Defendant demonstrated that documents sought by Claimant were both irrelevant and protected by attorney-client privilege. Claimant's motion to compel denied.
|Claimant(s):||JANET E. ENOCH, STEVE O. HINDI, MICHAEL KOBLISKA|
|Claimant short name:||ENOCH|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the State of New York as the only proper defendant.|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||LAW OFFICES OF NORA CONSTANCE MARINO,
By: Nora Constance Marino, Esquire
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Kevin A. Grossman, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 2, 2021|
|See also (multicaptioned case)|
In their claim filed on June 26, 2017, Claimants (all members of an animal rights group) allege that on November 13, 2016, while they were legally surveilling Marshall Farms in Wayne County New York, they were illegally stopped and arrested by members of the New York State Police and the Wayne County Sheriff's Department. Claimants have alleged causes of action sounding in: false arrest; malicious prosecution; negligence; intentional infliction of emotional distress; excessive use of force, and negligent hiring, training and retention of the officers involved in the incident. Claimants also allege multiple constitutional violations and request punitive damages.
With this motion, Claimants seek to compel Defendant to produce documents in its possession that Defendant alleges are the attorney work- product of counsel for Marshall Farms in one of the related Supreme Court actions commenced by Claimants against individual law enforcement officers and Marshall Farms employees.
In support of their application, Claimants correctly point out that the alleged attorney-client privilege is that of a third party, and that Defendant is neither the attorney nor the client in that relationship. Claimants argue that Defendant, therefore, has no standing to assert the attorney-client privilege. Claimants further urge that the fact that the materials were provided to the State, even if inadvertently, waives any privilege that did exist.
In response to Claimants' motion, Defendant argues that the materials were created after the events that form basis of the claim and are, therefore, irrelevant. Defendant also points out the interconnection between this claim and the Supreme Court actions noting the "multitude of depositions consisting of Claimants, Troopers, Sheriffs, and numerous employees from Marshall Farms." (Grossman Affirmation ¶ 3).
I note that Claimants have not addressed Defendant's argument that the materials, all prepared after the events alleged in the claim, are irrelevant to the prosecution of this claim. As the materials were prepared after the events that form the basis of the claim, I find that they are not relevant to this claim (People v Laviscount, 116 AD3d 976 [2d Dept 2014]; People v Oquendo, 221 AD2d 223 [1st Dept 1995]).
Further, and more importantly, I find that the attorney-client privilege has not been waived. "While the privilege is generally waived by voluntary disclosure of the communication to another party, the privilege is not waived by disclosure of communications to a party that is engaged in a "common legal enterprise" with the holder of the privilege (United States v Schwimmer, 892 F2d 237 [2d Cir. 1989]). Although Claimants were required to bring their action against the State of New York in the Court of Claims, this does not mean that this action is not closely related to Claimants' Supreme Court actions. As stated by the Appellate Division, First Department:
"Supreme Court properly exercised its discretion, based on its realistic appreciation of the nonparty's interlocking relationship with plaintiff, in finding that the communications between plaintiff and the nonparty were subject to the attorney-client privilege." (330 Acquisition Co., LLC v Regency Savings Bank, F.S.B., 12 AD3d 214 [1st Dept 2004]).
Here, I find that Defendant and the Defendants in the Supreme Court actions "share a common legal interest in litigation or anticipated litigation" and for this reason the attorney-client privilege was not waived (Ambac Assurance Co., v Countrywide Home Loans, Inc., 27 NY3d 616, 622 ; Newmark Group, Inc., v Avison Young [Canada] 2020 WL 5514156).
Accordingly, it is hereby
ORDERED, that Claimants' motion is denied in its entirety.
December 2, 2021
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Claimants' Notice of Motion filed July 16, 2021;
2) Affirmation of Nora Constance Marino, Esq., dated July 16, 2021, with exhibits;
3) Affirmation of Kevin A. Grossman, Esq., dated September 22, 2021, with exhibits;
4) Affirmation of Matthew Piston, Esq., dated September 9, 2021;
5) Affidavit of Scott Marshall, sworn to September 8, 2021;
6) Reply Affirmation of Nara Constance Marino, Esq., dated September 28, 2021;
7) Filed Documents: Claim and Verified Answer.