Opinion
INDEX NO. 104204/2010 MOTION SEQ. 003
01-25-2013
ROBERT YOUNG, as assignee of J.R.C. PRODUCTIONS, INC., d/b/a PRODUCTION EAST VIDEO, Plaintiff, v. UTICA FIRST INSURANCE CO., Defendant.
PRESENT: Hon. DORIS LING-COHAN , Justice
DECISION/ORDER
The following papers, numbered 1 - 5 were considered on this motion to, inter alia, dismiss plaintiff's complaint for failing to comply with discovery:
+----------------------------------------------------------------------------+ ¦Papers ¦Numbered¦ +-------------------------------------------------------------------+--------¦ ¦Notice of Motion/Order to Show Cause - Affidavits - Exhibits (Memo)¦1.2 ¦ +-------------------------------------------------------------------+--------¦ ¦Answering Affidavits - Exhibits (Memo) ¦3 ¦ +-------------------------------------------------------------------+--------¦ ¦Replying Affidavits ¦4 ¦ +----------------------------------------------------------------------------+ Cross-Motion: [ ] Yes [X] No This declaratory judgment/breach of contract action as commcnced by plaintiff Robert Young ("Young"), as assignee of J.R.C. Productions, Inc., d/b/a-Production East Video ("JRC"), seeking recovery from defendant Utica First Insurance Co. ("Utica First"), for a consent judgment entered into between Young and JRC, in an underlying personal injury action, relating to injuries Young allegedly sustained on February 20, 2004, while working as a subcontractor of JRC. At the time of the accident, JRC was insured by Utica First, however, Utica First denied coverage to JRC, citing a breach of the policy's notice provision. Thereafter, JRC entered into a consent judgment, in the underlying personal injury action, in the amount of $950,000 and Young received an assignment of the claims JRC had against Utica First. Young commenced the within action against Utica First for the recovery of the $950,000 consent judgment. During the course of the exchange of documentary discovery in the within action, Young's attorney in the underlying personal injury action, David Durkee ("Durkee"), supplied to Utica First, a letter dated September 18, 2008, which Durkee had sent to his client Young, in the context of the personal injury action. In such letter, Durkee recommended to Young that a settlement in the amount of $350,000, be demanded from JRC. Based upon the disclosure of the September 18, 2008 letter, Utica First demanded from plaintiff, Durkee's entire file that he maintained with respect to his representation of Young in the underlying personal injury action, including all documents Young and/or Durkee contend are subject to the attorney-client privilege and/or attorney work product. The court notes that it is undisputed that plaintiff did in fact respond to defendant's discovery demands by providing over 400 documents, as well as a privilege log, however, defendant argues herein that plaintiff's responses are insufficient and seeks dismissal of the complaint or, in the alternative, that plaintiff be compelled to supply the entire case file, pertaining to the underlying Young personal injury matter.
Defendant's Motion to Dismiss
Based upon the submissions, the portion of defendant's motion which seeks to dismiss plaintiff's complaint, pursuant to CPLR §3126(3), for failure to comply with discovery demands is denied, as defendant failed to establish that plaintiff's conduct was deliberate and contumacious to warrant the extreme sanction of striking plaintiff's complaint. See See Bassett v. Bando Sangsa Co., Ltd, 103 AD2d 728 (1st Dept 1984); Sieden v. Copen, 170 AD2d 262 (1st Dept 1991). It is clear from the submissions that plaintiff's conduct was not deliberate or contumacious, to warrant the extreme sanction of dismissal. It is undisputed that over 400 documents were supplied in response and a privilege log was supplied. Rather, as detailed below, there is a dispute between the parties as to whether the attorney/client privilege was waived in the underlying personal injury action and as to whether the demanded documents are subject to disclosure.
Defendant's Motion to Compel
Defendant moves to compel plaintiff to respond to all outstanding discovery demands, pursuant to CPLR §3124, and, in particular, to provide copies of all purportedly privileged documents. Utica First argues that the content of the September 18, 2008 letter, indicating a $600,000 discrepancy between what Young may have been willing to settle for and the amount of the consent judgment, supports their affirmative defense and counterclaim that the consent judgment of $950,000 was unreasonable, fraudulent, collusive and in bad faith. Utica First asserts that, since plaintiff placed the reasonableness of the $950,000 consent judgment at issue, Young has waived his attorney-client privilege with respect to Durkee's representation of him in the underlying lawsuit, which "requires the disclosure of every single document contained within...attorney [Durkee's] file. Tf37, Affirmation in Support of Notice of Motion. Utica First further argues that Young deliberately waived the attorney-client privilege and the work product doctrine, when he disclosed the September 18, 2008 letter from Durkee, recommending a demand of $350,000. In opposition, Young argues that the disclosure of the September 18, 2008 letter was inadvertent, during Young's disclosure of approximately 400 other documents, and that such letter is privileged, as it was a communication between attorney and client, obviously made in confidence and with the reasonable expectation of privacy in the course of a professional relationship. Young further argues that pursuant to section 4.4(b) of the New York Rules of Professional Conduct, upon receipt of the inadvertent disclosure of the September 18, 2008 letter, Utica First's counsel had an obligation to "promptly notify" Young's counsel, since it was clearly a privileged communication. In its opposition papers, Young submits an affidavit by attorney Durkee, in which he explains the circumstances surrounding the inadvertent exchange of the September 18, 2008 letter and states that the disclosure of the letter was not intentional. CPLR §3101 mandates that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action...". The