New York Supreme Court

Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman Resnicow, a law firm partner, sent to his personal lawyer about the parties’ quarrel (related to the New York City co-op where they both reside) using his law firm email account. 

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.

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. 

On March 27, 2017, the Commercial Division of the New York Supreme Courts updated its rule on trial length, giving judges the express authorization to impose time limits, at their discretion, on different phases of trial. The goal of this amendment, first proposed by the Commercial Division Advisory Council in October 2016, is simple: to promote shorter, more efficient trials.

The Commercial Division of the Supreme Court of the State of New York recently adopted a new form of confidentiality order that eliminates the option to e-file documents redacted for confidentiality without a motion to seal. The new confidentiality form, which became effective on July 1, 2016, requires the “Producing Party” who originally designated the documents as confidential to file a motion to seal promptly after any party files redacted copies of the documents. This puts an end to the option of avoiding filing a motion to seal – an alternative that many attorneys had found convenient when confidential information was submitted to the court on a motion or at trial. The effect of the new rule will likely be to expose more confidential information used in litigation to public scrutiny, or to drive up the cost of avoiding such public exposure, or both.

The New York Supreme Court’s Commercial Division Advisory Council has recommended a rule that it believes would substantially expedite non-jury trials and facilitate cross examination with no adverse effects. According to the Council “such a rule would highlight the availability of a practice … that has been found by some judges and attorneys to streamline trials and facilitate crisper cross-examination of witnesses.” The proposed rule would allow courts to require direct testimony in affidavit form of a party’s own witness in a non-jury trial or evidentiary hearing. The proposed rule reads as follows:

In a 3-2 split decision, a New York appellate court determined that a forum selection clause providing for litigation in New York courts had not been explicitly terminated and thus trumped agreements to submit to arbitration in London provided in later contracts that cancelled the previous one. Thus, the appellate panel for the First Department in New York reversed a lower court decision and directed the parties in Garthon Business, Inc., et al. v. Stein, et al., to proceed with their claims in court as opposed to arbitration in London.

In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as waiver of the privilege or the crime-fraud exception. A surprising number of both in-house and outside counsel, however, are unfamiliar with the longstanding “fiduciary exception” to the attorney-client privilege. Forty-five years ago, in Garner v. Wolfinbarger, the Fifth Circuit allowed the attorney-client privilege of a corporation to be pierced by the corporation’s shareholders upon a showing of “good cause.” While some courts have rejected this approach, a New York appellate court recently joined other courts, including the Delaware Supreme Court (see Wal-mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund) in adopting it.