Plaintiff Waived Privilege By Putting Advice of Counsel At Issue

On May 3, 2022, the First Department issued a decision in 2138747 Ontario Inc. v. Lehman Bros. Holdings, Inc., 2022 NY Slip Op. 02936, holding that a plaintiff waived the attorney-client privilege by putting its counsel’s advice at issue and selectively disclosing it, explaining:

The court properly determined that plaintiff waived the attorney-client privilege by placing the subject matter of its attorneys’ advice at issue in this case and then by making selective disclosure of that advice. While plaintiff now disavows any intention to use privileged communications and documents in the prosecution of its cause of action against defendant, it was required to use them for its malpractice claim and selectively disclosed communications.

(Internal citations omitted).

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