Opinion
INDEX NO. 650379/2015
03-05-2019
PAUL HETH, Plaintiff, v. SATTERLEE STEPHENS BURKE & BURKE LLP, EDWIN MARKHAM, CHASE MELLEN III Defendant.
NYSCEF DOC. NO. 133 PRESENT: HON. ANDREW BORROK Justice MOTION DATE 11/19/2018 MOTION SEQ. NO. 003
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130 were read on this motion to/for DISCOVERY. This discovery motion is decided as indicated on the record and for the reasons set forth therein (R. Portas, Ct. Reporter, 3/6/9). As more fully set forth on the record, the "at-issue" waiver of the attorney-client privilege arises where a party places the subject matter of privileged communications at issue, thereby making invasion of the privilege necessary to assess the validity of a claim or defense, and where the opposing party would be deprived of critical information absent a waiver of privilege (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [1st Dept 2007]). In the context of a legal malpractice action involving concurrent representation by the defendant and non-party counsel in the same underlying litigation or transaction, New York courts have consistently found that the privilege is waived with respect to communications with the non-party counsel concerning the litigation or transaction (Goetz v Volpe, 11 Misc3d 632, 635 [Sup Ct, NY County 2006]). In such cases, communications with non-party counsel in connection with the underlying action lose their privilege to the extent that they are relevant in establishing whether the plaintiff relied on the advice of the non-party counsel and whether the plaintiff was harmed as a result (IMO Indus., Inc. v Anderson Kill & Olick, P.C., 192 Misc2d 605, 609, 611 [Sup Ct, New York County 2002]). Here, the subject matter (emphasis added) of Paul Heth's communications with his attorney Chase Mellen in connection with the March and December agreements and the waiver of the conflict of interest have been placed at issue in this legal malpractice action. Although at oral argument Mr. Heth argued that his malpractice claim is based on the December agreement only, this misses the point. Initially, the court notes that Mr. Heth alleges that the waiver of the conflict of interest was insufficient in that certain disclosures were not given and that as a result he was injured. To the extent the conflict issue was discussed with Mr. Mellen (his other attorney), defendants Satterlee Stephens Burke & Burke LLP (SSBB) and Edwin Markham would be prejudiced by not having these communications as it relates to causation. In addition, the evolution of the business relationship of Messrs. Heth and Van Riet which was initially codified in the March agreement and then subsequently modified in the December agreement has been placed in issue in this case. To the extent that any communications between Messrs. Heth and Mellen relate to the issues that form the basis of the allegations of malpractice against defendants SSBB and Mr. Markham, withholding any such communications would deprive SSBB and Mr. Markham of critical information and would severely prejudice their ability to defend against the allegations in this action. Specifically, the disclosure of the communications between Messrs. Heth and Mellen is essential to SSBB and Mr. Markham's defense that any alleged reliance by Mr. Heth on legal advice provided by SSBB and Mr. Markham did not proximately cause Mr. Heth's alleged damages (i.e., the theory being that Mr. Mellen provided deficient legal advice rather than SSBB and Mr. Markham [or potentially, also provided deficient advice]). This disclosure is also critical to SSBB's and Mr. Markham's defense that it was Mr. Mellen, not SSBB and Mr. Markham, who represented Mr. Heth with respect to the March and December agreements, that Mr. Heth was aware that any release from the March agreement needed to be in writing, and to defend against the allegation that SSBB and Mr. Markham suppressed information from Mr. Heth regarding the agreements. Finally, the disclosure may shed light on the validity of Mr. Heth's claim that he only went forward with the December agreement based on an oral agreement with Mr. Van Riet pursuant to which Mr. Heth would be released from the March agreement, and whether Mr. Mellen provided any advice relating to such oral agreement. Accordingly, it is ORDERED that the motion is granted pursuant to CPLR § 3124 to the extent that Mr. Heth shall produce within 60 days of the date of entry of this order to SSBB and Mr. Markham (i) any email and written communications between Messrs. Heth and Mellen in connection with the March and December agreements, and (ii) any email and written communications between Messrs. Heth and Mellen post-dating execution of the December agreement solely to the extent they memorialize or relate back to advice given in connection with the March and December agreements under the "at issue" waiver doctrine. 3/5/2019
DATE
/s/ _________
ANDREW BORROK, J.S.C.