Summary
This Appellate Division, First Department decision addresses an insurer's appeal from a trial court order denying a motion to compel the production of internal documents and communications from defendant NL Industries, Inc. The court affirmed the lower court's ruling, holding that the defendant did not waive its attorney-client or work product privileges by placing the subject matter of those communications at issue in the litigation. The court further determined that the general counsel's affidavits contained primarily factual statements and references to public records, which do not trigger privilege waiver. Consequently, the insurers were not entitled to invade the claimed privileges.
Topics
Practice areas
Questions Presented
- Whether NL Industries' attorney‑client and work‑product privileges were waived such that the insurers could obtain the communications.
- Whether statements in the general counsel's affidavits are privileged.
Holdings
- No waiver of the attorney‑client or work‑product privilege occurred; the insurers are not entitled to the privileged communications.
Key quotations
“Supreme Court properly found that no "at issue" waiver of privilege occurred, as NL Industries did not affirmatively place the subject matter of its own privileged communications at issue in the litigation.”
Factual background
Insurers moved to disaffirm part of a special discovery master's order and to compel NL Industries, Inc. to produce internal documents and communications related to affidavits of its general counsel. The Supreme Court found no waiver of attorney‑client or work‑product privilege because NL Industries did not place the subject matter of its privileged communications at issue.
Procedural history
The Supreme Court, New York County denied the insurers' motions to disaffirm a portion of a discovery master's order and to compel NL Industries to produce privileged documents. The Appellate Division, First Department affirmed that order.