ARC NYWWPJV001, LLC v WWP JV LLC 2024 NY Slip Op 34298(U) November 29, 2024 Supreme Court, New York County Docket Number: Index No. 654977/2022 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
ARC NYWWPJV001, LLC,A DELAWARE LIMITED INDEX NO. 654977/2022 LIABILITY COMPANY,
Plaintiff, MOTION DATE 06/18/2024
- V - MOTION SEQ. NO. 009 WWP JV LLC,A DELAWARE LIMITED LIABILITY COMPANY, DECISION+ ORDER ON MOTION Defendant.
----------------------------------------------------------------------------------- X
WWP JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Third-Party Index No. Plaintiff,
-against-
NEW YORK REIT LIQUIDATING LLC
Defendant. -------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 009) 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 169, 170, 171, 172,173,174,175,225,226,227 were read on this motion to COMPEL DISCOVERY
Plaintiff ARC NYWWPJV00I, LLC ("Arc") and Counterclaim Defendant New York
REIT Liquidating LLC ("NYRT") seek an order compelling Defendant/Counterclaim Plaintiff
WWP JV LLC ("WWP") to "produce" (again) purportedly privileged documents that WWP
claims were inadvertently produced to Plaintiffs during discovery. For the following reasons, the
motion is granted in part.
The first document (the "Fields Analysis") was prepared by Steven Fields, in-house
counsel at RXR Realty LLC ("RXR") (NYSCEF 170 ,-i,i 2-4). The document was forwarded by
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 1 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
[* 1] 1 of 5 INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
an RXR representative to an SLG representative (NYSCEF 141). The second exhibit (the
"Isaacson Email")-an email from Drew Isaacson to David Schonbraun (copying Daniel
Wedman), all of whom were employed in business roles at SLG-contained a bullet point
regarding the subject of this litigation, and suggested that in-house counsel "should confirm" the
position taken in the bullet point (NYSCEF 142, at 2).
Both exhibits were produced in early 2024. WWP sought to claw the exhibits back in
March 2024, prior to the depositions of pertinent witnesses (NYSCEF 146; NYSCEF 147, at
240-43; NYSCEF 148; NYSCEF 150, at 206:4-10). A redacted version of the Isaacson email
was subsequently produced. After good-faith conferrals and conferencing with the Court's law
clerk, the parties were unable to resolve the dispute, and Arc filed this motion.
Discussion
CPLR 3 l0l(a) requires "full disclosure of all matter material and necessary in the
prosecution or defense of an action." However, a party may shield information from disclosure
if it is protected by attorney-client privilege. The privilege "shields from disclosure any
confidential communications between an attorney or his or her client made for the purpose of
obtaining or facilitating legal advice in the course of a professional relationship" (Ambac Assur.
Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623 [2016]). "The attorney-client
privilege[] ... fosters open dialogue between lawyer and client that is deemed essential to
effective representation" (Spectrum Sys. Int'! Corp. v Chemical Bank, 78 NY2d 371,377
[1991]). "[T]he burden of establishing any right to protection is on the party asserting" the
privilege, and it "must be narrowly construed" and applied "consistent with the purposes
underlying the immunity" (id.). "[W]hether a particular document is or is not protected is
necessarily a fact-specific determination" (id. at 378).
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 2 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
[* 2] 2 of 5 INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
A. The Fields Analysis
"The attorney-client privilege applies to communications between a corporation's
employees and the corporation's in-house counsel for the purpose of providing legal advice to
the corporation" (West 87 LP v Paul Hastings LLP, 79 Misc3d 1237[A], at 3 [Sup Ct NY County
2023] [citing Stock v Schnader Harrison Segal & Lewis LLP, 142 AD3d 210,216 [1 st Dep't
2016]). "'Generally, communications made in the presence of third parties, whose presence is
known to the [client], are not privileged from disclosure' because they are not deemed
confidential" (Ambac, 27 NY3d at 624).
Here, WWP has not shown that Mr. Fields was representing WWP when drafting the
document. The document identifies Mr. Fields as RXR 's in-house counsel, and references SLG' s
counsel's points responding to Mr. Fields's analysis (NYSCEF 141). There is no evidence that
that Mr. Fields was separately retained by WWP (or, for that matter, SLG). Moreover, even if
Mr. Fields had been representing WWP, WWP has failed to demonstrate why sharing
confidential its (or RXR' s) counsel's advice with SLG would not constitute a waiver of the
privilege. 1
The Court has considered WWP' s other arguments and finds them unavailing. Thus, the
Fields Analysis must be produced.
