Attorney-client privilege, work product, material created for litigation
by Michael H. Barr, Hon. Myriam J. Altman,BurtonN. Lipshie & Sharon Stern Gerstman
A. Attorney-Client Privilege
1. Summary and Tactics
§25:80 CAPSULE STATEMENT OF PRIVILEGE
Subject to waiver and specified exceptions, confidential communications between an attorney and a client “in the course of professional employment” are privileged from discovery or disclosure. [CPLR 4503(a).]
A three-part test applies to the application of the privilege. It applies only to:
Communications that are
Related to the purposes of giving or obtaining legal advice, and
Intended to be confidential.
The attorney-client privilege is absolute. That means that regardless of the desirability of disclosure, or the need of the other party for the evidence, unless the privilege has been waived, privileged communications between a lawyer and that lawyer’s client may not be disclosed by the lawyer, and need not be disclosed by the client. However, the privilege “may not be invoked where it involves client communications that may have been in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct.” [Ulico Casualty Company v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 767 NYS2d 228 (1st Dept 2003).]
[For waiver of a privilege, see §25:60 ff.]
§25:81 COMMUNICATIONS VIEWED CAUTIOUSLY
The courts frequently note that the attorney-client privilege is “an ‘obstacle’ to the truth-finding process, the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose.” [Matter of Jacqueline F., 47 NY2d 215, 219, 417 NYS2d 884 (1979).] Thus, the privilege is limited to “only those communications made in confidence to an attorney for the purpose of seeking professional advice.” [Matter of Jacqueline F.]
§25:82 EDUCATE CLIENT
Explain the elements of the lawyer-client communications privilege to your clients. Also explain that you may someday have to convince a judge that a communication was indeed privileged. A client who is aware of the prerequisites and benefits of a privilege is in the best position to conform communications to the privilege’s requirements, anticipate privilege disputes, and help create a record to enhance the prospects of prevailing should a dispute arise.
CAUTION: Beware of indirect attempts to invade privilege
Some deposition questioning tactics are aimed at tricking a witness into revealing privileged communications. For example, opposing counsel deposing your client might ask, “Did you ever tell anyone, including your lawyer, whether you ran the red light?” Be listening for such questions, object to them on the basis of the lawyer-client communication privilege, and instruct your client not to answer.
§25:83 LAY GROUNDWORK FOR MOTIONS
Any confidential communication you have with a client may someday be the subject of an inspection request, interrogatory, or question at deposition or trial. If that happens, you must claim the privilege on your client’s behalf [see §25:40 ff], and may then have to oppose a motion to compel, or prosecute a motion for protective order.
In any privilege motion, the person or entity invoking the privilege must be prepared to prove the privilege applies to the information, and the holder has not waived the privilege. [See §25:60 ff.] To make satisfying those burdens an easier task, institute and faithfully observe basic formalities whenever communicating with clients. For example, create a record (i.e., a “paper trail”) to document the intention that communications were privileged when made, and the expectation they would remain confidential.
When lawyer-client communications are in writing:
Use appropriate legends to designate documents that are privileged, e.g., “Confidential-Privileged Attorney-Client Communication.”
Do not co-mingle privileged communications with other files. Correspondence, memos and other documents and records containing attorney-client communications should be physically segregated from other documents.
Consider segregating document indexes from other privileged documents in your computer files.
Make the writing clearly reflect that the author, source or recipient of it is the lawyer, or an agent acting at the lawyer’s direction.
Make the writing clearly reflect the purpose of providing legal advice or services. [See §25:100 ff.]
Restrict distribution to persons whose positions require they have access to the confidential information.
Be careful with faxes and e-mail, since you cannot absolutely assure that such transmissions will remain confidential.
And, with respect to e-mails, be extremely careful when you forward an apparently non-privileged e-mail, that you do not include in the forward any earlier “threads” of the e-mail dialogue that may contain privileged material.
2. Elements of a Privileged Communication
a. Must Be a “Communication”
§25:90 EXISTENCE OF COMMUNICATION NOT PRIVILEGED
The privilege prohibits the disclosure of a confidential communication. [CPLR 4503(a).] This means that it is the substance, not the fact of the communication that is protected.
Thus, the fact that a communication took place is not privileged. [Hoopes v. Carota, 142 AD2d 906, 531 NYS2d 407 (3d Dept 1988), aff’d 74 NY2d 716 (1989).]
§25:91 ORAL AND WRITTEN
The privilege encompasses both oral and written communications between counsel and client.
§25:92 ELECTRONIC TRANSMISSIONS
A privileged communication does not lose its privileged status when it is communicated by electronic means, even though persons necessary for the delivery or facilitation of the electronic communication may have access to the contents. [CPLR 4548.]
§25:93 ONLY COMMUNICATIONS, NOT OBSERVATIONS
The privilege applies only to communications between attorney and client. It does not apply to the observations an attorney makes of the condition of the client, which any other person could have observed and recognized. However, even when attorney observations are not, strictly speaking, subject to the privilege, courts are loath to require the attorney to testify to those observations.
