Monday, April 12, 2010

Consultant Documents Are Privileged

The New York Appellate Division for the First Judicial Department held that a trial court had properly found that documents prepared by a consultant who had been working with counsel since the inception of litigation were protected by privilege:

Defendants responded to plaintiffs' discovery demands by providing a supplemental privilege log identifying each of the documents withheld on the grounds they were privileged as work performed by its counsel's consultant from the inception of and during the course of a prior action in Arizona arising out of the same facts. The motion court conducted an in camera review of the withheld documents and concluded that they were protected by the attorney-client privilege.

There is no basis to disturb the motion court's ruling that the documents are subject to the attorney-client privilege. The privilege extends to communications of "one serving as an agent of either attorney or client", and here, the documents were generated by defense counsel's consultant retained to assist in handling forensic accounting in relation to the Arizona matter. Furthermore, the documents are subject to the attorney work product privilege. Such privilege extends to experts retained as consultants to assist in analyzing or preparing the case, "as adjunct to the lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure" (citations omitted)

We have considered plaintiffs' remaining contentions, including that defendants waived the ability to assert that the documents were privileged, and find them unavailing.

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