May 10, 2022

Seeking access to materials claimed to be protected by the Attorney-Client Privilege

The term "Attorney-client privilege" is typically applied to the work product of an attorney that may be claimed to be confidential legal communications between a client and the client's attorney's. The privilege is usually asserted by the client's attorney when confronted with a demand for the communication. Additionally, the "privilege" belongs to the client and may not be waived by the attorney absent the client's consent. 

In this appeal the Appellate Division held that the motion court, following an in camera review,* "providently exercised its discretion in directing various communications to be produced by the defendants [Defendants] and delivered to the complainant [Plaintiff]. The court concluded that the Defendants' internal correspondence concerning the item "at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged," citing Gottwald v Sebert, 172 AD3d 445.

Additionally, the court explained, emails between the Defendant in this action and an attorney representing a third party "are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendant."

Secondly, opined the Appellate Division, "correspondence between the public relations manager of [a former client of Defendants and the Defendants] was not in furtherance of either parties' legal positions but in response to a disagreement over a Tweet" and "cannot reasonably be characterized as confidential communications made for the purposes of legal advice."

Addressing Defendants' communications demanded by Plaintiff between Defendants and their public relations firm, the court said that such communications did not "reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy," and thus are not protected by the attorney-client privilege.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

Click HEREto access the Appellate Division's ruling.

 

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