| Roswell Park Cancer Inst. Corp. v Sodexo Am., LLC |
| 2009 NY Slip Op 09808 [68 AD3d 1720] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Roswell Park Cancer Institute Corporation,Appellant, v Sodexo America, LLC, Formerly known as Sodexho America, LLC, et al.,Respondents. |
—[*1] Cooley Manion Jones LLP, Boston, Massachusetts (Ellen M. Bates of counsel) and Bender,Crawford & Bender, LLP, Buffalo, for defendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered April8, 2009 in a breach of contract action. The order, insofar as appealed from, denied in part themotion of plaintiff to compel disclosure.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, defendants'alleged breach of a contract pursuant to which defendants were to provide certain design andconstruction services for plaintiff. During the course of discovery, plaintiff moved pursuant toCPLR 3124 to compel disclosure, seeking an order directing defendants to produce 146documents for an in camera review by Supreme Court. Defendants had refused to produce thosedocuments based on their assertion that the documents in question were protected by theattorney-client privilege, constituted attorney work product or were produced in anticipation oflitigation. The withheld documents consist of e-mail communications and attachments thereto.Following an in camera review, the court determined that defendants were required to produce49 of the documents, some of which were to be partially redacted. On appeal, plaintiff challengesthose parts of the court's determination with respect to 32 of the documents in the group ofdocuments characterized by the court as exhibit "A" to its decision. The authors of thosedocuments were not attorneys, nor were they sent to attorneys or copied to attorneys. Plaintiffalso challenges 14 of the documents in the group of documents characterized by the court asexhibit "B." Those documents indicate that defendants' in-house counsel was copied in as arecipient. We affirm.
It is well settled that a court is vested with broad discretion to control discovery and that[*2]the court's determination of discovery issues should bedisturbed only upon a showing of clear abuse of discretion (see J.G. v Zachman, 34 AD3d 1277, 1278 [2006]; Cerasaro v Cerasaro, 9 AD3d 663[2004]). "[W]hether a particular document is or is not protected [by the attorney-client privilege,the attorney work product privilege or as material prepared in anticipation of litigation] isnecessarily a fact-specific determination . . . , most often requiring in camerareview" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]; seeBaliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030 [2000]). We perceive no abuse ofdiscretion in this case.
Here, in response to plaintiff's document production demands, defendants produced acomprehensive "Privilege Log," setting forth the names of the author of each document in the"Privilege Log," the persons to whom each document was sent, the date on which each documentwas sent and a description of each document. Defendants' in-house counsel submitted anaffidavit in which he described his participation in the fact-gathering process that was incident tohis provision of legal advice to defendants, as opposed to business advice, in response to thedifficulties encountered by defendants with respect to the projects in question and in satisfyingplaintiff's concerns. While a court is not bound by the conclusory characterizations of in-housecounsel that his or her involvement was for the purpose of rendering legal advice, we perceiveno justification for disregarding the contents of the affidavit submitted by in-house counseldescribing his involvement as constituting legal rather than business advice (see SpectrumSys. Intl. Corp., 78 NY2d at 380; New York Times Newspaper Div. of N.Y. Times Co. vLehrer McGovern Bovis, 300 AD2d 169, 171 [2002]). Defendants' in-house counsel furtherstated in his affidavit that in December 2005 he had a conversation with a high-ranking memberof defendants' management team and requested that defendants' employees assemble informationconcerning the status of the project for use in his legal analysis concerning defendants' potentialliability. "[T]here is nothing in the law governing attorney-client privilege that precludes theprivilege from attaching to client communications made in response to oral requests byattorneys" (New York Times Newspaper Div. of N.Y. Times Co., 300 AD2d at 172).The same reasoning applies when counsel asks high level corporate officers to have lower levelofficers or assistants gather facts and information incident to the provision of legal advice(see Orbit One Communications v Numerex Corp., 255 FRD 98, 104 [SD NY 2008]).
In any event, upon our own in camera review of the documents in question, as well as theundisputed facts in the record, we conclude that defendants established that 31 of the 32documents in exhibit "A" challenged by plaintiff on appeal were created as part of in-housecounsel's fact-gathering process and investigation that formed the basis for in-house counsel'slegal advice and legal services (see Spectrum Sys. Intl. Corp., 78 NY2d at 379). Wefurther conclude that 13 of the 14 documents in exhibit "B" challenged by plaintiff on appeal arenot subject to disclosure inasmuch as they constitute privileged attorney-client communications.Finally, with respect to the two remaining documents challenged by plaintiff on appeal, i.e.,document 19 in exhibit "A" and document 8 in exhibit "B," we conclude that they were notsubject to disclosure because they were prepared in anticipation of litigation (see CPLR3101 [d] [2]). Present—Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.