Thus, in Giannicos v. Bellevue Hospital Medical Center, 7 Misc3d 403, 793 NYS2d 893 (Sup Ct NY Co 2005), the issue was whether plaintiff was entitled to the “insanity” toll provided by CPLR 208. If not, his claim was time-barred. Defendant sought to compel plaintiff’s lawyers to produce documents memorializing conversations with plaintiff, and to testify, concerning his condition, and their ability to communicate with him. The court quashed the subpoena. The documents were entitled to the attorney work product privilege. As to the attorneys’ testimony, while agreeing that the observations made by them of “demeanor, physical characteristics and mental capacity are not protected by the attorney-client privilege,” because “any member of the public could make these observations,” the court, nonetheless, quashed the subpoena. “Public policy mandates that they not be compelled to testify,” because “the practice of calling opposing counsel as a witness at trial is so offensive to our conception of the adversarial process. Courts have made clear that attorneys should, only in rare and special circumstances, be forced to testify against their own clients.” The court adopted the 3-prong test used in some federal cases. To take the testimony of opposing counsel, “a party must establish that ‘(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.’” Here, defendant failed to demonstrate that no other means exists – since there are many other sources of information concerning plaintiff’s capacity at the time the cause of action accrued – and, also fails the third prong.
b. Must Be in the Course of Professional Employment
§25:100 LITIGATION NOT NECESSARY
There is no requirement that the communication be related to litigation or an ongoing matter of any sort. Thus, it is not necessary that litigation be pending, or even anticipated. The purpose of the privilege is to allow and promote full and open communication between a client and attorney on all matters in which legal advice is sought.
§25:101 ATTORNEY-CLIENT RELATIONSHIP NECESSARY
A communication with a lawyer is privileged only if the communicant is a “client.” So, for example, when the trustee of a trust consults counsel with respect to trust matters, those communications arenot privileged as against the trust beneficiaries. The beneficiaries are the attorney’s true clients. There can be no privilege as against them. [Hoopes v. Carota, 142 AD2d 906, 531 NYS2d 407 (3d Dept 1988), aff’d, 74 NY2d 716 (1989); Beard v. Ames, 96 AD2d 119, 468 NYS2d 253 (4th Dept 1983) (corporate officials’ communications with counsel not privileged as against shareholders); Klein v. Zelen, NYLJ, Nov 4, 1999, p 28, col 3 (Sup Ct Suffolk Co 1999) (son of deceased, although not executor, consulted counsel with respect to possible claim by estate; privilege applied to communications); Marzarella v. Mount Sinai Medical Center, NYLJ, March 23, 2004, p 18, col 1 (Sup Ct NY Co) (narrative of the course of treatment plaintiff received at defendant hospital, prepared at the request of her lawyer, and given to him, is privileged; the court rejects the argument that the narrative was created as a memory aid and not to obtain legal advice);Coiro v. Fed Cap Custodial Service, Inc., NYLJ, August 25, 2004, p 18, col 1 (Sup Ct NY Co) (narrative prepared by plaintiff in advance of securing counsel, to show to prospective counsel, is privileged; it was created specifically to present to an attorney, and it was shown only to current counsel).]
Similarly, when counsel represents a corporation, communications by a corporate official, with a potentially adverse interest to the corporation, are not privileged. The official has no basis to assume that legal advice is being sought in an individual capacity. [Doe v. Poe, 189 AD2d 132, 595 NYS2d 503 (2d Dept1993).]
§25:102 PRIVILEGE COVERS BOTH SEEKING AND GIVING ADVICE
The privilege is limited to communications made in the course of professional employment. [CPLR 4503(a).]
The privilege obviously applies to communications from the client to the attorney. Protecting such communications is the whole purpose for the privilege. But the privilege also protects communications from the attorney to the client to the extent such communications are for the purpose of facilitating the rendition of legal advice or services. [Rossi v. Blue Cross, 73 NY2d 588, 542 NYS2d 508 (1989); Capitano v. Ford Motor Company, 15 Misc 3d 561 (Sup Ct Chautauqua Co 2007) (communications issued by in-house attorneys with respect to pending or anticipated litigation, which list documents required to be maintained, are privileged).]
§25:103 IN-HOUSE ATTORNEYS
The privilege is limited to communications relating to the rendition of legal advice. [See CPLR 4503(a) (communications must be made in the course of professional employment).] Thus, when the attorney is an employee of the client company, rather than outside counsel, there can be some classification difficulties. Often, in-house counsel serve business roles as well as legal roles. It then becomes necessary to distinguish between attorney-client communications, which are privileged, and business communications, which are not. [Rossi v. Blue Cross, 73 NY2d 588, 542 NYS2d 508 (1989).]
However, a communication that is a mix of privileged and non-privileged information does not destroy the immunity for the privileged communication. Thus, where a bank retained a law firm to conduct an internal investigation about possible acts of fraud by its own personnel in dealing with vendors, the law firm’s subsequent report remained privileged even though it contained a mixture of legal and business advice. The Appellate Division, First Department, concluded that because of the mixture of advice the report was not privileged, and was thus discoverable by a vendor. However, the Court of Appeals held that the inclusion of non-privileged information — while influencing whether the document would be protected in whole or only in part – did not destroy the immunity. [Spectrum Systems v. Chemical Bank, 78 NY2d 371, 581 NYS2d 1055 (1991).]
IN PRACTICE: Labels do not make the privilege
It certainly does not hurt to label a document “Privileged — Attorney-Client Communication,” or some equivalent. But courts will look to the reality of the relationship between the parties reflected in the communication.
c. Must Be a Confidential Communication
§25:110 FACTS COMMUNICATED NOT PRIVILEGED
Only communications are privileged, not facts. For example, if a witness at a deposition is asked a fact question, a response that the sole basis for the witness’s knowledge of the fact is a communication from counsel is insufficient because the privilege does not apply. Although the questioner may not ask for the substance of the conversation, the questioner may ask about the fact. [Kenford Co. v. Countyof Erie, 55 AD2d 466, 390 NYS2d 715 (4th Dept1977).]
