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Tuesday, January 05, 2016

Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule


Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule
State of New York, ex rel. Murray v Baumslag, 2015 NY Slip Op 08942, Appellate Division, First Department

Supreme Court, New York County, denied John T. Murray motion for a subpoena requiring Mary Kennedy Baumslag to produce certain records. Murray appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and in the exercise of discretion and granted Murray’s motion.

In a complaint made to the director of the Office of Internal Audit and Management Services [Internal Audit] of nonparty City University of New York [CUNY], Murray alleged that Gilbert Baumslag, a former professor at CUNY, had used public education monies for improper purposes. Internal Audit had conducted an investigation concerning the matter, which resulted in a report with recommendations. A redacted version of the report was provided to Murray.

In an action brought on behalf of the State pursuant State Finance Law §187, New York’s False Claims Act,* to recover allegedly falsely procured and misspent funds, Murray was provided a redacted copy of a report made by Internal Audit. The redacted copy of the report provided Murray had omitted several recommendations and Murray asked for the production of the unredacted version of the report, as well as investigators' notes of their interviews with CUNY and CUNY professors, including Gilbert Baumslag, named in the report.

Murray contended that the redacted material was relevant because it identified the actions recommended by the report and taken by CUNY on the basis of the results of the investigation.**

CUNY claimed that the material sought was “work product” and thus privileged.

The Appellate Division was not persuaded by CCNY’s contention, explaining that CCNY’s “conclusory statement is insufficient to invoke the work-product privilege.” The court also noted that although the director of Internal Audit testified that he is an attorney, he was not an attorney for CUNY and the report which he wrote with a CUNY examiner, who is not an attorney, contains nothing that reflects "legal research, analysis, conclusions, legal theory or strategy."

The court then said that “[t]he investigators' notes are not protected by the work-product privilege since there is no evidence that the investigators conducted their interviews with Baumslag and other professors allegedly involved in the improper spending in anticipation of litigation.”

CUNY also argued that the material sought by Murray was, “in any event,” not relevant. The Appellate Division ruled that CCNY failed to establish that the discovery sought is "utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.”

* §188, Definitions, of Article 13 of the State Finance Law, New York’s False Claims Act essentially defines the term “claim” as any request or demand, for money or property that is presented to an officer, employee or agent of the state or a local government while the term “false claim” means “any claim which is, either in whole or part, false or fraudulent.”

** For example, Murray alleged that Baumslag had used public education monies for improper purposes and the Director of Internal Audit had testified that the recommendations may have included asking Baumslag for "reimbursement of expenses."

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