Party Not Allowed to Present at Trial Document it had Withheld as Privileged During Discovery

On April 14, 2022, the First Department issued a decision in Gottwald v. Sebert, 2022 NY Slip Op. 02492, holding that a party should not have been allowed to present at trial a document that it had withheld as privileged during discovery, explaining:

The court providently exercised its discretion in precluding the privileged communication that defendants sought to introduce after four years of extensive discovery and two years after discovery had closed. A showing of willful and contumacious behavior was not required, and the preclusion is not disproportionate to defendant’s discovery malfeasance. Had such selective disclosure been timely made, plaintiffs could have altered their litigation strategy and expanded the scope of discovery based on defendant’s waiver of the attorney-client privilege.

(Internal quotations and citations omitted).

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