On November 1, 2022, the First Department issued a decision in 2138747 Ontario Inc. v. Lehman Bros. Holdings, Inc., 2022 NY Slip Op. 06087, holding that the allegations in a legal malpractice complaint did not waive the attorney-client privilege in a related action, explaining:
Defendant Lehman’s motion to compel plaintiff to produce certain communications and documents that had been withheld, on the basis of attorney-client privilege, should have been denied. Plaintiff’s conduct in bringing a legal malpractice claim against its former counsel, Goodmans, did not trigger the at issue waiver doctrine with regard to plaintiff’s breach of contract claim against defendant Lehman. An at-issue waiver of the attorney-client privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue, such as by asserting a claim or defense that the party intends to prove by use of the privileged material.
While plaintiff has waived the attorney-client privilege as to any information that has already been revealed in the pleadings of the malpractice claims against Goodmans, there is no subject matter waiver as a result of these limited disclosures. The advice of counsel is not at issue in plaintiff’s breach of contract claims against defendant Lehman. Nor is this a case where the holder of the privilege affirmatively seeks to use privileged communications while preventing his adversary from examining the remainder of the communications. Thus, the attorney-client communications cited by plaintiff, in the pleadings of the malpractice claims, against Goodmans did not waive plaintiff’s attorney-client privilege as to any confidential communications withheld.
(Internal quotations and citations omitted).