Opinion
Index No. 652227/2019
04-05-2024
ALL IN 1 SPOT WITH THERATALK, SLP, PT, OT, PSYCHOLOGY, PLLC, IRENE CHRISTOFOROU- GIOULES, MARIA PANAYIOTOU-MAMOUNAS Plaintiffs, v. NOOR STAFFING GROUP, LLC, HABIB NOOR, JACOB ELETTO, Defendants.
Unpublished Opinion
MOTION DATE 12/15/2023
INTERIM DECISION + ORDER ON MOTION
JOEL M. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 005) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161 were read on this motion to COMPEL DISCOVERY OR IN CAMERA REVIEW
Plaintiffs All in 1 SPOT with TheraTalk, SLP, PT, OT, Psychology, PLLC's, Irene Christoforou-Gioules' ("Gioules"), and Maria Panayiotou-Mamounas' ("Mamounas") (collectively the "All in 1 Parties") renewed motion to compel or, in the alternative, for an in camera review, of documents withheld on the basis of the attorney-client privilege by Defendants Noor Staffing Group, LLC ("Noor Staffing"), Habib Noor and Jacob Eletto (together the "NSG Parties") is granted in part to the extent that the parties shall collectively submit a representative sample of the documents for an in camera review.
A. Background
Gioules and Mamounas are the principals of All in 1 SPOT. In 2016, Gioules and Mamounas entered into an employment agreement with Noor Staffing that purportedly permitted them to simultaneously operate All in 1 SPOT. In 2017, All in 1 SPOT and Noor Staffing were both awarded contracts by the New York City Department of Education ("DOE").
The parties disagree about their respective rights to service the DOE contracts and have brought claims against each other. In 2018, Noor Staffing commenced an action against Gioules and Mamounas for breach of the employment agreement under Index No. 651459/2018 (the "2018 Action"). The All in 1 Parties subsequently filed this action against the NSG Parties, asserting breach of contract and employment related claims.
The All in 1 Parties move in both actions to compel production of documents, specifically emails, involving two attorneys, John Scully ("Scully") and Robert Shaw ("Shaw"). Mr. Scully served as Noor Staffing's human resources director at the time the employment agreement was entered and registered as Noor Staffing's in-house counsel in October 2017. Mr. Shaw served as Noor Staffing's outside counsel and was involved in drafting the employment agreement as well as in the business negotiations at issue in these cases.
The All in 1 Parties' first motion to compel was denied without prejudice for failure to comply with the Commercial Division Rules (All in 1 Spot with Theratalk v Noor Staffing Group, LLC, 2022 N.Y. Slip Op. 33862[U], [N.Y. Sup Ct, New York County 2022] [the "Prior Order"]). In an effort to avoid further motion practice, the Prior Order included guidance as to what aspects of the motion were likely to be granted, if properly filed (id).
Specifically, the Court indicated that the NSG Parties "should produce all communications predating October 2017 that were withheld by the NSG parties based on Scully's participation," "provide a more detailed privilege log," and "produce documents responsive to Requests 12 and 13" (id.). The Prior Order provides that "[o]nce NSG has produced a more detailed privilege log, and produced redacted documents (if any), the parties should meet and confer in good faith. If disputes still remain, Plaintiffs may move to compel and Defendants should provide the disputed documents to the Court for in-camera review."
Following the issuance of the Prior Order, the parties conferred and NSG Parties supplemented their document production and served a Third Revised Privilege Log. The Privilege Log references 463 documents that appear to include more than 4,000 pages.
The parties were unable to resolve their differences and submitted a joint Rule 14 letter (NYSCEF 112). Despite numerous conferences with the Court's Principal Law Clerk, the parties could not agree on the scope of an in camera review. While the All in 1 Parties represented that a limited in camera review would be sufficient to address the privilege issues, the NSG Parties "continue to take the position that in camera review is unnecessary and inappropriate here" (NYSCEF 146). NSG Parties provided, and offered to continue to provide, clarifications as to specific documents (NYSCEF 157).
B. Discussion
While New York courts generally favor open and liberal discovery, "CPLR 4503(a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment, and CPLR 3101(b) vests privileged matter with absolute immunity" (Spectrum Sys. Int'l Corp, v Chern, Bank, 78 N.Y.2d 371, 377 [1991]). The burden of establishing that the attorney-client privilege applies is on the party asserting it (id.).
"The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship" (Ambac Assur. Corp, v Countrywide Home Loans. Inc., 27 N.Y.3d 616, 623 [2016]). In order for the privilege to apply, "the communication from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship'" (Spectrum Sys. Inti. Corp, at 377-378 quoting Rossi v Blue Cross & Blue Shield of Greater NY, 73 N.Y.2d 588, 593 [1989]).
"Communications do not automatically obtain privilege status merely because they were created or communicated by an attorney. . .Only if the communications are transmitted in the course of professional employment, that convey a lawyer's assessment of the client's legal position, does the privilege apply" (Brawer v Lepor, 75 Mise 3d 1229(A) [Sup Ct New York County 2022] citing id.). The privilege cannot be used to shield "underlying facts" (Spectrum Sys. Inti. Corp, at 377 citing Upjohn Co. v United States, 449 U.S. 383, 395-396 [1981]).
"[W]hether a particular document is or is not a protected is necessarily a fact-specific determination ... often requiring in camera review" (Spectrum Sys. Inti. Corp., 78 N.Y.2d at 378). The assessment can be particularly challenging when the relevant attorneys have "mixed business-legal responsibility." (Rossi, 73 N.Y.2d at 592-593).
The Court cannot discern from the papers alone whether the withheld documents are privileged, as both Mr. Scully and Mr. Shaw appear to have provided both business and legal advice. In those circumstances, the Court has the discretion to direct an in camera review to assess claims of privilege (Arkin Kaplan Rice LLP v Kaplan, 107 A.D.3d 502, 502 [1st Dept 2013]). Given the volume of documents involved and the common issues raised, the Court directs that the All in One Parties and NSG Parties each select up to 25 documents for a total of up to 50 documents for in camera review.
Accordingly, it is
ORDERED that the All in 1 Parties' motion is GRANTED IN PART and the Court will conduct an in camera review of a representative sample of the withheld documents; it is further
ORDERED that within fourteen (14) days of this order that the parties file a joint letter identifying the documents selected for an in camera review and that NSG Parties submit the sample to the Court via USB flash drive delivered to the Part 3 Clerk (Courtroom 208) or via email (SFC-Part3@nvcourts.gov).
This constitutes the decision and order of the Court.