Privilege and Deposition Transcripts

CPLR R. 3116

CPLR R. 3117

CPLR § 4503 Attorney

PJI 1:76

Ramirez v Willow Ridge Country Club, Inc., 2011 NY Slip Op 03714 (App. Div., 1st 2011)

To the extent plaintiff asserts the verdict was inconsistent, the argument is unpreserved since it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]). 

Plaintiff's claim that the court improperly charged the jury pursuant to PJI 1:76 that an inference could be drawn from plaintiff's refusal to waive his attorney-client privilege and allow a former paralegal at the firm which represented plaintiff in his Worker's Compensation claim to testify for the defense is without merit (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983] ["it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory"]).

Plaintiff also asserts that the court erred in precluding plaintiff's use of the EBT transcript of defendant's witness Alexander Jack — plaintiff's foreman — during cross-examination on the grounds that plaintiff failed to show that he complied with CPLR 3116. Specifically, CPLR 3116(a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with 3116(a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116(a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

Here, the court properly precluded the use of Jack's unsigned deposition transcript during Jack's cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. Although at one point in his testimony Jack seems to state that he signed the deposition at his lawyer's office, upon further questioning, it appears that he was confused and was actually referring to taking an oath on the date the deposition was taken (see CPLR 3113[b]), rather than on a separate date when the transcript was sent to him for changes and signing pursuant to CPL 3116.

Although there is no time frame as to when a party should send a deposition transcript to a witness for compliance with CPLR 3116(a), a trial court need not adjourn a trial during the cross-examination of a witness so the that the party cross-examining the witness may comply with the section. In any event, since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.

Nor has plaintiff demonstrated that any of his other claims regarding the conduct of the trial court were so prejudicial as to deprive him of a fair trial. The rulings on admissibility of evidence were proper and, in any event, any error was harmless.

The bold is mine.  The privilege potion is probably the most interesting.

Attorney Client Privilege, emails, and family: CPLR § 4503

CPLR § 4503 Attorney
(a) 1 Confidential communication privileged

The attorney-client privilege, which is codified in CPLR 4503(a), "fosters the open dialogue [*2]between lawyer and client that is deemed essential to effective representation" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377). Since the attorney-client privilege " constitutes an obstacle' to the truth-finding process'" (Matter of Priest v Hennessy, 51 NY2d 62, 68, quoting Matter of Jacqueline F., 47 NY2d 215, 219), however, the "protection claimed must be narrowly construed" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377). The scope of the privilege is to be determined on a case-by-case basis (see Matter of Priest v Hennessy, 51 NY2d at 68;Matter of Jacqueline F., 47 NY2d at 222), and "[t]he burden of proving each element of the privilege rests upon the party asserting it" (People v Osorio, 75 NY2d 80, 84).

Here, the plaintiff failed to meet her burden of demonstrating, as required to avoid discovery, that the e-mail communications between herself and her attorneys were made in confidence. According to the plaintiff, her children did not merely know the password to the e-mail account that she used to communicate with her attorneys, but the children regularly used the e-mail account, and, the plaintiff alleged, the defendants' mere act of sending an e-mail addressed solely to her on that account constituted "publication" for purposes of establishing a defamation cause of action. Furthermore, the individuals who had unrestricted access to the plaintiff's attorney-client communications were not unrelated to the plaintiff's adversary or to her lawsuit (cf. Stroh v General Motors Corp., 213 AD2d 267, 267-268). While these individuals were the plaintiff's own children, they were also the children of her adversary, and the plaintiff's lawsuit is grounded upon the publication of the allegedly defamatory e-mail to one of the children. There is no evidence, moreover, that the plaintiff requested that the children keep the communications confidential. Under these circumstances, it cannot be said that the plaintiff had "a reasonable expectation of confidentiality" in the e-mail communications between herself and her attorneys, which communications were freely accessible by third parties (People v Osorio, 75 NY2d at 84; cf. People v Mitchell, 58 NY2d 368, 375; People v Harris, 57 NY2d 335, 343, cert denied 460 US 1047; Sieger v Zak, 60 AD3d 661, 662-663; In re Asia Global Crossing, Ltd., 322 BR 247, 251, 258 [Bankr SD NY]; Scott v Beth Israel Med. Ctr., Inc., 17 Misc 3d 934). Accordingly, because "the attorney-client privilege does not attach unless there is a confidential communication' between counsel and his or her client" (Matter of Vanderbilt [Rosner-Hickey], 57 NY2d 66, 76), the Supreme Court properly granted that branch of the defendants' motion which was to compel the plaintiff to produce the subject e-mail communications, and properly denied that branch of the plaintiff's cross motion which was for a protective order pursuant to CPLR 3103 with respect to those e-mail communications. 

CPLR R. 3124; CPLR R. 3120; CPLR § 4504(a); CPLR § 4503(a); Privilege

CPLR R. 3124

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse
(a) Confidential information privileged

Jackson v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 02712 (App. Div., 3rd, 2009)

[P]laintiff commenced this second fraud action against defendants in
Clinton County, again alleging that certain purported inconsistencies
between other official documents and defendant's medical records for
the victim, which plaintiff claims were [*2]fraudulently
made, deprived him of the ability to present a viable defense at his
criminal trial. Plaintiff filed an amended notice of discovery (see
CPLR 3120) seeking limited "non-medical information" in defendants'
medical records regarding the victim, relating strictly to "time data"
for the date of the victim's death, namely "time of all calls" to
Jamaica Hospital, "time of arrival" at its emergency room and "time of
death." Plaintiff requested that all confidential and privileged
material be redacted (see CPLR 4504 [a]).