Furthermore, a fact does not become privileged simply because it is restated or recorded in a privileged communication.
EXAMPLE (Observable fact):
Defendant-client truthfully confided to his lawyer, “I ran the red light.”
1. Plaintiff asks defendant: “What did you say to your lawyer about whether you ran the red light?”
Defendant’s response options:
May object and refuse to answer (because the communication is privileged), or
May answer the question, but doing so waives the privilege. (As holder, client has the right to waive the privilege.)
2. Plaintiff asks defendant: “Did you run the red light?”
Required response: Must answer the question (because the fact is not privileged).
3. Plaintiff asks defense counsel: “What did your client tell you about whether he ran the red light?”
Required response: Must object and refuse to answer (because the communication is privileged, and because counsel has an obligation to claim the privilege on the client’s behalf, and because counsel has an obligation not to reveal client confidences).
EXAMPLE (Mental state):
Client confided to lawyer, “I knew the deal was unfair when I signed the contract.”
The privilege applies to evidence that client told the lawyer that the client knew the deal was unfair.
The privilege does not apply to evidence that client knew the deal was unfair.
Thus, the privilege does not excuse client from answering the question, “Did you know before you signed the contract that the deal was unfair?”
§25:111 DOCUMENTS GIVEN TO LAWYER NOT PRIVILEGED
Since it is only the communication itself that is privileged, a client may not shield an otherwise discoverable document by placing it in the attorney’s custody. [United States v. Doe, 959 F2d 1158 (2d Cir 1992) (telephone records given by client to attorney in the course of obtaining legal advice are not privileged); Matter of Grand Jury Subpoena Dated June 30, 2003, 1 Misc3d 510, 770 NYS2d 568 (Sup Ct Suffolk Co 2003) (lawyers, given custody of a laptop by their client, which laptop might have been the instrumentality of a crime, can be compelled to testify before the Grand Jury as to the current whereabouts of the laptop).]
On the other hand, a document which is otherwise privileged — for example a document reflecting a spousal communication — does not lose its privilege by being conveyed to an attorney. [Matter of Vanderbilt, 57 NY2d 66, 453 NYS2d 662 (1982).]
§25:112 CLIENT’S IDENTITY AND LOCATION
Generally, the identity or the address of a client is not a communication intended to be confidential, and is therefore not privileged. Thus, an attorney may be compelled — on pain of contempt — to disclose a client’s address. [Matter of Jacqueline F., 47 NY2d 215, 585 NYS2d 552 (1979) (noting that, absent a litigation in which the client is a party, an attorney cannot be compelled to reveal a client’s identity; but further stating that every litigant has a right to know his or her opponent, and that a client’s identity and address are ordinarily not relevant to advice proffered by an attorney).]
However, the determination of whether the client’s name and address are privileged requires a case-by-case analysis. A client’s identity, as well as non-evidentiary information, may be privileged where disclosure might be inappropriate as inconsistent with the trust and duty assumed by an attorney. Thus, where there is a lawful purpose for confidential communication between attorney and client, even the client’s identity may be privileged. [Matter of Jacqueline F., 47 NY2d 215, 221, 417 NYS2d 884 (1979); and see Matter of D’Alessio [Gilberg], 205 AD2d 8, 617 NYS2d 484 (2d Dept 1994) (attorney not compelled to disclose name of client, a suspect in a hit-and-run case, when the client intended identification to be confidential).]
§25:113 RETAINER AND FEE ARRANGEMENTS
Retainer and fee arrangements are not ordinarily confidential communications related to the rendition of legal advice, and are not privileged. [Priest v. Hennessy, 51 NY2d 62, 67, 431 NYS2d 511 (1980) (payment of legal fees on behalf of another is not a confidential communication within the scope of the attorney-client privilege).]
The basis for this rule is that a communication concerning the fee to be paid has no direct relevance to the legal advice to be given. It is a collateral matter that, unlike communications that relate to the subject matter of the attorney’s professional employment, is not privileged. [Priest at 69.]
IN PRACTICE: Your bills may be discoverable
An attorney’s bills, reflecting fee arrangements, are not ordinarily privileged communications. That should give some pause, considering especially the modern trend of providing clients with the computer run of detailed time sheets filed by the attorneys working on a matter. However, it has been held that detailed bills, which reflect the work done by the attorney, are privileged. [Licensing Corp. v. National Hockey League Players’ Association, 153 Misc2d 126, 580 NYS2d 128 (Sup Ct NY Co 1992).]
§25:114 MULTIPLE CLIENTS
When an attorney jointly represents two parties with common interests, the communications between the attorney and one of the parties is not privileged with respect to the other. [Federated Associates v. Howard Johnson Co., Inc., 102 AD2d 841, 476 NYS2d 636 (2d Dept 1984).]
§25:115 THE “COMMON INTEREST” PRIVILEGE
The “common interest” privilege is actually a misnomer. It is the attorney-client privilege. The courts adopting the so-called “common-interest privilege” hold that the presence of parties with a “common interest,” and their lawyers does not waive an otherwise privileged communication. Thus, the attorney-client privilege applies to communications between clients and attorneys when there are two or more parties each with different attorneys, but with a common interest in an aspect of the lawsuit.
