Bras v. Atlas Construction Corp.

153 A.D.2d 914, 545 N.Y.S.2d 723, 1989 N.Y. App. Div. LEXIS 11987

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 1989
• Status: Published

Opinions

In an action to recover damages for personal injuries, the defendant and third-party plaintiff Atlas Construction Corp. appeals from an order of the Supreme Court, Queens County (Hentel, J.), entered May 2, 1988, which denied its motion for a protective order with respect to a notice to admit served by the third-party defendant Rogers & Sons Building Corp.

Ordered that the order is affirmed, with costs.

We find unpersuasive the appellant’s contentions that the documents in issue, namely, correspondence between an officer of the appellant and its insurer which was turned over to other parties in the action during pretrial discovery, should be subject to a protective order pursuant to the attorney-client privilege or the attorney work product privilege.

The appellant has failed to sustain its burden of proving that the correspondence constituted "a confidential communication made between the attorney or his employee and the client in the course of professional employment” (CPLR 4503 [a] [emphasis supplied]; see generally, Matter of Grand Jury Subpoena [Bekins Record Stor. Co.], 62 NY2d 324, 329). Rather, the record demonstrates that the correspondence was initiated by the insurer, inter alia, to ascertain the scope of coverage and to investigate the claim. The appellant’s reply to the insurer’s inquiries .was directed to the insurer alone, and neither counsel nor any agent or employee of counsel participated in the correspondence. Accordingly, consonant with the well-settled principle that the attorney-client privilege is to be narrowly construed (see, Matter of Priest v Hennessy, 51 NY2d 62), we conclude that the privilege is inapplicable to the matter at bar.

Similarly, the documents involved herein do not fall under the attorney work product privilege (see, CPLR 3101 [c]), inasmuch as they were not prepared by an attorney and contain no legal reasoning, strategy or analysis (see, Bloss v Ford Motor Co., 126 AD2d 804; Graf v Aldrich, 94 AD2d 823).

To the extent that the correspondence might be viewed as material prepared for litigation (see, CPLR 3101 [d] [2]), we conclude that any qualified privilege applicable to such material has been waived in this case by virtue of the appellant’s failure to exercise due diligence. The record demonstrates that the documents were served by the appellant upon other parties as business records without any reservation of privilege (see, Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834; Liberty Mut. Ins. Co. v Engels, 21 AD2d 808). Moreover, while the appellant’s files were screened by counsel prior to the release of the documents, counsel described this internal screening procedure as involving the removal of "personal communications between [counsel] and [the appellant]”. Therefore, according to its very nature, this procedure did not preclude the disclosure of documents which fall outside the foregoing definition, even if those documents might otherwise qualify as material prepared for litigation. Hence, while the appellant maintains in retrospect that it never intended to release the communications at issue, its utilization of a screening procedure which was not reasonably designed or executed so as to prevent the inadvertent disclosure supports a finding of waiver (cf., Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392).

Finally, while our dissenting colleague would limit the application of the waiver doctrine to only those situations wherein there is clear and unequivocal proof of an intentional and voluntary waiver of privilege, we conclude that such a rule would effectively abolish the waiver doctrine, inasmuch as affirmative proof of a party’s intentional and voluntary disclosure of otherwise privileged material rarely, if ever, will be forthcoming in cases of this nature. Furthermore, the approach advocated by the dissent poses the risk of undermining the obligation of counsel to exercise due diligence and to employ reasonable and effective screeiiing procedures for the selection of material subject to disclosure. Accordingly, the Supreme Court did not err in denying the appellant’s motion for a protective order. Mangano, J. P., Sullivan and Balletta, JJ., concur.