Defendants did not respond to plaintiff's discovery demand, so plaintiff moved to compel a response (see
CPLR 3124). Jamaica Hospital cross-moved to deny that relief. Supreme
Court (Dawson, J.) granted plaintiff's motion and denied Jamaica
Hospital's cross motion. Jamaica Hospital now appeals.

Jamaica Hospital has not demonstrated that res judicata applies
to this motion. Under that doctrine, a prior valid final judgment on
the merits precludes litigation between the same parties of any claim
that was or could have been raised in the prior action
(see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12 [2008]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Kinsman v Turetsky, 21 AD3d 1246, 1246-1247 [2005], lv denied 6 NY3d 702 [2005]). Supreme Court, Queens County merely denied plaintiff's unopposed motion to compel disclosure [FN1] due to lack of standing, which is not a determination "on the merits" (see Landau, P.C. v LaRossa, Mitchell & Ross,
11 NY3d at 13-14 and n 3). Likewise, the record does not indicate that
there has been a "final judgment" rendered in the Queens County matter
(Parker v Blauvelt Volunteer Fire Co.,
93 NY2d at 347). Thus, Jamaica Hospital has not shown that the Queens
County order precludes plaintiff's present motion to compel discovery.

The documents that plaintiff seeks, as redacted, are not
privileged and must be disclosed. Jamaica Hospital, as the party
objecting to disclosure, bore the burden of proving its assertion that
the material sought is privileged under CPLR 4504 (a) and the federal
Health Insurance Portability and Accountability Act
(42 USC § 1320d et seq. [hereinafter HIPAA]; see Koump v Smith, 25 NY2d 287, 294 [1969]; see also Dillenbeck v Hess,
73 NY2d 278, 287 [1989]). The physician-patient privilege "prohibits
disclosure of any information acquired by a physician 'in attending a
patient in a professional capacity, and which was necessary to enable
[the physician] to act in that capacity'" (Dillenbeck v Hess, 73 NY2d at 284, quoting CPLR 4504 [a]; see State of New York v General Elec. Co.,
201 AD2d 802, 802-803 [1994]). The very narrow information sought by
plaintiff regarding when certain events occurred, as documented in the
victim's medical records on the date of his death was not information
necessary to the victim's medical treatment; it was merely documented
facts regarding time data that would be obvious to a layperson
(see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]; Henry v Lewis, 102 AD2d 430, 437 [1984] [dates and times of treatment not privileged]; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]; People v Elysee, 49 AD3d 33, 37-39 [2007], affd 12 NY3d 100 [2009]; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 113 AD2d 49, 55 [1985], affd 69 NY2d 232 [1987], cert denied 482 US 928 [1987]). Hence, the information was not privileged under state law.

HIPAA regulates disclosure of
"protected health information," which includes "individually
identifiable health information," defined as health information that
"[i]s created or received by a health care provider . . . and [r]elates
to past, present, or future physical or mental health or condition of
an individual[,] the provision of health care to an individual [or
payment therefor]," and identifies the patient or which reasonably
could be so used (45 CFR 160.103; see 42 USC 1320d [6] [B]; Arons v Jutkowitz, 9 NY3d 393,
413 [2007]). The time data sought by plaintiff cannot be characterized
as protected health information, as it has no apparent connection to
the victim's physical condition or medical care.
As Jamaica Hospital
failed to demonstrate that the circumscribed redacted time data is
privileged, Supreme Court properly denied its cross motion and granted
plaintiff's motion to compel a response to his amended notice for

CPLR § 4503 Attorney
(a) 1 Confidential communication privileged

Straus v Ambinder, 2009 NY Slip Op 02772 (App. Div., 2nd, 2009)

The plaintiff met his burden of proving that the subpoenaed documents were protected by the attorney-client privilege (see CPLR 3101[b], 4503[a]; Matter of Priest v Hennessy, 51
NY2d 62, 69). While a court is not bound by the conclusory
characterizations of a client or his attorney, here, there was no
reason to disregard the attorney's sworn statement regarding the nature
of the engagement of the accounting firm (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379-380).

In any event, the plaintiff also established that the requested
documents were protected as material prepared by the accountants for
his attorneys in anticipation of litigation (see CPLR 3101[d][2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266
AD2d 117 ). Where, as here, the party seeking to prevent disclosure
makes the required showing that the documents were prepared [*2]solely
for litigation, the burden shifts to the party seeking disclosure to
establish that there is a substantial need for the materials and they
cannot be obtained elsewhere without undue hardship
(see Volpicelli v Westchester County, 102 AD2d 853; Zimmerman v Nassau Hosp., 76
AD2d 921). Inasmuch as the defendant failed to show that he could not
obtain the requested documents without undue hardship, the Supreme
Court properly issued the protective order.

The bold is mine.