Court Grants, In Part, Motion To Compel Purportedly Privileged Documents

On November 29, 2024, Justice Joel M. Cohen issued a Decision and Order in ARC NYWWPJV001, LLC v. WWP JV LLC, Index No. 654977/2024, granting a motion, in part, to compel production of purportedly privileged documents. Defendant had inadvertently produced two allegedly privileged documents and sought to claw them back. Plaintiff and Counterclaim Defendant moved to require Defendant to “‘produce’ (again)” these documents. The Court granted the motion as to one document and denied it as to the other. The Court explained:

The first document (the "Fields Analysis") was prepared by Steven Fields, in-house counsel at RXR Realty LLC ("RXR")…[and] was forwarded by an RXR representative to” a different party, SLG. The second exhibit (the "Isaacson Email")-an email from Drew Isaacson to David Schonbraun (copying Daniel Wedman), all of whom were employed in business roles at SLG-contained a bullet point regarding the subject of this litigation, and suggested that in-house counsel "should confirm" the position taken in the bullet point…

Here, WWP has not shown that Mr. Fields was representing WWP when drafting the document. The document identifies Mr. Fields as RXR 's in-house counsel, and references SLG' s counsel's points responding to Mr. Fields's analysis (NYSCEF 141). There is no evidence that that Mr. Fields was separately retained by WWP (or, for that matter, SLG). Moreover, even if Mr. Fields had been representing WWP, WWP has failed to demonstrate why sharing confidential [sic] its (or RXR' s) counsel's advice with SLG would not constitute a waiver of the privilege…

This Isaacson Email contains a privileged communication and was properly redacted. The fact that the redacted communication is between SLG business personnel does not preclude a finding of privilege when, in context, it constitutes a request for legal advice (United States v DeFonte ( 441 F3d 92, 95-96 [2d Cir 2006]). Here, the redacted paragraph sets forth a proposed legal conclusion for review by counsel (see NYSCEF 142, at 2). The communication was forwarded to counsel the same day (NYSCEF 173). The Court finds that the unredacted version of the Isaacson Email is appropriately withheld as privileged.

The attorneys at Schlam Stone & Dolan frequently litigate discovery disputes concerning privilege issues. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.