Coiro v Fed Cap Custodial Serv., Inc.

[*1] Coiro v Fed Cap Custodial Serv., Inc. 2004 NY Slip Op 51154(U) Decided on August 11, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2004
Supreme Court, New York County

ROBERT E. COIRO, et al., Plaintiffs,

against

FED CAP CUSTODIAL SERVICE, INC., MERIDIAN, INC., DYNASERV, INC., and PRUDENTIAL MAINTENANCE SERVICE, INC, Defendants.



111386/2001



For the Plaintiffs:

Steven F. Goldman, Esq., Goldman & Goldman, 386 Park Ave. South, Suite 900, New York NY 10016

(212) 370-1344

For Defendants Prudential Maintenance and ISS, Inc.:

Joseph R. Di Salvo, Esq., McCarter & English, LLP 245 Park Avenue, New York NY 10167 (212) 609-6800

Thomas D. Robertston, Esq. Sedgwick, Detert, Moran & Arnold, Three Gateway Center, 12th Fl., Newark NY 07102

Paul G. Feinman, J.

Defendants Prudential Maintenance Services, Inc. and ISS, Inc. (two of the four defendants in this action) move pursuant to CPLR 3101, 3124, and 3126 to compel completion of the deposition of plaintiff Robert E. Coiro "on all issues of liability" and for costs associated with the motion (Def.'s Mot. to Compel ¶ 14). Coiro is the lead plaintiff (of approximately forty-six plaintiffs in this action) in a toxic mold case brought by a large group of employees or former employees of LaGuardia Community College. Pursuant to discovery orders of the Justice [*2]previously assigned to oversee the discovery process in this case, the first round of depositions was limited to a representative group of plaintiffs and the questions posed were to be limited to liability. The deposition of plaintiff Coiro was commenced on November 24, 2004, and continued the following day up until his counsel refused to allow him to answer more than certain initial questions concerning a four-page narrative document which details his physical ailments allegedly acquired after the time he began teaching at LaGuardia Community College (Id. ¶ ¶ 7-9; Ex. B). For the reasons set forth below, the Court holds that the document was not attorney work product and to the extent it was a privileged attorney-client communication, the privilege has been waived. Accordingly, the defendants' motion to compel the completion of plaintiff Robert E. Coiro's deposition is granted. The branch of the motion which seeks costs and attorneys' fees related to this motion is denied.

At the deposition, Coiro testified that he prepared the document in the summer of 2000 as a "document that [he] would want to use to present to an attorney," that to the best of his knowledge, he presented it to his attorney, Mr. Steven F. Goldman, at the time of their first meeting, and that he did not present the document to any other attorney (Def.'s Mot. Ex. C at 5:12-17, 25; 6:2-8; 22:10-13). According to defense counsel, the document was obtained in response to a medical authorization signed by Coiro, from the office of Ira Casson, M.D., a physician who treated Coiro beginning sometime after September 1999 (Def.'s Mot., Di Salvo Aff. ¶ 9, n.1). The transcript of the deposition shows that after plaintiff's counsel asserted the document was "attorney-client work product"[FN1] and its release was inadvertent, the parties suspended the deposition pending a ruling by the court concerning the document (Def.'s Mot. Ex. C at 6:21; 20:8-12; 22:24-25; 23:2-3).

Under New York law, a communication between an attorney and client is privileged when a client has contacted an attorney for the purposes of obtaining legal advice or services and an attorney-client relationship has been established, and the information sought to be protected from disclosure is a "confidential communication" made to the attorney for the purpose of obtaining legal advice or services (Priest v Hennessy, 51 NY2d 62, 68-69 [1980]). The burden of establishing the privilege rests upon the party asserting it (Id. at 69). Even where the "technical requirements" are satisfied, the privilege may yield where strong public policy requires disclosure (Id.).

Defendants argue that the document at issue was never protected by attorney-client privilege or, alternatively, that Coiro has waived any applicable privilege. They argue that the document was not protected by attorney-client privilege because, inter alia, Coiro's testimony shows that he created the document prior to the establishment of an attorney-client relationship with Mr. Goldman. They point out that the narrative is undated and not directed at specific counsel, and argue that the document was "intended to be disclosed to several attorneys in contemplation of the retention of counsel." (Memo of Law at 4). [*3]

Defendants further argue the narrative is not a confidential communication. They claim that the narrative's allegations form the basis of plaintiffs' claims. Alternatively, they argue that even if the narrative was privileged, plaintiff waived the privilege by his intentional disclosure of the narrative to a third party, his doctor, "as a medical history in connection with the treatment he received" (Id. at 8). Second, Defendants argue that since plaintiff has placed his medical condition at issue by commencing the instant action, the document which describes his medical history is subject to disclosure (Id. at 9-10.). Defendants conclude that since Coiro could not have reasonably expected his medical records would remain private, the narrative was not intended to be kept confidential and therefore is not protected as an attorney-client communication.

