That Counsel Might Have Relevant Evidence is Insufficient to Create At-Issue Privilege Waiver

On March 3, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Securitized Asset Funding 2011-2, Ltd. v. Canadian Imperial Bank of Commerce, 2020 NY Slip Op. 30700(U), holding that the fact that counsel might have relevant evidence is insufficient to create an at-issue waiver of privilege, explaining:

An at issue waiver of privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information. A party can also waive the attorney-client privilege by placing the subject matter of counsel's advice in issue and by making selective disclosure of such advice.

Here, CIBC maintains that it would not need to use any of the privileged evidence to support its defense to this action. Rather, there is ample other evidence in its possession, and in plaintiffs possession, that it intends to rely on to defend itself in this action. Further, plaintiff has failed to refer to any specific testimony showing that CIBC placed the subject matter of counsel's advice at issue and made selective disclosure of that advice. Plaintiff has not demonstrated that the failure to waive the privilege would cause any prejudice or deprive it of access to vital information, especially because there are other available means of discovery to prove the validity of the claims asserted here, namely, through discovery already provided.

(Internal quotations and 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.