Criminal cases. It has long been the law in criminal cases that the attorney-client privilege is not lost for communications made in a meeting between clients and attorneys who share information in furtherance of a common defense. [People v. Osorio, 75 NY2d 80, 550 NYS2d 612 (1989); People v. Pennachio, 167 Misc2d 114, 637 NYS2d 633 (Sup Ct Kings Co 1995).]
Civil cases. It is clear that in federal cases the so-called “common interest” or “common defense” extension of the attorney-client privilege also applies in civil cases. [Eisenberg v. Gagnon, 766 F2d 770 (3d Cir 1985), cert den, 474 US 946 (1985).]
New York has not yet clearly established that a “common interest” among civil litigants will allow coverage of the attorney-client privilege with multiple attorneys or multiple clients. However, some courts have extended the rule to civil cases. [See Aetna Casualty and Surety Co. v. Certain Underwriters at Lloyd’s London, 176 Misc2d 605, 676 NYS2d 727 (Sup Ct NY Co 1998); Parisi v. Leppard, 172 Misc2d 951, 955, 660 NYS2d 307 (Sup Ct Nassau Co 1997) (stating that the purpose underlying the attorney-client privilege itself –- to foster the open dialogue that is essential to effective representation — remains constant, even if the legal context varies).]
This so-called “common interest” privilege, however, applies only to communications that are, in fact, subject to the attorney-client privilege. Thus, communications that were “exclusively of a commercial nature and did not concern the rendering of legal advice in pending or reasonably anticipated litigation” were not privileged, merely because those with a “common interest” were present. [Matter of Stenovich v. Wachtell, NYLJ, January 9, 2003, p 21, col 2 (Sup Ct NY Co).] Moreover, to be subject to the privilege, the communication made in the presence of those with a “common interest” must concern the “common interest” or “joint defense.” Even if the conversation concerns the rendition of legal advice, if the discussion concerns the claims the defendants have against each other, rather than their common interest vis a vis the plaintiff, the presence of the co-defendants will waive the attorney-client privilege. [Brooklyn Navy Yard Cogeneration Partners, L.P. v. PMNC, NYLJ, December 31, 2002, p 22, col 2 (Sup Ct Kings Co); Grande Prairie Energy LLC v. Alstom Power, Inc., NYLJ, October 25, 2004, p 19, col 1 (Sup Ct NY Co) (the “common interest” privilege “does not protect communications during complex commercial transactions simply because litigation often arises out of such transactions”).]
In 2006, the Appellate Division, Second Department, became the first appellate court in New Yorkto explicitly hold that the “common interest privilege” applies to civil cases. [U.S. Bank National Association v. APP International Finance Company, 33 AD3d 430 (2d Dept 2006) (“before a communication can be protected under the common interest rule, the communication must satisfy the requirements of the attorney-client privilege; that is, the communication must have been made for the purpose of facilitating the rendition of legal advice or services in the course of a professional relationship and have been primarily or predominantly of a legal rather than a commercial nature” [emphasis by the Court]).] Previously, the Appellate Division, First Department, had suggested the application of the “privilege” in Feygin v. Martell, 283 AD2d 304 (1st Dept 2001).
There, the court disqualified counsel where “in prior litigation the plaintiff and defendant, represented by her present counsel, had a joint strategy or common interest in which they were both aligned against Neways, Inc. This joint strategy or common interest created a type of attorney/client privilege between plaintiff and the attorney.”
That same court has also held, in 330 Acquisition Co., LLC v. Regency Savings Bank, 12 AD3d 214, 783 NYS2d 805 (1st Dept 2004), that “Supreme Court properly exercised its discretion, based on its realistic appreciation of the nonparty’s interlocking relationship with plaintiff, in finding that the communications between plaintiff and the nonparty were subject to the attorney-client common interest privilege. This was properly based on the special referee’s finding of their common legal interest.”
IN PRACTICE: Look for the rule to be applied more in civil cases
The court’s logic in Parisi v. Leppard is difficult to challenge. There appears to be no reason why the well-entrenched rule in criminal cases should be inapplicable in civil cases.
§25:120 AIDING COMMISSION OF A CRIME OR FRAUD
Communications between an attorney and a client are not privileged when:
The communication includes admission of a crime by the client, or
When the communications are designed to aid the client to commit a crime or a fraud.
[People v. Farmer, 194 NY 251 (1909); Matter of Associated Homeowners & Businessmen’s Organization, Inc., 87 Misc2d 67, 385 NYS2d 449 (Sup Ct NY Co 1976); Matter of Grand Jury Subpoena of Lynne Stewart, 144 Misc2d 1012, 545 NYS2d 974 (Sup Ct NY Co 1989); Superintendant of Insurance of the State of New York v. Chase Manhattan Bank, 43 AD3d 514 (3d Dept 2007); Sieger v. Zak, NYLJ, March 4, 2008, p 27, col 1 (Sup Ct Nassau Co).]
§25:121 ATTORNEY/CLIENT DISPUTES
A former client who sues for malpractice typically places in issue the attorney’s conduct, and the knowledge of the attorney based upon the communications between lawyer and client. Thus, in most malpractice actions, the plaintiff places the attorney-client communications in issue, and waives the privilege. [See Bennett v. Oot & Associates, 162 Misc2d 160, 616 NYS2d 163 (Sup Ct Tompkins Co 1994) (defendant attorney allowed to depose plaintiff’s current attorney as to what plaintiff told the current attorney about the information plaintiff allegedly provided to defendant).]
