Tuesday, December 13, 2022

It's My (Third) Party

The New York Appellate Division for the First Judicial Department affirmed denial of access to notes taken by a third party sought in a divorce proceeding

Following its in camera review, Supreme Court providently exercised its broad discretion in finding that notes of a meeting between defendant Mark Harounian and his divorce counsel were privileged even though they were created in the known presence of a third party — namely, nonparty Lennie Estipular, Harounian's long-term employee and personal assistant (see Horizon Asset Mgt., Inc. v Duffy, 82 AD3d 442, 443 [1st Dept 2011]). An agency agreement, prepared by Harounian's divorce counsel, designated Estipular as Harounian's agent in connection with the divorce proceeding, specifically stating that Estipular's activities were undertaken at counsel's direction and were intended to maintain and preserve privilege.

Contrary to plaintiff's assertion that Estipular could not have been Harounian's agent at the meeting between him and his counsel because she was not necessary to the transmission of legal advice, Estipular was, in fact, facilitating attorney-client communications by recording notes of the meeting, because her doing so allowed Harounian to listen rather than write. Therefore, the agency exception applies, and the privilege was not waived by Estipular's presence (see Ambac Assurance Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 [2016]; Robert V. Straus Prods. v Pollard, 289 AD2d 130, 131 [1st Dept 2001]).

(Mike Frisch)


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