Common Interest Privilege Does No Protect Materials Produced to the Federal Emergency Management Agency

On March 9, 2021, Justice Borrok of the New York County Commercial Division issued a decision in New York Univ. v. Turner Constr. Co., 2021 NY Slip Op. 30823(U), holding that the common interest privilege does not protect materials produced to the Federal Emergency Management Agency, explaining:

Turner's motion to compel is granted. The common interest doctrine does not protect production of the Federal Emergency Management Agency's (FEMA) materials. For the common interest privilege to apply, it would mean that FEMA would either sue the same party or be sued by the same party and seek to assert the same kind of defenses arising out the same or similar facts. Although it is true that the common interest privilege contemplates that parties to the common interest privilege may have their own interests that may diverge, it does not change the fact that for the common interest to apply, both parties to the common interest privilege must each be potential litigants that want information. FEMA is not that because Turner was never adverse to FEMA as there is no privity or basis for a claim either by Turner or by FEMA against one another. Accordingly, the application of the common interest doctrine fails. NYU has its own interests for giving FEMA information and while it may decrease the overall outflow from FEMA, this does not create a common interest privilege. Moreover, NYU has not asserted that the information given to FEMA was for an independent investigation by FEMA of Turner. Finally, the record does not indicate that FEMA indicated that the information would be kept confidential or subject to some claim of privilege. Turner's motion to compel is therefore granted and it shall produce the FEMA materials within 20 day from this decision and order.

(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.