The explanatory note to this subdivision indicates that, when "the state and federal laws are in conflict on the question of waiver . . . the proper solution for the federal court is to apply the law that is most protective of privilege and work product." 6. New York case law provides that a client may waive the attorney-client privilege (1) by placing "the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information," Tupi Cambios, S.A. v. Morgenthau, 989 N.Y.S.2d 572, 575 (N.Y. Sup. Ct. 2014) (quoting Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835 (N.Y. App. Div. 1983)); or (2) "by placing the subject matter of counsel's advice in issue and by making selective disclosure of such advice," id. (quoting Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 179 A.D.2d 390 (N.Y. App. Div. 1992)). These forms of "at issue" waiver continue to be recognized under New York law following the amendments to Rule 502.
Defendant sufficiently demonstrated that the advice it gave in the course of its allegedly negligent representation was framed, in this malpractice action, as the sole cause of plaintiffs' injury in Russia. Invasion of the attorney-client privilege is necessary, under these circumstances, to determine the validity of such claims, and is vital to the defense ( see Orco Bank v Proteinas Del Pacifico, 179 AD2d 390). We have considered plaintiffs' remaining arguments and find them unavailing.
Tri-Links, 43 A.D.3d at 64, 837 N.Y.S.2d at 23 (citing Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dep't 1992)); Village Bd. of Village of Pleasantville v. Rattner, 130 A.D.2d 654, 655, 515 N.Y.S. 2d 585 (2d Dep't 1987).
New York courts recognize "at issue" waiver, which occurs "where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information." Deutsche Bank Tr. Co. of Ams. v. Tri-Links Inv. Tr., 837 N.Y.S.2d 15, 23 (1st Dep't 2007); accord Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 577 N.Y.S.2d 841, 842 (1st Dep't 1992) (affirming waiver of attorney-client privilege where plaintiff placed advice of counsel at issue and selectively disclosed portions of counsel's advice to explain its decision to underwrite a loan that it later discovered was based on false representations).
If a party puts privileged communications "at issue," it cannot complain when the other side asks to see and cross-examine on those and reasonably related communications. See Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 577 N.Y.S.2d 841 (N.Y. App. Div. 1992) (finding waiver of privilege where plaintiff placed the subject matter of counsel's advice in issue and made selective disclosure of such advice and there was a need for defendant to have access to privileged materials to contest plaintiff's claims that its attorneys advised it at all times with respect to [the matter at issue in the litigation]"). For there to be an "at issue" waiver, the party asserting the privilege must "rely on privileged advice from his counsel to make his claim or defense."
Lastly, attorney-client privilege can be waived when a party selectively produces privileged information that is beneficial to its case while withholding related privileged information that is damaging. Deutsche Bank Tr. Co. of Americas, 43 A.D.3d at 64, 837 N.Y.S.2d at 23 (citing Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dep't 1992)). The logic behind this rule is that parties should not be allowed to engage in gamesmanship that uses the attorney-client privilege as both a shield and a sword.
An example of an affirmative act that does constitute "at issue" waiver of privilege is a party's "assert[ing] as an affirmative defense [its] reliance upon the advice of counsel" ( Village Bd. of Vil. of Pleasantville v.Rattner, 130 A.D.2d 654, 655, 515 N.Y.S.2d 585 [1987] ). "Moreover, selective disclosure is not permitted as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" ( id.; see also Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 390, 577 N.Y.S.2d 841 [1992] [attorney-client privilege was waived by client's "selective disclosure" of legal advice] ). Deutsche Bank Tr., 43 A.D.3d at 64, 837 N.Y.S.2d 15 (second and third alterations in original); accord Veras Inv. Partners, 52 A.D.3d at 372, 860 N.Y.S.2d 78 (" ‘[A]t issue’ waiver occurs when a party has asserted a claim or defense that he or she intends to prove by use of the privileged material.").
See id. at 925 (noting that by plaintiff's president merely mentioning at a deposition that he had taken an action on advice of counsel, he "did not waive any attorney-client privilege by placing the subject matter of counsel's advice in issue or by making selective disclosure of such advice.");cf. Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 577 N.Y.S.2d 841 (App.Div. 1st Dep't 1992). Miteva asks for an order precluding Third Point at trial from making any mention of discussions with prior counsel concerning the substance of the advice communicated unless Miteva is now allowed an opportunity to explore the issue through discovery of the entire communication.
Seeid. at 925 (noting that by plaintiff's president merely mentioning at a deposition that he had taken an action on advice of counsel, he " did not waive any attorney-client privilege by placing the subject matter of counsel's advice in issue or by making selective disclosure of such advice." ); cf.Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 179 A.D.2d 390, 577 N.Y.S.2d 841 (App. Div. 1st Dep't 1992). Miteva asks for an order precluding Third Point at trial from making any mention of discussions with prior counsel concerning the substance of the advice communicated unless Miteva is now allowed an opportunity to explore the issue through discovery of the entire communication.
An implied waiver of the attorney-client privilege pursuant to the " at issue" doctrine has been found in situations similar to the instant case. SeeBowne v. AmBase Corporation, 150 F.R.D. 465, 488 (S.D.N.Y.1993), aff'd by 161 F.R.D. 258 (S.D.N.Y.1995)(otherwise privileged communications put in issue where party " asserts a factual claim the truth of which can only be assessed by examination of a privileged communication" ); New York TRW Title Insurance Inc. v. Wade's Canadian Inn and Cocktail Lounge Inc., 225 A.D.2d 863, 638 N.Y.S.2d 800 (3d Dep't.1996)(defendant's contention that he never intended to create an equitable mortgage placed the parties' intent at issue, thereby waiving the attorney-client privilege and allowing plaintiff to depose defendant's attorney regarding communications with client pertaining to the underlying transaction); Orco Bank, N.V. v. Proteinas Del Pacifico, S.A., 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dep't.1992)(where plaintiff