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February 2019

Gordon & Rees New York Team Successfully Opposes a Plaintiff’s Motion Regarding Alleged Privileged Communications

Gordon Rees Scully Mansukhani’s Toxic Tort team in New York, led by partner Virginia Squitieri, and associate Mohammad Haque, obtained a significant victory in successfully opposing a plaintiff’s bid to withhold email communications between her non-party daughter and the plaintiff’s prior counsel under the guise of protection pursuant to the attorney-client privilege and work products doctrine.

The plaintiff initially retained counsel in Illinois to commence an action wherein she alleged second-hand exposure to asbestos from her husband’s work as well-driller.  The plaintiff thereafter voluntarily discontinued the Illinois action and retained new counsel in New York to commence an action wherein, this time, she alleged asbestos exposure through the use of cosmetic talcum products and baby powders.  Gordon & Rees represented one of the named talc defendants in the New York action.  During the plaintiff’s deposition, Squitieri was able to successfully probe the plaintiff regarding communications involving the plaintiff, her prior counsel, and the plaintiff’s non-party daughter. 

The plaintiff’s deposition revealed that certain emails were exchanged between the plaintiff’s prior counsel, the plaintiff, and the plaintiff’s daughter and Gordon & Rees attorneys immediately demanded disclosure of same. The plaintiff objected to turning over the emails and Gordon & Rees engaged the Special Master to mediate the discovery dispute.  Over the plaintiff’s objection, the Special Master agreed with the Gordon & Rees team that the disputed emails were discoverable and not protected under the attorney-client privilege.  The plaintiff made a motion to the trial court to vacate the Special Master’s recommendation and invoked protection of the disputed emails under the attorney-client privilege, common legal interest exception to a waiver of the attorney-client privilege, and the work products doctrine.  

In opposition to the plaintiff’s motion, the Gordon & Rees team argued that the Special Master’s recommendation was correct and should not be vacated. Contrary to the plaintiff’s argument, Gordon & Rees argued that the attorney-client privilege was waived because her daughter was a non-party to the Illinois and New York actions and the plaintiff did not rely on her daughter to facilitate legal communications between the plaintiff and her attorneys.  Moreover, considering that the plaintiff’s daughter was not involved in facilitating legal communications between the plaintiff and her attorneys, Gordon & Rees argued that the plaintiff failed to demonstrate the presence of common legal interest between the plaintiff and her daughter.  The Gordon & Rees team further argued that the plaintiff failed to invoke protection of disputed emails under the work-product doctrine during the plaintiff’s deposition or when presenting her objections before the Special Master and, regardless, the doctrine was inapplicable since the disputed emails involved a non-party.  

The trial court issued a written decision and affirmed the recommendation of the Special Master.  In its decision, the court noted that just because the communications involved a relative, it does not automatically create a presumption of protection under the attorney-client privilege.  In support of its reasoning, the court cited directly to the arguments and legal authority presented in Gordon & Rees' opposing papers.  The court directed the plaintiff to turn over the subject emails within 10 days of the order being served with notice of entry. 

There is a common trend in litigation where the plaintiffs refuse to disclose, otherwise, discoverable communications just because a relative may be involved in such communication on account of attorney-client privilege.  In this regard, the court’s decision is considerably helpful to defendants and provides much needed guidance in the future as to when communications involving a non-party will be deemed privileged.    

 

Mohammad M. Haque
Virginia Squitieri