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finding no waiver of privilege where information shared among joint clients
Summary of this case from Eprova Ag v. ProThera, Inc.Opinion
No. 00 Civ. 9214 (RWS).
March 2, 2005
MEMORANDUM OPINION and ORDER
By a letter application dated February 2, 2005 and treated as a motion, plaintiff The Jordan (Bermuda) Investment Company, Ltd. ("JBIC") has sought reconsideration pursuant to Local Civil Rule 6.3 of this district of the memorandum opinion and order of this Court dated January 26, 2005 (the "Order"), which granted in part and denied in part JBIC's motion to compel Fred Santo ("Santo") of Katten Muchin Zavis Rosenman (the "Firm") and the Firm to provide certain discovery. Specifically, JBIC seeks reconsideration of the Order insofar as it was held that certain communications among Santo and the Firm, on the one hand, and Hunter Green Investments Ltd. ("Hunter Green"), International Fund Services, Inc. ("IFS"), International Fund Services Ireland Limited ("IFSI"), Investment Management Services, Inc. ("IMS"), and Thomas F. Grizzetti ("Grizzetti") are covered by attorney-client privilege. Following the submission of additional letter-briefs, JBIC's motion was deemed fully submitted on February 9, 2005 and is, for the reasons set forth below, denied.
Contrary to the doubt expressed in the motion for reconsideration, JBIC's counsel's letter of January 18, 2005 and the arguments raised therein were considered by the Court in reaching the decision set forth in the Order. The doctrine invoked by JBIC in both that letter and the motion for reconsideration, alternately known under the names of "common interest" or "joint defense," describes a limited exception to the rule that the attorney-client privilege is waived when a protected communication is disclosed to a third party or that party's counsel. See, e.g., Bank of America, N.A., v. Terra Nova Ins. Co. Ltd., 211 F. Supp. 2d 493 (S.D.N.Y. 2002); Aetna Cas. Sur. Co. v. Certain Underwriters at Lloyd's London, 176 Misc.2d 605, 676 N.Y.S.2d 727 (N.Y.Sup.Ct. N.Y. Cty. 1998),aff'd, 263 A.D.2d 367, 692 N.Y.S.2d 384 (N.Y.App.Div. 1st Dep't 1999).
That doctrine, however designated, is not relevant where, as here, the communications at issue involve joint clients of the same counsel and are subject to the attorney-client privilege itself. See Wallace v. Wallace, 216 N.Y. 28, 109 N.E. 872 (1915); Hurlburt v. Hurlburt, 128 N.Y. 420, 28 N.E. 651 (1891);Root v. Wright, 84 N.Y. 72 (1881); La Barge v. La Barge, 284 A.D. 996, 135 N.Y.S.2d 317 (N.Y.App.Div. 3d Dep't 1954); see also Perez v. Bangkok Bank Ltd., No. 87 Civ. 1753, 1988 WL 142470, at *2 (S.D.N.Y. Dec. 27, 1988) ("While joint clients for whom the same attorney is acting in a particular transaction may not assert attorney-client privilege in disputes between themselves, attorney-client communications are protected from disclosure vis-a-vis third persons."); see generally People v. Pennachio, 167 Misc.2d 114, 637 N.Y.S.2d 633 (N.Y.Sup.Ct. N.Y. Cty. 1995) (distinguishing between the attorney-client privilege applicable to joint clients and the common interest or joint defense privilege).
JBIC's motion for reconsideration is, accordingly, denied.
It is so ordered.