New York City apartment living can spawn interesting legal disputes when neighbors fail to resolve their grievances amicably and resort to the courts. Sometimes these disputes bring fanfare as well as opportunities to observe traditional rules of law in action. A recent decision in the ongoing dispute between actor Justin Theroux and his neighbors (Theroux v. Resnicow) is just that.
As though commercial transactions were not already fraught with enough potential pitfalls, a recent decision from the Southern District of New York highlighted yet another risk that could carry significant consequences to commercial litigations – the dreaded waiver of attorney-client privilege.
On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does not, standing alone, constitute a waiver of attorney work product protections” even if the user lacked reasonable assurance of confidentiality necessary to bring the documents within the attorney-client or marital privileges. In Miller v. Zara USA, Inc., plaintiff, the former general counsel of Zara USA, Inc., sought a protective order precluding the company from accessing personal documents on a company-owned laptop, claiming the documents to be protected by the attorney-client and work-product privileges. The Supreme Court issued the protective order and Zara appealed.
While attorneys provide legal advice to their clients, they are sometimes the recipients of such advice from their own counsel, including in-house firm counsel. Agreeing with recent decisions by the highest courts of Georgia and Massachusetts, a panel of the First Department Appellate Division this June handed down a decision declaring such advice protected by the attorney-client privilege. See Stock v. Schnader Harrison Segal & Lewis LLP.
Although e-discovery has been part of complex commercial litigation for over a decade, there have been only a few federal appellate court rulings about e-discovery topics. On April 7, 2016, in In re Am. Nurses Ass’n, the Fourth Circuit became the latest appellate court to issue such a ruling. The Court upheld a district court’s ruling that shifted a third-party’s subpoena-related e-discovery costs to the subpoenaing party. The Court also upheld the lower court’s determination that attorney’s fees incurred by the third-party in responding to the subpoena should also be shifted to the subpoenaing party. The opinion is instructive to litigants and counsel on both sides of a subpoena.
Last Thursday, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not protect their communications.
In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., New York’s highest court held, in a 4-2 decision, that a party waives its attorney-client privilege if it shares privileged information with another party unless (i) those two parties share a common legal interest, (ii) the communication between the parties was made in furtherance of that legal interest, and (iii) the communication relates to pending or anticipated litigation.
On May 16, 2016, the Supreme Court decided Spokeo, Inc. v. Robins, ruling that a plaintiff must sufficiently allege an injury that is both concrete and particularized in order to have Article III standing, and further that a “bare procedural violation” of a plaintiff’s statutory right may not be sufficiently “concrete” under this analysis. This ruling has the potential to affect class actions generally, but may prove especially influential in privacy and data security class actions.
In Jinnaras v. Alfant, decided on May 5, 2016, the New York Court of Appeals rejected a proposed settlement of a shareholder class action, where the proposed settlement would have deprived out-of-state class members of a “cognizable property interest” by failing to provide a mechanism for class members residing…