Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 2012 NY Slip Op 00827 (1st Dept., 2012)

Although the party challenging disclosure bears the burden of establishing that the information sought is immune from disclosure (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]), defendants here, as proponents of the motion, did not challenge [*2]the existence of a privilege until their reply. "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Accordingly, the court erred in granting defendants' motion on burden grounds.

Furthermore, the " [a]t issue' waiver of 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]). However, the fact "that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue' in the lawsuit" (id. at 64; see also Long Is. Light. Co. v Allianz Underwriters Ins. Co., 301 AD2d 23, 33 [2002]). Generally, no "at issue" waiver is found where the party asserting the privilege does not need the privileged documents to sustain its cause of action (see Deutsche Bank at 65).

Here, plaintiffs did not waive privilege by placing RMG's review of the loans "at issue." All references to the "third-party consultant" in their complaint could be stricken and it would still stand. Mention of a third-party consultant was not made as an element of the claim, but as a good-faith basis for the allegations made. Since plaintiffs do not "need the privileged documents to sustain [their] cause of action," they have not "waived the attorney-client privilege by injecting privileged materials into the lawsuit" (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 397 [1987]). Nor did plaintiffs waive the privilege by making a selective non-disclosure (see Carone v Venator Group, 289 AD2d 185 [2001]).

Blank Rome, LLP v Parrish, 2012 NY Slip Op 00655 (1st Dept., 2012)

Defendant agreed in the so-ordered stipulation that "any attorney-client privilege applicable to his communications with attorneys representing him is waived for the purposes of this action." By this clear and express provision, defendant waived his attorney-client privilege with respect to the privileged documents produced by Storch Amini to the extent the documents involve matters relevant to the claims and defenses in this action (see DLJ Mtge. Capital Corp., [*2]Inc. v Fairmont Funding, Ltd., 81 AD3d 563, [2011]; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189, 195 [2002]).

Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 2012 NY Slip Op 00357 (App. Div., 2nd 2012)

A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information (see Hurrell-Harring v State of New York, 75 AD3d 667, 668; 601 Realty Corp. v Conway, Farrell, Curtin & Kelly, P.C., 74 AD3d 1179, 1179; Raphael v Clune White & Nelson, 146 AD2d 762, 763; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835). Moreover, a waiver may be found where a party engages in selective disclosure, "as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Village Bd. of Vil. of Pleasantville v Rattner, 130 AD2d 654, 655).

Contrary to the contention of the defendants third-party plaintiffs, under the circumstances presented, the plaintiff did not place the subject matter of the subject e-mail communications in issue and application of the privilege will not deprive them of vital information in defense of her claims. Nor is disclosure of the subject e-mails required under the doctrine of selective disclosure (cf. Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390; Village Bd. of Vil. [*2]of Pleasantville v Rattner, 130 AD2d at 655). Accordingly, the Supreme Court properly denied the motion of the defendants third-party plaintiffs to compel the third-party defendant to produce certain e-mail communications withheld from disclosure on the ground that they were protected by the attorney-client privilege.

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