Opinion
November 10, 1986
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Callahan, J.P., Doerr, Denman and Boomer, JJ.
Order unanimously reversed on the law with costs and motion granted, in accordance with the following memorandum: At issue is whether the attorney-client privilege was properly invoked by defendant Sheriff Meloni and his employees in this defamation action. Special Term properly noted that the privilege "does not extend so far as to seal from disclosure what the general subject of discussion was at the meetings. Clearly, it dealt, among other things, with the plaintiff and the Sheriff in his own affidavit concedes as much (par 3). Accordingly, the plaintiff is entitled to an answer to his question as to whether the subject of the plaintiff came up at the meetings."
The attorney-client privilege extends only to communications and not to facts (Upjohn Co. v United States, 449 U.S. 383, 395-396). The Sheriff, his attorney Ms. Farber, and the other witnesses may well possess knowledge and facts which would not be privileged and which are properly discoverable (see, City of Elmira v Larry Walter, Inc., 89 A.D.2d 645, 646). Hence the direction that the plaintiff may not, without a waiver from the Sheriff, require Farber or the others to disclose the substance of the meeting's conversation is too broad.
The record reveals that other than conclusory statements made in the affidavits of Sheriff Meloni and Ms. Farber, there is no showing of what statements may be privileged. The person asserting the privilege has the burden of sustaining that claim (Matter of Priest v Hennessy, 51 N.Y.2d 62, 69). To make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a "confidential communication" made to the attorney for the purpose of obtaining legal advice or services (Matter of Priest v Hennessy, supra; Matter of Jacqueline F., 47 N.Y.2d 215, 219). The proper procedure would be for the witnesses to raise the privilege put to a specific question and let Special Term determine whether there is merit to the witness' claim of privilege as to that question.