Litigant Waived Privilege By Failing Timely to Cure Inadvertent Production of Privileged Document

On March 5, 2021, Justice Masley of the New York County Commercial Division issued a decision in Alrose Steinway, LLC v. Jaspan Schlesinger, LLP, 2021 NY Slip Op. 30620(U), holding that a litigant waived the attorney-client privilege by failing timely to cure the inadvertent production of a privileged document, explaining:

Here defendants fail to meet their burden of proving that the attorney-client privilege was not waived. Even assuming that the attorney-client privilege attached to the 2/9 Email, the privilege was waived by defendants' failure to wait until November 27, 2019 to file an OSC seeking a protective order, 10 months after learning of the alleged inadvertent disclosure.

It is the burden of the proponent of the privilege to prove that the privilege was not waived. For instance,

disclosure of a privileged document generally operates as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer under prejudice if a protective order against use of the document is issued.

Again, assuming that such a privilege existed, it was waived by the defendants' lack of due diligence. After plaintiff refused to return the 2/9 Email, defendants waited an unreasonable 10 months to take any action to remedy the situation. Even after this court expressly welcomed defendants to bring an OSC in March 2019, which they could have filed at any time after learning of the disclosure, still no action was taken to remedy the situation until November 2019. The lack of defendants' due diligence to remedy the disclosure of this document cannot be ignored, and thus, any existing privilege was waived.

(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.