Berk v. Riverbay Corp.

Summary

The Appellate Division, First Department affirmed an order denying Linda Berk’s motion to compel disclosure of an investigation report prepared by Riverbay Corporation’s general counsel. The court held that the report was protected by attorney-client privilege and work-product protections, that disclosure during a closed executive board meeting did not waive the privilege, and that Berk could not waive Riverbay’s privilege as a former board president. The court also upheld the protective order and sealing of the report.

Holdings

1. The investigation report was privileged and immune from disclosure because it was prepared by Riverbay's general counsel and was primarily and predominantly a legal communication containing legal advice and recommendations to minimize Riverbay's potential liability.
2. Riverbay did not waive attorney-client privilege by disclosing the report during the closed Executive Board meeting.
3. Berk, as Riverbay's former Board president, was not entitled to waive Riverbay's attorney-client privilege.
4. Riverbay did not place the report at issue in the litigation.
5. The trial court properly denied the motion to compel, granted Riverbay's application for a protective order, and sealed the filed copy of the report.

Questions Presented

1. Whether the investigation report prepared by Riverbay's general counsel was protected by attorney-client privilege and immune from disclosure.
2. Whether Riverbay waived attorney-client privilege by disclosing the report at a closed Executive Board meeting.
3. Whether Berk, as Riverbay's former Board president, could waive Riverbay's privilege.
4. Whether Riverbay placed the report at issue by its conduct in the litigation.
5. Whether the trial court properly granted a protective order and sealed the report.

Disposition

affirmed