Fewer v GFI Group Inc.

Fewer v GFI Group Inc. 2010 NY Slip Op 07813 [78 AD3d 412] November 4, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Donald P. Fewer, Respondent,
v
GFI Group Inc. et al., Appellants.

—[*1] Carter Ledyard & Milburn LLP, New York (Lawrence F. Carnevale of counsel), for appellants.

Troutman Sanders LLP, New York (Stephen F. Harmon of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered on or about May 26, 2010, which insofar as appealed from, denied defendants' motion to compel production of a joint defense agreement, unanimously reversed, on the law, with costs, and the motion granted.

Plaintiff did not meet his burden of establishing that the joint defense agreement in question was protected from disclosure by the attorney-client privilege. The agreement is not a communication from an attorney to a client "made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship" (Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593 [1989]; see Muriel Siebert & Co., Inc. v Intuit Inc., 32 AD3d 284 [2006], affd 8 NY3d 506 [2007]). Rather, it is a statement of the parties' intention that all information they share with each other remain subject to the attorney-client privilege, despite their disclosure to each other. Its drafter is not identified, and it specifically states that it creates no attorney-client relationship. Furthermore, in the absence of an attorney-client privilege, the common-interest rule does not apply (U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431 [2006]; United States v Schwimmer, 892 F2d 237, 243-244 [1989]; see Pem-America, Inc. v Sunham Home Fashions, LLC, 2007 WL 3226156, *2, 2007 US Dist LEXIS 80548, *5-6 [SD NY 2007]).

Although the motion court did not reach this issue, we further find that the work-product doctrine would not preclude discovery. There is no indication that the agreement was prepared by counsel acting as such, and it contains only standard language not uniquely reflecting a lawyer's learning and professional skills, including legal research, analysis, conclusions, legal theory or strategy (see Plimpton v Massachusetts Mut. Life Ins. Co., 50 AD3d 532, 533 [2008]; Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]). Concur—Mazzarelli, J.P., Friedman, Catterson, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 31309(U).]