On February 13, 2025, the First Department issued a decision in Certain Underwriters at Lloyd’s, London v. NL Indus., Inc., 2025 NY Slip Op. 00824, holding that a party’s submission of an affidavit by its general counsel did not put privileged communications at issue, explaining:
Supreme Court properly found that no at issue waiver of privilege occurred, as NL Industries did not affirmatively place the subject matter of its own privileged communications at issue in the litigation. Therefore, the insurers were not entitled to invade NL Industries’ attorney-client or work product privileges. Despite the insurers’ position otherwise, the statements in the affidavits of NL Industries’ general counsel, submitted in opposition to insurers’ summary judgment motion, are not privileged. Indeed, as Supreme Court aptly noted, some of the statements are not even legal in nature, but are merely factual. The statements that the insurers point to concern policy language, dictionary definitions, evidence presented at the trial underlying this coverage action, and various court decisions, none of which serve to waive the attorney-client privilege. Furthermore, even assuming that the general counsel’s statements involve any privilege, the insurers fail to show that invasion of the privilege is required, or that applying the privilege would deprive the insurers of vital information.
(Internal quotations and citations omitted).