On August 4, 2023, Justice Reed of the New York County Commercial Division issued a decision in West 87 LP v. Paul Hastings LLP, 2023 NY Slip Op. 50821(U), holding that the common interest privileged shielded documents shown to third-parties from production, explaining:
New York courts generally favor open and liberal discovery. However, the CPLR establishes three categories of protected materials: privileged matter, attorney work product and trial preparation materials.
The attorney-client privilege shields from disclosure confidential communications between an attorney and client made for the purpose of obtaining legal advice. It is narrowly construed so to not be in tension with the court’s policy favoring liberal discovery. The party asserting the privilege bears the burden of establishing entitlement to the privilege, as well as the burden of showing confidentiality has not been waived.
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The attorney-client privilege is narrowly construed and applies only to communications between attorney and client made for the purpose of obtaining legal advice. Communications do not automatically obtain privilege status merely because they were created or communicated by an attorney. Only if the communications are transmitted in the course of professional employment, that convey a lawyer’s assessment of the client’s legal position, does the privilege apply. Communications between attorney and client and subsequently disclosed to third parties are not protected by the attorney-client privilege. However, an exception is made when under the common interest doctrine, attorney-client communications disclosed to a third party remain privileged if shared with parties of common legal interest in pending or anticipated litigation.
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[T]here are a number of documents that contain information regarding purported legal advice provided to plaintiffs, but communicated through third-party entities who, plaintiffs admit, are not attorneys and not parties to the litigation. Generally, communications between attorney and client made in the presence of or subsequently disclosed to third parties are not protected by the attorney-client privilege. Under the common interest doctrine, however, attorney-client communications disclosed to a third party remain privileged if shared with parties of common legal interest in pending or anticipated litigation. Here, it appears that the entities referenced in the withheld communications are interrelated, and it appears the communications were made for the purpose of discussing the pending litigation, strategies for addressing the litigation, or for preparation of relevant materials for the litigation. Based upon this court’s review, the communications between plaintiffs, nonparty entities and non-lawyers are privileged by virtue of the entities’ common legal interests in the prosecution of this action.
(Internal quotations and citations omitted).