Opinion
Index No. 151136/2021
01-25-2024
SMARTMATIC USA CORP., SMARTMATIC INTERNATIONAL HOLDING B.V., SGO CORPORATION LIMITED, Plaintiffs, v. FOX CORPORATION, FOX NEWS NETWORK LLC, LOU DOBBS, MARIA BARTIROMO, JEANINE PIRRO, RUDOLPH GIULIANI, SIDNEY POWELL, Defendants.
UNPUBLISHED OPINION
PRESENT: HON. DAVID B. COHEN Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 035) 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1928, 1936 were read on this motion to/for _DISCOVERY.
Defendants Fox New Network, LLC, Bartiromo, Dobbs, and Pirro (collectively, Fox defendants) move pursuant to CPLR 3104 for an order reviewing and vacating a portion of an October 26, 2023 order issued by Judicial Hearing Officer (JHO) Alan Marin (Order). Plaintiffs oppose.
Pursuant to CPLR 3104(d), any party may seek review of an order made by a referee or JHO, and the standard of review of such an order is whether it was clearly erroneous or contrary to law (4 NY Prac, Com. Litig. in New York State Courts 38:20 [5th ed], citing CIT Project Fin. v Credit Suisse First Boston LLC, 7 Mise 3d 1002[A] [Sup Ct, New York County 2005]).
In the Order, JHO Marin granted plaintiffs' motion to compel Fox defendants to produce, in unredacted form, two communications that were identified as privileged on Fox defendants' privilege log, entries 4884 and 4889. The Order was issued after he had examined the documents in camera.
Fox defendants contend that JHO Marin erred in ruling that the communications are not privileged as spousal and attorney-client communications and/or work-product. Both documents are communications sent initially to the employee from an attorney, and then forwarded from the employee to the employee's spouse; one of which is an email attaching a draft version of a legal filing and the other appears to be a chart created by an attorney. Fox defendants contend that the employee shared the communications with the employee's spouse in reliance on the trust and confidence of the marital relationship, thereby implicating the spousal privilege, and that the draft filing is further protected as attorney work product.
Plaintiffs argue that Fox defendants fail to show any error by JHO Marin and that, in any event, the communications are not privileged as the employee sent them to the employee's spouse using Fox News's email system, thereby waiving the spousal privilege as the employee could not, and did not, have an expectation of privacy in the communications.
While it appears that JHO Marin found that the spousal privilege did not protect the entries at issue here, his decision does not specifically address them.
"Designed to protect and strengthen the marital bond, [spousal privilege] encompasses only those statements that are confidential, that are induced by the marital relation and prompted by the affection, confidence[,] and loyalty engendered by such relationship" (Poppe v Poppe, 3 N.Y.2d 312,315 [1957]). "[It] does not protect all the daily and ordinary exchanges between the spouses" (People v Dudley, 24 N.Y.2d 410, 413-414 [1969] [internal quotation marks and citations omitted]; see Parkhurst v Berdell, 110 NY 386, 394 [1888] [holding wife's communications with husband not protected by privilege because "(t)hey were ordinary conversations, relating to matters of business" and there was "no reason to suppose (husband) would have been unwilling to hold (the conversations) in the presence of any person"]), and "[t]he test is whether the intent exists to rely on the confidence and intimacy of the marital relation in making the disclosure to the partner of the marriage" (People v McCormack, 278 AD 191, 195 [1st Dept 1951]).
The spousal privilege extends to attorney-client communications shared between spouses (In re Horowitz, 16 Misc.3d 1106[A] [Sup Ct, Nassau County 2007]; Matter of Will of Pretino, 150 Misc.2d 371, 373 [Surr Ct, Nassau County 1991] [“(w)here the disclosure of information protected by the attorney-client privilege is disclosed in a communication which is itself privileged, there is no waiver. Thus, the disclosure to a spouse with the intention of preserving confidentiality does not amount to a waiver of the attorney-client privilege.”]; see also Shih v Petal Card, Inc., 565 F.Supp.3d 557 [SD NY 2021] [applying New York law to hold that attorney-client privilege is not waived when client discloses attorney-client communication to spouse]; Lorber v Winston, 2002 WL 5904522 [ED NY 2012] [client's disclosure of privileged document protected by spousal privilege]).
Moreover, an attorney's work product is privileged even if disclosed to a third party unless the communication is used in a manner contrary to the work product doctrine or "when disclosure substantially increases the opportunity for potential adversaries to obtain the information" (Shih, 565 F.Supp.3d at 576 [even if spousal privilege did not apply, emails protected by work product privilege]).
After a review of the communications at issue, I find that the two underlying communications constitute privileged documents and need not be disclosed in unredacted form.
Entry 4889 is the email sent from an attorney to the employee at the employee's private email address, and the employee's subsequent forwarding of it to the spouse. The email is an attorney-client communication and thus privileged, and the forwarded email to the spouse is protected by the spousal privilege. As the email was not transmitted to the spouse using Fox News's email systems, that transmission did not negate the applicable privileges (compare Shih, 565 F.Supp.3d at 575 [spousal privilege did not protect emails sent via employer's email system]).
Entry 4884 is a chart created by the attorney and sent to the employee, thus constituting attorney work product and an attorney-client communication, and is therefore privileged. While there is no detail provided, on the communication itself or on Fox defendants' privilege log, as to whether or not entry 4884 was transmitted through Fox News's email system, as the chart constitutes attorney work product, it is irrelevant how it was transmitted to the spouse (id. at 576 [even if spousal privilege did not protect documents sent via company's email system, work product doctrine prevented their disclosure]).
Therefore, JHO Marin's ruling regarding these two documents was clearly erroneous or contrary to law, and must be vacated.
Accordingly, it is hereby
ORDERED, that JHO Marin's order of October 26, 2023 is vacated to the extent of denying plaintiffs' motion to compel Fox defendants to produce unredacted copies of privilege log entries 4884 and 4889.