When the client, having terminated the services of the lawyer, retains another lawyer to complete the matter which underlies the malpractice action against the original counsel, issues may arise as to whether the privilege that would ordinarily attach to communications between the client and new counsel are waived. In IMO Industries, Inc. v. Anderson Kill & Olick, P.C., 192 Misc2d 605 (Sup Ct NY Co 2002), defendant law firm had represented plaintiff, simultaneously with another lawyer, with respect to the matters giving rise to the malpractice claim. After defendant’s withdrawal from the matter, the other lawyer continued to represent plaintiff with respect to that matter, which is now completed. The court concluded that the relevant communications between plaintiff and the other lawyer are not privileged. The court analogized to medical malpractice claims. The waiver of the physician-patient privilege which follows the placing of plaintiff’s physical condition in issue “encompasses subsequent treatment of the same injury, even if the alleged malpractice occurred before the patient consulted with other physicians.” Nor would divulging of the material prejudice plaintiff’s relationship with the other attorney, since the matter was completed.
§25:122 WILL DISPUTES
An attorney must disclose information about the preparation, execution, or revocation of any will or other relevant instrument in any action involving the probate, validity, or construction of a will. However, the attorney is not allowed to disclose any confidential communication that would tend to disgrace the memory of the decedent. [CPLR 4503(b).]
B. Work Product
§25:130 AN ABSOLUTE PRIVILEGE
An attorney’s “work product” is privileged. [CPLR 3101(c).]
And, like the attorney-client privilege, the attorney work product privilege is an absolute privilege. That is, it is never discoverable. So, it does not matter whether the work product material is otherwise unavailable to the demanding party without undue hardship, or even entirely unavailable.
CASE EXAMPLE: The interplay between the attorney-client privilege and the work product privilege
At issue were three documents – two from defendant’s lawyers to defendant, one between defendant’s employees – discussing the legal advice given by the lawyers. Plaintiff claimed that because defendant showed plaintiff’s president one of the communications from counsel, any privilege had been waived, and all three documents were now discoverable. Plaintiff’s president read part of the document, but did not obtain a copy. This disclosure, which was not inadvertent, waived the attorney-client privilege with respect to that document. It did not, however, waive the privilege for the entire subject matter of the document. The court declined to extend the waiver that far. Moreover, the court held that, even with respect to that document, “waiver of the attorney-client privilege does not prevent a document from being protected as work product of an attorney.” And, since plaintiff’s president was not given a copy of the document, the work product privilege was not waived. Finally, the court held that the communication between defendant’s employees was subject to the attorney-client privilege. [Charter One Bank, F.S.B. v. Midtown Rochester, LLC, 191 Misc2d 154, 738 NYS2d 179 (Sup Ct Monroe Co 2002).]
§25:131 FORM OF EVIDENCE
Unlike the attorney-client privilege (which applies to communications), work product applies to material, rather than communications. [Hoffman v. Ro-San Manor, 73 AD2d 207, 425 NYS2d 619 (1st Dept 1980).]
§25:132 PRODUCT OF AN ATTORNEY
Work product applies only to material created by an attorney. Furthermore, it applies only to those things that are uniquely the product of a lawyer’s learning and professional skills, such as materials that reflect the attorney’s legal research, analysis, conclusions, legal theory or strategy. [Hoffman v. Ro-San Manor, 73 AD2d 207, 425 NYS2d 619 (1st Dept 1980) (a list of “notice” witnesses, obtained through the attorney’s zeal as an investigator, isnot work product — the investigation did not require the unique skills of a lawyer; Kinge v. State of New York, 302 AD2d 667 (3d Dept 2003) (the work product privilege should be narrowly applied tomaterials prepared by an attorney, acting as an attorney, which contain his or her analysis and trial strategy).]
Thus, indices of documents are not work product. [Bloss v. Ford Motor Co., 126 AD2d 804, 510 NYS2d 304 (3d Dept1987).] And, when a witness dictates a statement to an attorney, and the attorney acts as a scribe, the statement is not work product. [Elstein v. Barenfeld, NYLJ, September 6, 1994, p 32, col 2 (Sup Ct Kings Co); Frawley v. Albrecht, 163 Misc2d 630, 621 NYS2d 800 (Sup Ct Nassau Co 1994).] Presumably, however, the attorney’s notes about the witness, which would reflect analysis and strategy, are work product.
Additionally, it has been held that, while the summary of services performed that is part of a lawyer’s bill to a client may be subject to the attorney-client privilege (unless waived), it is not work product. The preparation of such a summary, or the bill itself, is not dependent upon legal expertise, education or training. Similarly, status reports of pending litigation, provided to the client by the attorney, “are factual recitals, and not dependent on legal expertise or created to foster the attorney’s preparation.” [IMO Industries, Inc. v. AndersonKill & Olick, P.C., 192 Misc2d 605 (Sup Ct NY Co 2002).]
Documents prepared in the ordinary course of an insurance company’s investigation to determine whether to accept or reject coverage, and to evaluate a claim of loss, are not privileged, even when the investigation is conducted by an attorney. Work product only encompasses documents “prepared by counsel acting as such, and to 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.” [Brooklyn Union Gas Company v. American Home Assurance Company, 23 AD3d 190 (1st Dept 2005).]
§25:133 RELATED TO LITIGATION
Not everything created by a lawyer is protected by the work product privilege. To be privileged, the work product must be generated by the attorney “for the purpose of litigation.” [Coastal Oil New York, Inc. v. Peck, 184 AD2d 241, 584 NYS2d 564 (1st Dept 1992); Royal Indemnity Co. v. Saloman Smith Barney, Inc., NYLJ, July 8, 2004, p 18, col 1 (Sup Ct NY Co) (“A substantial and significant threat of litigation is required before a discovery opponent’s anticipation will be considered a reasonable and justifiable motivation for production of a document”).]
