Prospect Capital Corp. v. Morgan Lewis & Bockius LLP

Summary

The Appellate Division, First Department affirmed an order addressing Prospect Capital's motion for a protective order concerning categories of documents on its privilege log. The court held that Prospect placed certain attorney-client and work-product communications at issue by alleging reliance on defendants' advice regarding a turnover provision and litigation strategy, while other communications concerning related contracts were not relevant and remained protected. The decision concerns privilege waiver under the at-issue doctrine in a legal malpractice action.

Holdings

1. Prospect waived attorney-client and work-product privilege under the at-issue doctrine as to communications from in-house counsel concerning the turnover provision, its interpretation, and decisions whether or when to litigate against Silicon Valley Bank, because Prospect alleged reliance on defendants' advice in formulating its negotiation and litigation strategy. Disclosure of category 19 was properly limited to advice related to Prospect's choice to bring the turnover claim.
2. The communications in categories 6, 9, 10, and 12 were not relevant to whether Prospect relied on defendants' advice regarding the turnover provision, so Supreme Court properly granted Prospect's protective order as to those categories.

Questions Presented

1. Whether Prospect placed communications concerning the turnover provision, its interpretation, and decisions regarding litigation against Silicon Valley Bank at issue, thereby waiving attorney-client and work-product privilege.
2. Whether communications concerning other contracts and amendments in the same transaction were relevant to Prospect's reliance on defendants' advice regarding the turnover provision and therefore subject to disclosure.

Disposition

affirmed