holding that "[t]here is no accountant-client privilege in [New York]"Summary of this case from Trump v. Mazars U.S., LLP
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Allan J. Arffa of counsel), for appellant-respondent. Kasowitz, Benson, Torres & Friedman, LLP, New York (Marc E. Kasowitz of counsel), for respondent-appellant.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Allan J. Arffa of counsel), for appellant-respondent.
Kasowitz, Benson, Torres & Friedman, LLP, New York (Marc E. Kasowitz of counsel), for respondent-appellant.
TOM, J.P., ACOSTA, MOSKOWITZ, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 17, 2016, which granted nonparty Isaac Perlmutter's motions for protective orders against disclosure of certain allegedly privileged items to the extent of directing respondent Marvel Entertainment, LLC (Marvel) to produce certain privilege log items allegedly subject to the marital privilege for in camera review, and otherwise denied the motions, unanimously modified, on the law and the facts, to deny so much of Perlmutter's motions as sought protective orders on the ground of marital privilege, to direct Marvel to produce to Supreme Court all items in Perlmutter's privilege log in which he asserts attorney work product protection, and to remand the matter to Supreme Court for in camera review and a determination of whether such documents are in fact protected attorney work product, and otherwise affirmed, without costs.
Application of the four factors set forth in In re Asia Global Crossing, Ltd. , 322 B.R. 247, 257 (Bankr.S.D. N.Y.2005), which we endorse (see also e.g. Scott v. Beth Israel Med. Ctr. Inc., 17 Misc.3d 934, 941, 847 N.Y.S.2d 436 [Sup.Ct., N.Y. County 2007] ), indicates that Perlmutter lacked any reasonable expectation of privacy in his personal use of the email system of Marvel, his employer, and correspondingly lacked the reasonable assurance of confidentiality that is an essential element of the attorney-client privilege (see Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983  ). Among other factors, while Marvel's email policies during the relevant time periods permitted "receiving e-mail from a family member, friend, or other non-business purpose entity ... as a courtesy," the company nonetheless asserted that it "owned" all emails on its system, and that the emails were "subject to all Company rules, policies, and conduct statements." Marvel "reserve[d] the right to audit networks and systems on a periodic basis to ensure [employees'] compliance" with its email policies. It also "reserve [d] the right to access, review, copy and delete any messages or content," and "to disclose such messages to any party (inside or outside the Company)." Given, among other factors, Perlmutter's status as Marvel's Chair, he was, if not actually aware of Marvel's email policy, constructively on notice of its contents (see People v. Puesan, 111 A.D.3d 222, 229, 973 N.Y.S.2d 121 [1st Dept.2013], lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917  ; Long v. Marubeni Am. Corp., 2006 WL 2998671, *3, 2006 U.S. Dist. LEXIS 76594, *9 [S.D.N.Y., Oct. 19, 2006, No. 05–Civ–639(GEL)(KNF) ] ).
Perlmutter's use of Marvel's email system for personal correspondence with his wife waived the confidentiality necessary for a finding of spousal privilege (see CPLR 4502[b] ; In re Reserve Fund Sec. & Derivative Litig., 275 F.R.D. 154, 159–160 and n. 2, 164 [S.D.N.Y.2011] ; United States v. Etkin, 2008 WL 482281, *5, 2008 U.S. Dist. LEXIS 12834, *19–20 [S.D.N.Y., Feb. 19, 2008, No. 07–CR–913(KMK) ] ).
Given the lack of evidence that Marvel viewed any of Perlmutter's personal emails, and the lack of evidence of any other actual disclosure to a third party, Perlmutter's use of Marvel's email for personal purposes does not, standing alone, constitute a waiver of attorney work product protections (see People v. Kozlowski, 11 N.Y.3d 223, 246, 869 N.Y.S.2d 848, 898 N.E.2d 891 , cert. denied 556 U.S. 1282, 129 S.Ct. 2775, 174 L.Ed.2d 272  ; Bluebird Partners v. First Fid. Bank, N.J., 248 A.D.2d 219, 225, 671 N.Y.S.2d 7 [1st Dept.1998], lv. dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229  ). We accordingly modify to the extent indicated (see Kozlowski, 11 N.Y.3d at 244 n. 12, 869 N.Y.S.2d 848, 898 N.E.2d 891 ; Matter of Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434, 442, 757 N.Y.S.2d 507, 787 N.E.2d 618  ).
There is no accountant-client privilege in this state (see First Interstate Credit Alliance v. Andersen & Co., 150 A.D.2d 291, 292, 541 N.Y.S.2d 433 [1st Dept.1989] ). Perlmutter has failed to bear his burden of showing that the evidentiary law of Florida, which he asserts does recognize an accountant-client privilege, should govern this issue (see Schultz v. Boy Scouts of Am., 65 N.Y.2d 189, 202, 491 N.Y.S.2d 90, 480 N.E.2d 679  ; Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 204, 962 N.Y.S.2d 282 [2d Dept.2013] ; First Interstate Credit Alliance, 150 A.D.2d at 292–293, 541 N.Y.S.2d 433 ).
Perlmutter's reliance on the agency and common interest doctrines is unavailing, as those doctrines do not in and of themselves constitute a source of privilege, and there is no basis for applying them in this case (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 630, 36 N.Y.S.3d 838, 57 N.E.3d 30  [common interest]; People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183  [agency] ).
We have considered the appealing parties' remaining contentions and find them unavailing.