Court of Appeals has stated that the words "material and necessary" are to be liberally construed "to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 (1968)(emphasis supplied). Thus, the CPLR "requires the disclosure of all evidence relevant to the case and all information reasonably calculated to lead to relevant evidence." See Siegel, New York Prac. § 344, at 551 (4th ed 2005). Nevertheless, a court may shield items from disclosure, where a valid privilege has been established. See Anonymous v. High School for Environmental Studies, 32 AD3d 353 (2006). The burden of establishing that documents sought are covered by a certain privilege rests on the party asserting the privilege. Id. at 359. The attorney-client privilege, codified in CPLR §4503 (a) (1), protects a "confidential communication made between the attorney or his or her employee and the client in the course of professional employment". Such privilege "exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his legal embarrassment or legal detriment". Matter of Priest v. Hennessy, 51 NY2d 62, 67-68 (1980); see also Matter of Vanderbilt, 57 NY2d 66 (1982). As stated, the party asserting the privilege has the burden of establishing entitlement to it. Id. at 69. Moreover, the attorney-client privilege may be waived or the alleged privileged information required to be produced, where such information sought to be protected has been placed at issue by the party seeking to enforce the privilege. See CPLR 4503; Oreo Bank, N. V. v. Proteinas Del Pacifico, S.A., 179 AD2d 390 (1st Dept 1992). A client waives the privilege when he or she voluntarily testifies as to the privileged matter or discloses the information. See New York Times Newspaper Division of the The New york Times Co. v. Lehrer McGovern Bovis, Inc., 300 AD2d 169 (1st Dept 2002); Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d 834 (2nd Dept 1983). Further, the privilege will be waived where the purportedly privileged information is required to determine the validity of a claim or defense. See Deutsche Bank Trust Co. of America v. Tri-Links Investment, 43 AD3d 56 (1st Dept 2007); Oreo Bank, N.V., 179 AD2d at 390-91 Whether a particular document is or is not protected by a privilege is necessarily a fact specific determination, usually requiring an in camera review. Spectrum Sys. Intl. Corp., 78 NY2d 371 (1991). Here, Young disclosed the September 18, 2008 letter which explained the reasons for the $350,000 recommended offer of settlement and, thus, arguably the attorney-client privilege was waived. Moreover, by commencing this lawsuit and putting the reasonableness of the $950,000 consent judgment at issue, communications which discuss the differences in the initial demand and the final consent judgment, are relevant to the issues in this lawsuit, and, therefore, will be subject to disclosure. Nevertheless, whether a particular document is or is not protected by a privilege is necessarily a fact specific determination, this court will review the withheld documents, in camera, as detailed below. Spectrum Sys. Intl. Corp., 78 NY2d 371 (1991). It is noted that while plaintiff argues that the disclosure of the September 18, 2008 letter was inadvertent, plaintiff fails to explain why no objection was made to the initial use of the letter by defendant, when defendant supplied it as an exhibit, in response to plaintiff's motion to admit attorney Durkee, pro hac vice. Exh. 1, Reply Affirmation. As stated, however, regardless of whether the letter was provided to defendant intentionally or inadvertently, since the letter bears directly on the issue of the reasonableness of the consent judgment, the attorney-client privilege has been waived with respect to such document; as to the other documents withheld by plaintiff, an in camera review is necessary. Upon the foregoing papers, it is
Similarly, pursuant to Florida Statute §90.507, a client waives his attorney-client privilege where he voluntarily discloses or consents to the disclosure or consents to the disclosure of otherwise privileged communication.
Florida law also provides that the attorney-client privilege and work product doctrine are waived where the "party seeking to avoid discovery has injected into litigation issues going to the very heart of the litigation". GAB Bus. Serv. v. Syndiate 627, 809 F.2d 755, 762 (11th Cir. 1987)(citations omitted). "It is the rule in Florida that a party who bases a claim on matter which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived the privilege". Home Ins. Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 2d DCA 1983).
ORDERED that defendant's motion to, inter alia, dismiss plaintiff's complaint for failing to comply with discovery is granted to the following limited extent:
(1) Within 20 days of the date of this order, plaintiff shall supply to the Court for in camera review, all documents redacted or withheld by plaintiff; in addition to the documents, plaintiff shall supply the privilege log previously supplied to defendant, in accordance with CPLR 3122(b), with a copy to plaintiffs. All submissions shall be sent to the Court, with a copy of this order attached to the outside of the envelope containing such submission, to the following address: Hon. Doris Ling-Cohan, Supreme Court, NY County, 60 Centre Street, Room 428, New York, NY 10008, ATTN: Donna Albano.It is further
ORDERED that the discovery conference scheduled for January 24, 2013 is adjourned to February 22, 2013, to confirm receipt of the in camera documents, NO APPEARANCE OF THE PARTIES REQUIRED; thereafter, a new conference date will be scheduled; it is further
ORDERED that all parties shall be deposed on or before March 1, 2013; if the parties can't agree, the depositions shall commence on Februay 25, 2013 and continue day to day until completed; supplemental depositions may be conducted after the in camera review, however, party depositions must be completed, as provided herein, and shall not be delayed due to the pending in camera review:
ORDERED that within __ days ____, defendant shall serve a copy of this order upon plaintiff, with notice of entry. Check One: [ ] FINAL DISPOSITION [X] NON-FINAL DISPOSITION Check if Appropriate: [ ] DO NOT POST