privilege applies to the allegedly defamatory communications… . However, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference …, the amended complaint sufficiently alleges malice to overcome the privilege… . “[A] plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7) … . Ferrara v Bank, 2017 NY Slip Op 06161, Second Dept 8-16-17

DEFAMATION (COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/EVIDENCE (DEFAMATION, MALICE, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))/MALICE (DEFAMATION, COMMON INTEREST PRIVILEGE OVERCOME BY ALLEGATIONS OF MALICE, NO NEED FOR EVIDENCE OF MALICE AT THE MOTION TO DISMISS STAGE (SECOND DEPT))

August 16, 2017

Attorneys, Privilege

SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT.

The Third Department determined a law firm was properly disqualified from representing mother because an associate at the firm had previously represented father in a case involving the same child:

We … address whether, due to the associate’s former attorney-client relationship with the father and current employment with the law firm, the principal is also precluded from representing the mother. While the principal has apparently never represented the father, “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . Application of this rule creates a rebuttable presumption that the law firm should be disqualified … . To that end, “[a] court must examine the circumstances of the particular case and, if it is not clear as a matter of law that disqualification of the entire firm is required, the firm should be given an opportunity to rebut the presumption” … . The presumption may be rebutted by proof that “any information acquired by the disqualified lawyer [i.e., the associate] is unlikely to be significant or material in the [subject] litigation” and by evidence that the law firm screened the associate from receipt and dissemination of information subject to the attorney-client privilege … . * * *

We are mindful here that “[d]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification”… , and that “disqualification avoids any suggestion of impropriety and preserves [the client’s] expectation of loyalty” … . Under these facts, we are unpersuaded by the principal’s assertion that a sufficient firewall exists to separate his work on behalf of the mother from the associate so as to screen her from the receipt of information that is protected by the attorney-client privilege in this small, informal law office environment. As the principal has not rebutted the presumption that all attorneys in his law firm are disqualified from representing the mother, the father’s motion was properly granted, and Family Court’s order will not be disturbed. Matter of Yeomans v Gaska, 2017 NY Slip Op 05786, 3rd Dept 7-20-17

ATTORNEYS (CONFLICT OF INTEREST, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)/CONFLICT OF INTEREST (ATTORNEYS, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)

July 20, 2017

Attorneys, Privilege

ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY.

The First Department, reversing (modifying) Supreme Court, determined plaintiff could not assert attorney-client privilege to protect information on a company-owned laptop, but could assert the attorney work product privilege subject to court review of the log:

Application of the factors set forth in In re Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr, SD NY 2005]) indicates that plaintiff lacked any reasonable expectation of privacy in his personal use of the laptop computer supplied to him by defendant Zara USA, Inc. (Zara), his employer, and thus lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege … . Among other factors, Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge… , restricted use of company-owned electronic resources, including computers, to “business purposes” and proscribed offensive uses. The handbook specified that “[a]ny data collected, downloaded and/or created” on its electronic resources was “the exclusive property of Zara,” emphasized that “[e]mployees should expect that all information created, transmitted, downloaded, received or stored in Zara’s electronic communications resources may be accessed by Zara at any time, without prior notice,” and added that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”

Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff’s laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any “actual disclosure to a third party, [plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections” … . Miller v Zara USA, Inc., 2017 NY Slip Op 04407, 1st Dept 6-6-17

ATTORNEYS (PRIVILEGE, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/PRIVILEGE (ATTORNEYS, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY-CLIENT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY WORK PRODUCT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)

June 6, 2017