Cimato, Jr. v. State Farm Fire and Casualty Company, No. 1:2016cv00094 - Document 34 (W.D.N.Y. 2018)

Court Description: ORDER granting 25 Motion to Compel Disclosure of Documents #3114-3117 and directing that the remaining documents be provided to the Court for in camera inspection within 10 days of the entry of this Decision and Order. Signed by Hon. H. Kenneth Schroeder Jr. on 1/31/2018. (KER)
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e communications -3- with an attorney or were created for the sole purpose of obtaining or providing legal advice. Dkt. #27, pp.9-11. Defendant responds that the documents withheld pursuant to attorneyclient privilege are communications with outside counsel regarding its legal rights and obligations and were intended to be and remain confidential. Dkt. #31, p.6. Defendant seeks to clarify that specific bates stamped documents are claim notes authored by State Farm investigators regarding communications with outside counsel, Scott D. Storm, Esq. and/or Michael A. Troisi, Esq., wherein counsel provided legal advice and/or State Farm provided information to counsel for purposes of obtaining legal advice. Dkt. #31, p.8. Plaintiff responds that documents created prior to a determination of coverage are exempt from the protection afforded by the attorney-client privilege. Dkt. #33, p.6. “Under New York law, the attorney-client privilege protects confidential communications between client and counsel where such communications are made for the purpose of providing or obtaining legal advice.” HSH Nordbank AG N.Y. Branch v. Swerdlow, 259 F.R.D. 64, 70 (S.D.N.Y. 2009), citing N.Y. C.P.L.R. § 4503(a)(1). “A corporation’s communications with counsel, no less than the communications of other clients with counsel, are encompassed within the legislative purposes of C.P.L.R. 4503, which include fostering uninhibited dialogue between lawyers and clients in their -4- professional engagements, thereby ultimately promoting the administration of justice.” Rossi v. Blue Cross & Blue Shield, 73 N.Y.2d 588, 592 (1989). “In order for the privilege to apply, the communication from attorney to client must be made ‘for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.’” Spectrum Sys. Int’l Corp. v. Chemical Bank, 78 N.Y.2d 371, 377-78 (1991), quoting Rossi, 73 N.Y.2d at 593. “For the privilege to apply when communications are made from client to attorney, they must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose.” Spectrum, 78 N.Y.2d at 593. “So long as the communication is primarily or predominantly of a legal character, the privilege is not lost merely by reason of the fact that it also refers to certain nonlegal matters.” Rossi, 73 N.Y.2d at 594. However, “an investigative report does not become privileged merely because it was sent to an attorney.” Spectrum, 78 N.Y.2d at 379. The critical inquiry is whether the communication was made in order to render legal advice or services to the client. Id. The burden of establishing attorney-client privilege is on the party asserting it. Spectrum, 78 N.Y.2d at 377. The remainder of the disputed documents were created prior to defendant’s determination to deny plaintiff’s claim. That fact does not preclude a determination that the documents are protected by the attorney-client privilege, but does require the Court to conduct an in camera review of the documents to determine whether “they are primarily reports of an investigation of plaintiff’s claim,” and therefore -5- discoverable, Melworm v. Encompass Indem. Co., 37 Misc. 3d 389, 393 (S.Ct. Nassau Cty 2012), aff’d 112 A.D.3d 794 (2nd Dep’t 2013), or “primarily and predominantly of a legal character,” and therefore protected by the attorney-client privilege. Melworm, 112 A.D.3d at 796. The documents shall be provided to the Court within 10 days of the entry of this Decision and Order. The portions of the documents which defendant seeks to protect as privileged shall be highlighted. SO ORDERED. DATED: Buffalo, New York January 31, 2018 s/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. United States Magistrate Judge -6-
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