Plaintiff improperly characterizes the document as attorney work product, given that under New York law, an attorney's work product pertains solely to documents created by an attorney (see, Graf v Aldrich, 94 AD2d 823, 824 [3d Dept. 1983]; CPLR 3101[c]). However, he also argues that he created the document to assist his attorney in handling the matter and that it is therefore an attorney-client communication and subject to privilege (CPLR 4503[a]). Under New York law, a claim of attorney-client privilege does not depend on the formal employment relationship but on whether the client had a reasonable expectation of confidentiality under the circumstances (see, Matter of Jacqueline F., 47 NY2d 215, 222 [1979]; People v Fentress, 103 Misc 2d 179, 189 [Dutchess Co. Court 1980]). The privilege of nondisclosure belongs to the client (People v Shapiro, 308 NY 453, 459 [1955]). While plaintiff admitted that he created the document prior to hiring Mr. Goldman, he testified that he created it specifically to present to an attorney and that he did not present it to any attorney other than Mr. Goldman. Under these circumstances, the document is clearly a confidential communication designed to assist plaintiff in obtaining legal advice and services from his attorney.

Defendants argue that because they received the document from a third party, namely Dr. Casson whose office included it along with Coiro's other medical records in response to the signed authorization form, the privilege has been waived (see, New York Times v Lehrer McGovern Bovis, 300 AD2d 169, 172 [1st Dept. 2002]). Plaintiff's argument that defense counsel, Mr. Joseph R. Di Salvo, produced the document "without proper foundation" because defendants have not provided evidence to show that the document actually came from Dr. Casson's files rather than inadvertently from Mr. Goldman's office (Aff. in Opp. ¶7) is unpersuasive. As noted by Mr. Di Salvo, by decision and order dated January 23, 2003, the court designated his law firm of McCarter & English to receive the medical records for each of the approximately forty-six plaintiffs in this litigation (Reply Aff. ¶ 7 n.1; Ex. A), and there is nothing to suggest that the document was not in fact received from Dr. Casson. Glaringly, plaintiff has not included an affidavit from Coiro stating that he did not, in fact, give a copy of the document to Dr. Casson. Plaintiff suggests that as a threshold matter Dr. Casson or someone from his office should be deposed to determine whether his office actually had the document.. However, here the deposition of this non-party is not necessary to the Court's determination of whether the document is privileged.

Defendants maintain that because Coiro has placed his medical condition at issue, he waives the privilege designed to protect medical information from being revealed (Green v Montgomery, 95 NY2d 693, 700 [2001]), and that this narrative which Coiro apparently [*4]presented to Dr. Casson to help explicate his medical history, has become part of his medical records. Although they believe that the document contradicts certain statements made by Coiro in his deposition testimony concerning the onset of certain symptoms (Memo of Law at 8), plaintiff argues that the document states that Coiro's allergies began in 1986 and ended in about 1995 and quotes a section from the document that states that in the fall of 1999, Coiro began to suffer from "new symptoms" including "profound unexplained fatigue, short windedness, labored breathing, periods of memory loss and periods of malaise," which are the basis for the lawsuit at issue (Aff. in Opp. ¶¶ 9-10). Given that Coiro's medical records would presumably give evidence of his being treated for allergies between 1986 and 1995, as well as his other medical conditions, it is not clear what further evidence this narrative document actually provides. Although the deposition was limited to liability questions only by the previously assigned Justice, as explained at oral argument, the defense seeks to explore Coiro's statements regarding his symptoms chronicled in the document because of its implications for the statute of limitations, and consequently liability.

As the party asserting the privilege, it was incumbent upon Coiro to make a factual showing to conclusively support his argument, or that there is a disputed factual issue warranting a hearing. In the absence of Dr. Casson's affidavit, or that of another person with personal knowledge of the medical records, the defense version of how the document came to be in its possession is undisputed. Conjecture is not enough. Accordingly, defendants' motion to compel completion of the deposition is granted. Regarding the scope of the deposition, the defendants may fully question Coiro about the statements contained in the narrative document concerning his medical history and symptoms of illness to the extent that they implicate liability and the statute of limitations. It is not the intent of the Court by this decision and order to undo the previously ordered bifurcation of liability and damages depositions.

The branch of the defendants' motion which seeks costs and attorneys' fees associated with this motion is denied. The Court finds that the plaintiff's objections were neither frivolous nor taken as a dilatory tactic. It is therefore,

ORDERED that the branch of defendants' motion which seeks to compel completion of the deposition of plaintiff Robert E. Coiro is granted and is limited in scope as set forth in the body of this decision; and it is further

ORDERED that the branch of defendants' motion which seeks costs and fees associated with this motion is denied.

This constitutes the decision and order of the Court. The Court has mailed courtesy copies only to counsel who submitted papers on the motion.

Dated: August 11, 2004 ____________________________________

New York, New York J.S.C.

111386_2001_00 5

Footnotes

Footnote 1: The attorney-client communication privilege is separate and distinct from the attorney work product privilege, and at the time of the deposition plaintiff's counsel appears to have conflated the two into one objection, "attorney-client work product." While on these facts, attorney-client communication would have been the more apt objection, the Court will consider the applicability of each privilege as if it had been separately raised.