CAUTION: Drafts of transactional materials are not protected as work product
Attorney work product is limited to materials created by the attorney with respect to litigation — actual or contemplated. Therefore, early drafts of a contract, or other material created for a transaction, even if solely the product of an attorney’s skill and learning, are not privileged. Thus, when the intent of the parties to a contract may be gleaned by tracing the history of the negotiations through the trail of drafts, a party may not refuse to produce those drafts. Some transactional attorneys make a practice of disposing of early drafts once an agreement has been executed. This, of course, is a two-edged sword. It prevents an adversary from discovering and relying upon them. It also prevents the attorney’s client from relying upon them. And it is often difficult to know, in advance, what shape a future dispute may take.
§25:134 EXAMPLES: INFORMATION FROM A WITNESS
Interview notes: facts only. When you interview a witness and put in writing what the witness stated were the facts, in the witness’ own words, the “transcript” is not work product.
Interview notes: facts plus opinions. When you create a document that both reports on a witness interview and contains mental impressions, opinions, conclusions, or legal theories, that document is work product and is exempt from discovery.
Writing created by witness. When you ask a nonparty witness to create a written statement of facts of the case (i.e., a “witness statement”), that document is not attorney work product. [Salzer v. Farm Family Life Insurance Co., 280 AD2d 844, 721 NYS2d 409 (3d Dept 2001).]
§25:135 COMMUNICATING WITH EXPERTS
When counsel retains an expert to assist in an action, what the expert does, says or writes is not privileged. However, what counsel tells the expert, reflecting counsel’s theory of the case, is privileged as work product. However, whatever facts counsel provided to the expert, “in order for him to complete his expert report,” and were relied upon by the expert in reaching conclusions, are subject to disclosure. [Beller v. William Penn Life Insurance Company of New York, 15 Misc 3d 350 (Sup Ct Nassau Co. 2007).]
C. Material Created for Litigation
§25:140 QUALIFIED PRIVILEGE
Materials prepared in anticipation of litigation or for trial are protected by a qualified privilege. [CPLR 3101(d)(2).] This means that the materials are protected from discovery unless the party seeking is able to overcome the privilege.
§25:141 MUST BE PREPARED FOR LITIGATION
The privilege for material created for litigation covers all material created by a party specifically and solely for the purposes of litigation, such as expert reports, photographs of the scene, witness statements, and the like.
Moreover, to be privileged, the material must have been created for the current litigation. Materials prepared in the context of a different litigation, and not in anticipation of the current action, are not protected. [See Barcelar v. Pan, NYLJ, June 29, 2006, p 27, col 3 (Sup Ct Westchester Co).]
§25:142 SUBSTANTIAL NEED AND HARDSHIP
Material prepared for litigation may be discovered only upon a showing that the party seeking discovery both:
Has substantial need of the materials in the preparation of the case.
Is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Thus, for example, a photograph of the scene where plaintiff fell on ice, taken soon after the fall, was discoverable because the circumstances could not be duplicated, and the failure to produce the photograph would cause undue hardship to defendant. [O’Connell v. Jones, 140 AD2d 676, 529 NYS2d 19 (2d Dept 1988).]
When plaintiff’s attorney located two eye-witnesses and requested written statements, those statements, provided by the witnesses, were material created for litigation. When defendant had an opportunity to examine the witnesses “at length” in deposition, there was no showing of the sort of need that would overcome the qualified privilege. [Salzer v. Farm Family Life Insurance Co., 280 AD2d 844, 721 NYS2d 409 (3d Dept 2001).] However, when the statement given by a non-party witness is inconsistent in a material respect with his or her testimony at a deposition, the statement should be disclosed, because the other side has substantial need of it, and is unable to obtain its substantial equivalent. [Yasnogordsky v. City of New York, 281 AD2d 541, 722 NYS2d 248 (2d Dept 2001).]
§25:143 SETTLEMENT MATERIALS
Evidence of any conduct or statements made during settlement negotiations is inadmissible. [CPLR 4547.]
However, any evidence otherwise admissible is not rendered inadmissible simply because it was presented during the negotiation phase. [CPLR 4547.] And, evidence of settlement discussions may be admitted for limited purposes, such as to prove bias or prejudice of a witness or to negate a contention of undue delay. [CPLR 4547.]
IN PRACTICE: Stipulate at the outset that communications will not be divulged
Although settlement negotiations are considered to carry a privilege, clarify this with a stipulation.
§25:144 FILMS & TAPES (INCLUDING SURVEILLANCE TAPES)
With the exception of materials compiled for law enforcement purposes, all films, photographs, video tapes or audio tapes involving any party are discoverable. [CPLR 3101(i).] This lack of privilege for tapes and films applies to surveillance tapes designed to show plaintiffs engaging in physical activities inconsistent with their claims. [See DiMichel v. South Buffalo Railway, 80 NY2d 184, 590 NYS2d 1 (1992) (decided before enactment of CPLR 3101(i)).]
Discovery applies to all portions of such material, including out-takes, rather than only those portions a party intends to use. [CPLR 3101(i).] The producing party, however, is permitted to produce a copy, rather than the original, so long as the plaintiff had “an opportunity to examine the original if he chose to do so” [Zegarelli v. Hughes, 3 NY3d 64, 814 NE2d 795 (2004).]
