Opinion
01 Civ. 2698 (LAK)
February 5, 2002
ORDER
Plaintiff here claims that Dr. Brennan, through his former attorney, Sean O'Shea, tortiously interfered with her business relations with her former employer, American Broadcasting Companies, Inc. ("ABC"). She first sought a variety of pertinent documents from Brennan pursuant to Fed.R.Civ.P. 34. Brennan produced a few documents. In the main, however, he responded by stating that the relevant documents were in the hands of O'Shea. Plaintiff thereupon served a subpoena on O'Shea, but O'Shea has moved to quash the subpoena. He asserts that (1) he cannot be compelled to produce the documents because they are subject to a retaining lien he has asserted to secure payment by Brennan of his unpaid fee, (2) the documents he possesses are only copies, the originals of which can be obtained from Brennan, and (3) certain of the documents are protected by attorney-client privilege and/or work product.
O'Shea is entitled to assert, and the Court within limits obliged to respect, a retaining lien for fees owed by Brennan. See Pomerantz v. Schandler, 704 F.2d 681, 683 (2d Cir. 1983). But it is not Brennan who here seeks access to the documents. As Judge Conner wisely and persuasively pointed out in Tri-Ex Enterprises, Inc. v. Morgan Guaranty Trust Co., 583 F. Supp. 1116 (S.D.N Y 1984), the value of O'Shea's lien actually would be enhanced by allowing Brennan's adversary, but not Brennan, to have access to the documents.
This of course presupposes that Brennan and O'Shea are not acting collusively for the purpose of using the lien to suppress evidence that lies in O'Shea's file. Having noted this, the Court hastens to add that no such charge has been made here.
O'Shea's other objections are not very weighty. While he claims that his files contain nothing unique, the fact is that his former client obviously disagrees. In these circumstances, there has been no showing that plaintiff can obtain the information elsewhere. And the privilege objection falls in the face of plaintiff's assertion that all she presently wants is a privilege list as required by the rules of this Court.
Accordingly, O'Shea's motion to quash plaintiff's subpoena is resolved in the following fashion:
1. O'Shea shall produce to plaintiff (but not to Brennan) on or before February 14, 2002, (a) all documents called for by the subpoena except those as to which claims of attorney-client privilege or work product protection is asserted, and (b) a privilege list in compliance with the rules of this Court enumerating each document withheld from production on the basis of a claim of attorney-client privilege or work product.
2. Plaintiff shall retain all documents produced to her by O'Shea in confidence and use them only for purposes of this lawsuit, provided, however, that plaintiff may permit Brennan to view the documents when he is being questioned about them during his deposition or at trial. The foregoing restriction shall expire upon the first to occur of (a) O'Shea's consent, (b) the resolution of the fee dispute between O'Shea and Brennan, and (c) the posting by Brennan for the benefit of O'Shea of a bond in an amount sufficient to afford full security for O'Shea's claim.
SO ORDERED.