B. The Isaacson Email
The attorney-client privilege "protects from disclosure communications among corporate
employees that reflect advice rendered by counsel to the corporation" (Delta Fin. Corp. v
1 The common interest exception to the waiver of attorney-client privilege is inapplicable because there is no evidence that this document was created in reasonable anticipation of litigation (Ambac, 27 NY3d at 628-32).
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 3 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
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Morrison, 15 Misc3d 308, 317 [Sup Ct Nassau County 2007] [citing Bank Brussels Lambert v
Credit Lyonnais, 160 FRD 437 [SD NY 1995]]).
This Isaacson Email contains a privileged communication and was properly redacted.
The fact that the redacted communication is between SLG business personnel does not preclude
a finding of privilege when, in context, it constitutes a request for legal advice (United States v
DeFonte (441 F3d 92, 95-96 [2d Cir 2006]). Here, the redacted paragraph sets forth a proposed
legal conclusion for review by counsel (see NYSCEF 142, at 2). The communication was
forwarded to counsel the same day (NYSCEF 173). The Court finds that the unredacted version
of the Isaacson Email is appropriately withheld as privileged.
C. Arc's Other Arguments
Arc's other arguments to obtain disclosure are unpersuasive. The Court declines to apply
a subject matter waiver or order additional production beyond the narrow scope of this motion.
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ARC NYWWPJV001, LLC v WWP JV LLC 2024 NY Slip Op 34298(U) November 29, 2024 Supreme Court, New York County Docket Number: Index No. 654977/2022 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
ARC NYWWPJV001, LLC,A DELAWARE LIMITED INDEX NO. 654977/2022 LIABILITY COMPANY,
Plaintiff, MOTION DATE 06/18/2024
- V - MOTION SEQ. NO. 009 WWP JV LLC,A DELAWARE LIMITED LIABILITY COMPANY, DECISION+ ORDER ON MOTION Defendant.
----------------------------------------------------------------------------------- X
WWP JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Third-Party Index No. Plaintiff,
-against-
NEW YORK REIT LIQUIDATING LLC
Defendant. -------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 009) 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 169, 170, 171, 172,173,174,175,225,226,227 were read on this motion to COMPEL DISCOVERY
Plaintiff ARC NYWWPJV00I, LLC ("Arc") and Counterclaim Defendant New York
REIT Liquidating LLC ("NYRT") seek an order compelling Defendant/Counterclaim Plaintiff
WWP JV LLC ("WWP") to "produce" (again) purportedly privileged documents that WWP
claims were inadvertently produced to Plaintiffs during discovery. For the following reasons, the
motion is granted in part.
The first document (the "Fields Analysis") was prepared by Steven Fields, in-house
counsel at RXR Realty LLC ("RXR") (NYSCEF 170 ,-i,i 2-4). The document was forwarded by
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 1 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
[* 1] 1 of 5 INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
an RXR representative to an SLG representative (NYSCEF 141). The second exhibit (the
"Isaacson Email")-an email from Drew Isaacson to David Schonbraun (copying Daniel
Wedman), all of whom were employed in business roles at SLG-contained a bullet point
regarding the subject of this litigation, and suggested that in-house counsel "should confirm" the
position taken in the bullet point (NYSCEF 142, at 2).
Both exhibits were produced in early 2024. WWP sought to claw the exhibits back in
March 2024, prior to the depositions of pertinent witnesses (NYSCEF 146; NYSCEF 147, at
240-43; NYSCEF 148; NYSCEF 150, at 206:4-10). A redacted version of the Isaacson email
was subsequently produced. After good-faith conferrals and conferencing with the Court's law
clerk, the parties were unable to resolve the dispute, and Arc filed this motion.
Discussion
CPLR 3 l0l(a) requires "full disclosure of all matter material and necessary in the
prosecution or defense of an action." However, a party may shield information from disclosure
if it is protected by attorney-client privilege. The privilege "shields from disclosure any
confidential communications between an attorney or his or her client made for the purpose of
obtaining or facilitating legal advice in the course of a professional relationship" (Ambac Assur.
Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623 [2016]). "The attorney-client
privilege[] ... fosters open dialogue between lawyer and client that is deemed essential to
effective representation" (Spectrum Sys. Int'! Corp. v Chemical Bank, 78 NY2d 371,377
[1991]). "[T]he burden of establishing any right to protection is on the party asserting" the
privilege, and it "must be narrowly construed" and applied "consistent with the purposes
underlying the immunity" (id.). "[W]hether a particular document is or is not protected is
necessarily a fact-specific determination" (id. at 378).
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 2 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
[* 2] 2 of 5 INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
A. The Fields Analysis
"The attorney-client privilege applies to communications between a corporation's
employees and the corporation's in-house counsel for the purpose of providing legal advice to
the corporation" (West 87 LP v Paul Hastings LLP, 79 Misc3d 1237[A], at 3 [Sup Ct NY County
2023] [citing Stock v Schnader Harrison Segal & Lewis LLP, 142 AD3d 210,216 [1 st Dep't
2016]). "'Generally, communications made in the presence of third parties, whose presence is
known to the [client], are not privileged from disclosure' because they are not deemed
confidential" (Ambac, 27 NY3d at 624).
Here, WWP has not shown that Mr. Fields was representing WWP when drafting the
document. The document identifies Mr. Fields as RXR 's in-house counsel, and references SLG' s
counsel's points responding to Mr. Fields's analysis (NYSCEF 141). There is no evidence that
that Mr. Fields was separately retained by WWP (or, for that matter, SLG). Moreover, even if
Mr. Fields had been representing WWP, WWP has failed to demonstrate why sharing
confidential its (or RXR' s) counsel's advice with SLG would not constitute a waiver of the
privilege. 1
The Court has considered WWP' s other arguments and finds them unavailing. Thus, the
Fields Analysis must be produced.
B. The Isaacson Email
The attorney-client privilege "protects from disclosure communications among corporate
employees that reflect advice rendered by counsel to the corporation" (Delta Fin. Corp. v
1 The common interest exception to the waiver of attorney-client privilege is inapplicable because there is no evidence that this document was created in reasonable anticipation of litigation (Ambac, 27 NY3d at 628-32).
654977/2022 ARC NYWWPJV001, LLC, A DELAWARE LIMITED LIABILITY COMPANY, vs. WWP Page 3 of 5 JV LLC, A DELAWARE LIMITED LIABILITY COMPANY, Motion No. 009
[* 3] 3 of 5 INDEX NO. 654977/2022 NYSCEF DOC. NO. 509 RECEIVED NYSCEF: 11/29/2024
Morrison, 15 Misc3d 308, 317 [Sup Ct Nassau County 2007] [citing Bank Brussels Lambert v
Credit Lyonnais, 160 FRD 437 [SD NY 1995]]).
This Isaacson Email contains a privileged communication and was properly redacted.
The fact that the redacted communication is between SLG business personnel does not preclude
a finding of privilege when, in context, it constitutes a request for legal advice (United States v
DeFonte (441 F3d 92, 95-96 [2d Cir 2006]). Here, the redacted paragraph sets forth a proposed
legal conclusion for review by counsel (see NYSCEF 142, at 2). The communication was
forwarded to counsel the same day (NYSCEF 173). The Court finds that the unredacted version
of the Isaacson Email is appropriately withheld as privileged.
C. Arc's Other Arguments
Arc's other arguments to obtain disclosure are unpersuasive. The Court declines to apply
a subject matter waiver or order additional production beyond the narrow scope of this motion.
The Court cannot evaluate documents that have not been challenged (and are not even known to
exist). That said, WWP has a continuing obligation under the CPLR to re-evaluate (and produce,
as appropriate) documents they may have withheld as privileged, in light of the Court's decision.
D. Fees
Given the mixed result, the Court declines to award attorneys' fees pursuant to the
stipulation in the preliminary conference order permitting an award of fees to the prevailing party
in a discovery motion. The Court likewise declines to award discovery sanctions to WWP, as
they have not shown that Arc engaged in discovery abuse.
Accordingly, it is
ORDERED that Arc's motion to compel is granted in part, such that WWP shall
produce the Fields Analysis, and denied with respect to the unredacted Isaacson e-mail.
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This constitutes the Decision and Order of the Court.
11/29/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED ~ NON-FINAL DISPOSITION □ DENIED □ GRANTED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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