DiMichel held that a defendant need not disclose a surveillance tape of a plaintiff until after the plaintiff was deposed. However, the Court of Appeals has held that the Legislature overruled DiMichel in that regard in enacting CPLR 3101(i), so that a plaintiff is entitled to disclosure of tapes upon demand, and without regard to whether the plaintiff has been deposed. [Tran v. New Rochelle Hospital MedicalCenter, 99 NY2d 383, 756 NYS2d 509 (2003).] However, the courts retain the power, pursuant to CPLR 3103, to direct, in any particular case, that the interests of justice require that plaintiff’s deposition be held before the tapes are produced. [See Falk v. Inzinna, 299 AD2d 120, 749 NYS2d 259 (2d Dept 2002).] CPLR 3101(i), as interpreted byTran, merely provides that defendant does not have an automatic right to a pre-production deposition. It does not preclude one. And, it is unclear what “on demand” means, since CPLR 3101(i) is silent as to the timing of production. One court, analogizing to the cases interpreting the requirement for production of expert disclosure pursuant to CPLR 3101(d) – which is also silent as to timing – has held that a court should consider “the element of unfair surprise, prejudice and the presence or absence of willful non-disclosure” in determining whether production has been made within a reasonable time after demand. [Hothan v. The Metropolitan Suburban Bus Co., NYLJ, November 21, 2002, p 24, col 3 (Sup Ct Nassau Co).]
Including transcripts and memoranda. In addition to the films and tapes themselves, any transcripts or memoranda of the films or tapes must also be disclosed. [CPLR 3101(i); Beckford v. Gross, 3 Misc3d 638, 774 NYS2d 316 (Sup Ct Monroe Co 2004).] However, this does not mean that all documents surrounding the creation of the tape must be disclosed. [Grossman v. Emergency Cesspool & Sewer Cleaners, Inc., 162 Misc2d 440, 617 NYS2d 422 (Sup Ct Queens Co 1994) (rejecting a demand for all surveillance reports, correspondence, memoranda, bills, invoices, and proof of payment for surveillance, investigative services reported, records, logs of all the parties’ names and addresses of all investigators and photographers).] Nor does the statute permit a deposition of the videographer. [Hicklen v. Broadway West Associates, 166 Misc2d 12, 630 NYS2d 897 (Civ Ct Kings Co 1995).] And material that is otherwise privileged does not become discoverable because it relates to a surveillance tape. [Marigliano v. Krumholtz, 159 Misc2d 596, 603 NYS2d 1020 (Sup Ct Queens Co 1993) (a memorandum concerning the potential use of a surveillance tape, otherwise protected as attorney work product, is not discoverable).]
IN PRACTICE: Rule not limited to surveillance tapes
The rule requires disclosure of any films, photographs, video tapes or audio tapes “involving” a party. So, for example, in a matrimonial action a husband, accused of physically abusing the children of the marriage, could have access to home movies in the custody of the wife, presumably showing him playing with the children. [Kosovsky v. Zahl, 165 Misc2d 164, 627 NYS2d 523 (Sup Ct NY Co 1995); Sgambelluri v. Recinos, 192 Misc2d 777, 747 NYS2d 330 (Sup Ct Nassau Co 2002) (in a personal injury action, defendant was entitled to a copy of the videotape taken at plaintiff’s post-accident wedding).] And it might even be argued that, when a lawyer informally interviews an employee of a corporate adversary [see Niesig v. Team I, 76 NY2d 363, 559 NYS2d 493 (1990)], if the lawyer decides to audio tape the conversation rather than just take notes, the audio tape is discoverable. This is not a likely outcome, but no court has as yet passed upon the issue.
§25:145 ACCIDENT REPORTS
Written accident reports prepared in the regular course of business operations or practices are discoverable. [CPLR 3101(g) (providing an exception for police reports prepared in the course of a criminal investigation).]
The difficulty in applying this rule is in determining whether an accident report is made in the regular course of business, or whether it is made solely for the purpose of expected litigation.
A multi-purpose accident report is subject to disclosure. [Westhampton Adult Home v. National Union Fire Ins. Co., 105 AD2d 627, 481 NYS2d 358 (1st Dept1984).] And even if the report is solely for the purpose of litigation, it is discoverable if it is the “regular course of business” to make such a report. [Crazytown Furniture v. Brooklyn Union Gas Co., 145 AD2d 402, 535 NYS2d 401 (2d Dept 1988); McLean v. Costco Wholesale Corp., N.Y.L.J., April 22, 2003, p. 18, col. 4 (Sup Ct Bronx Co) (“any written report of an accident prepared in the regular course of a business operation or practice is subject to discovery and is not accorded the protection afforded to reports to a liability insurer or material prepared for litigation”).] But if the report is produced for a liability carrier or an attorney, and is not part of the “regular course of business,” it is protected. [James v. Metro North Commuter Railroad, 166 AD2d 266, 560 NYS2d 459 (1st Dept 1990).]
