Plaintiff Did Not Waive Privilege; Subpoena to Plaintiff's Counsel Should Have Been Quashed

On February 21, 2019, the First Department issued a decision in Henneberry v. Borstein, 2019 NY Slip Op. 01326, holding that the plaintiff did not waive the attorney-client privilege and that therefore a subpoena to the plaintiff's counsel should have been quashed, explaining:

The record does not establish that plaintiff affirmatively waived her attorney-client privilege with counsel in the action to vacate the arbitration award. A review of the complaint shows that plaintiff's claims do not need to be proved through the files from her counsel in the action to vacate the arbitration award. Defendants have not countered that showing or established that those files are vital to their defenses.

(Internal citations omitted).

An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.