“At issue” waiver of privilege

We find no merit to defendant's argument that privileged materials
relating to and created after commencement of the Doctor's Hospital
Action have been put "in issue" by this litigation and are therefore
discoverable. Such argument fails to recognize that nothing that
plaintiff's attorneys could have said or done in the prior lawsuit
could have possibly affected plaintiff's reliance on defendant's
allegedly erroneous advice given years earlier in connection with the [*2]formation
of the D5 Trust. " At issue' waiver of [the attorney-client] privilege
occurs where a party affirmatively places the subject matter of its own
privileged communication at issue in litigation, so that invasion of
the privilege is required to determine the validity of a claim or
defense of the party asserting the privilege, and application of the
privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56,
63 [2007]). While any communications between plaintiff and its
attorneys in the Doctor's Hospital Action that evaluated defendant's
prior advice in the allegedly bungled D5 Trust transaction are
certainly relevant to the issue of defendant's alleged malpractice,
plaintiff disavows any intention to use such communications and
defendant fails to show that any such communications are necessary to
either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a
privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370,
374 [2008]). Nor does the question of the reasonableness of the
settlement amount that plaintiff seeks to recover, without more, put
plaintiff's privileged communications with its attorneys concerning the
settlement "in issue" (Deutsche Bank, 43 AD3d at 57). No reason
appears why the reasonableness of the settlement cannot be determined
with the copious materials that defendant has already received,
including otherwise privileged communications, dating from before the
commencement of the Doctor's Hospital Action. We have considered
defendant's other arguments and find them unpersuasive.