Thus, insurance company investigative reports are generally protected as material created for litigation. [Lamberson v. Village of Allegany, 158 AD2d 943, 551 NYS2d 104 (4th Dept 1990); Gentile v. Wakeel, 135 Misc2d 301, 514 NYS2d 878 (Sup Ct Oneida Co 1987).] Similarly, statements made by a defendant to a personal liability insurance carrier constitute material prepared in contemplation of litigation so as to exclude them from discovery. [Recant v. Harwood, 222 AD 372, 635 NYS2d 231 (1st Dept 1995).] However, reports generated by an insurance company during the course of its investigation as to whether to pay its insured’s claim are not protected from disclosure, even if created by counsel. The payment or rejection of claims is part of the regular business of an insurance company. [Dolan v. Allstate Insurance Co., NYLJ, August 10, 2000, p 27, col 5 (Civ Ct Queens Co); Koramlyum v. Medvedovsky, 19 AD3d 651 (2d Dept 2005).]
The burden is on the party resisting disclosure to show that the materials sought were prepared solely for litigation. This burden is not satisfied by conclusory self-serving allegations. There must be a specific showing of the “number and types of reports prepared, the authors, recipients and dates on which they were prepared and the impetus for their preparation.” [Claverack Cooperative Insurance Company v. Nielsen, 296 AD2d 789, 745 NYS2d 604 (3d Dept 2002).]
Michael H. Barr is a partner with Sonnenschein Nath & Rosenthal in New York City. His practice concentrates on complex commercial, class action, insurance coverage, and securities litigation across a broad spectrum of substantive areas, including consumer fraud, environmental, insurance, trade regulation, real estate, professional liability, and contractual disputes.
Mr. Barr is presently serving as national coordinating counsel for an international insurer in defending a series of class actions involving retrospective premium workers’ compensation issues. Over the past five years, he has defended another major insurer against allegations of improper life insurance sales practices in a consolidated multi-district litigation in federal court and before a multi-state task force of state insurance departments.
He has successfully defended a broad array of other companies in bad faith and other insurance coverage actions, including numerous appeals. He has lectured and written on a variety of insurance coverage issues, and has delivered papers at seminars on advertising injury, securities coverage, and bad faith issues. He has also successfully represented investor groups, bank directors and public companies in contested securities and mergers and acquisition cases. Mr. Barr is a cum laude graduate of Harvard LawSchool.
The Honorable Myriam J. Altman served as an Associate Justice in the Appellate Division, Second Department, New York City from 1994 to 2004. She died on January 29, 2005.
Prior to her appointment as Associate Justice, she served as Judge of the Civil Court of the City of New York from 1978 to 1987 and Acting Justice of the Supreme Court from 1979 to 1997. She was elected Justice of the Supreme Court of the State of New Yorkin 1987. In 1993 she presided over one of the four new specialized commercial parts in New YorkCounty.
Justice Altman was chair of the Appellate Division’s In-house Continuing Legal Education Committee, and a member of the State Bar’s Standing Committee on Civil Practice Law and Rules. She was chair of the Litigation Committee of the Association of the Bar of the City of New York, and co-chair of the Office of Court Administration Committee on Case Management Education. She was a member of the Commercial Courts Task Force, and from 1988 to 1993 was a member of the State Commission on Judicial Conduct. In October 1996, July 1993, and October 1993, Justice Altman was found qualified for appointment to the Court of Appeals by the Commission on Judicial Nomination. She graduated from the NYU School of Law.
Burton N. Lipshie has since 1977 been the Managing Attorney of the 60-lawyer Litigation Department of Stroock & Stroock & Lavan in New York City, and the firm’s national litigation coordinator.
He is responsible for providing procedural expertise in all litigation matters handled by the New York City office, and for creating and running programs on litigation skills and advanced legal writing. He has a general litigation practice, with an emphasis on motions and appellate work.
Before joining Stroock, Mr. Lipshie was an Assistant District Attorney in New YorkCounty from 1967 to 1971, and Law Secretary to Justice Abraham Gellinoff, Supreme Court, New York County and Appellate Term, First Department from 1971 to 1977.
Since 1985, Mr. Lipshie has been an adjunct professor at Cardozo School of Law where he teaches New York Practice, Legal Writing, and Moot Court. For nine years in a row he was named “Outstanding Adjunct Professor” and now the award is named after him.
He serves on the Advisory Committee on Civil Practice to the Chief Administrative Judge, the CPLR Committee of the State Bar Association, and the Departmental Disciplinary Committee of the Appellate Division, First Department. He has provided the annual CPLR update at the Unified Court System annual judicial seminars since 1993, as well as the annual seminar for Law Clerks and Court Attorneys, and has delivered the annual Civil Law Update at the Bar Association of the City of New York.
Sharon Stern Gerstman has been the Principal Law Clerk for Hon. Joseph D. Mintz of the Eighth Judicial District (Buffalo) of the New York Supreme Court since 1981. She is also an adjunct professor at the University of Buffalo Law School, where she has taught New York Civil Practice since 1987.
Mrs. Gerstman is a former member of the ABA Board of Governors and currently serves in the ABA House of Delegates and on the Council of the ABA Section of Taxation. She is also a member of the New York State Bar Executive Committee and House of Delegates, and is immediate past chair of the State Bar’s Standing Committee on Civil Practice Law and Rules.
She is on the Professional Ethics Committee for the Bar Association of Erie County, and has served on its Board of Directors, on its Judicial Screening Committee and as past President of its Foundation. She was President of the Women Lawyers of Western New York.
She has written for various ABAand New York State Bar Publications, and has spoken frequently at ABA, New YorkState Bar, and Erie County Bar CLE seminars. She has a JD from the University of Pittsburghand an LLM from YaleLaw School.
They are the authors of, from which this article is excerpted.
By Leonard Bucklin
600-page guide to creating trial notebooks, full-text CD with over 100 forms, ready-to-use trial notebook.