Galison v Greenberg
Annotate this CaseDecided on November 8, 2004
Supreme Court, New York County
WILLIAM A. GALISON and BLACK PEARL RECORDS, LLC, Plaintiffs,
against
JEFFREY A. GREENBERG, ESQ., BELDOCK LEVINE & HOFFMAN, LLP, MADELEINE PEYROUX and ROUNDER RECORDS, Defendants.
602478/04
Herman Cahn, J.
Defendant, Rounder Records Corp. moves for, among other things, a protective order, "suppressing" plaintiffs' counsel's use of e-mail inadvertently annexed to motion papers served by defendant's counsel on plaintiffs' counsel.
THE FACTS
On September 15, 2004, Rounders counsel, Stacy Grossman, Esq., moved to dismiss the amended complaint in this action. The motion papers included certain exhibits. Among the exhibits were nine pages of documents which were inadvertently added to the motion papers. Included therein was a two page e-mail dated July 23, 2004, which defendant's counsel asserts is protected by the attorney-client privilege.
On October 7, 2004, plaintiffs' counsel, Harvey Mars, served papers in opposition to the motion to dismiss, including a memorandum of law and an affidavit in opposition, of their counsel. While reading the plaintiffs' memorandum of law, defendant's counsel discovered, for the first time, that the nine pages of documents had inadvertently been attached to Exhibit A of her affirmation served in support of the motion to dismiss.
Mars was in possession of the e-mail from September 15 until October 7. Grossman asserts that Mars made reference to the e-mail in his opposition memorandum of law, and attached a copy of it to his affirmation as Exhibit C. In fact, that is how she realized that it had been inadvertently turned over to Mars.
With respect to the e-mail, Grossman affirms that its subject line read, "Re: Madeleine Peyroux/William Galison". The e-mail began, "Hi Mark", and its first paragraph allegedly indicated that a client was soliciting legal advice from her attorney. Grossman affirms that she did not intend to waive the attorney-client privilege, nor did Rounder authorize her to do so; the release of the e-mail was completely inadvertent.
The e-mail concerns correspondence between an employee of Rounder and Mark Fischer [*2]("Fischer"), Rounder's outside counsel.[FN1] He has personally been involved with this action since its inception. Attorney John Virant, Rounder's President, and Marty Willard, Rounder's in-house counsel, were the other recipients of the e-mail.
On October 8, 2004, Grossman wrote a letter, addressing the unintended disclosure of the e-mail and had it hand-delivered to Mars. She also wrote a similar letter to all other counsel who appeared in this action, that same day.[FN2] In her letter to Mars, Grossman explained, among other things, that the prior evening, she learned, for the first time, that nine pages of documents, including the two-page e-mail, had been accidentally attached to Exhibit A of her affirmation in support of the motion to dismiss; that such attachment was a clerical error, and that the e-mail was protected by the attorney-client privilege. She set forth arguments showing that the e-mail was a privileged communication, and that its contents clearly indicated that it was an attorney-client communication.
Grossman demanded that Mars return the e-mail, along with all copies of the e-mail, to her, and that he withdraw those portions of plaintiffs' memorandum of law and his affirmation, which made reference to the e-mail.
Mars responded by letter maintaining that because Grossman filed an affirmation, which contained the contested documents as an exhibit, it was not at all clear to him that their production was inadvertent. He also wrote that the documents bolstered his clients' position that the defendants intentionally and maliciously precluded them from marketing the recently released recording, "Got You on My Mind".
Mars further wrote that since the documents buttressed his clients' position, he would vigorously oppose any claim that Grossman did not waive the attorney-client privilege. He also asserted that because the documents had been released, his clients would be prejudiced, if they were excluded. As an "accommodation," he offered to provide Grossman with a copy of the e-mail from his file.
On October 13, 2004, Mars drafted a second letter to Grossman, taking what appeared to be a less rigid stance. He indicated that he would replace Exhibit C, the one that contained the contested e-mail, with an affirmation he intended to file in court.
Rounder now moves for a protective order, suppressing the e-mail.
DISCUSSION
Inadvertent disclosure of a document protected by the attorney-client privilege, will not constitute a waiver of the privilege. An intent to waive the privilege by disclosure of the document must be shown, in order to have a valid waiver. Manufacturers and Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 398 (1987).
Here, it is clear that the disclosure was inadvertent and unintentional. Upon finding that the e-mail had been turned over to plaintiffs' counsel, Grossman immediately took steps to [*3]demand its return. Her actions belie a claim of intentional waiver. Nothing submitted in opposition to the within motion, shows that the disclosure was intentional.
Granting the within motion would not prejudice the plaintiffs. Since the document should not have been produced in the first place, plaintiffs will not be worse off by not being able to use it.
Further, the document at issue is clearly protected by the attorney-client privilege. It is between a Rounder employee and Rounder's counsel, with copies being sent to the other Rounder personnel.
The court recognizes that granting the within motion will not place the parties in the position they were in before the disclosure the genie can not be put back in the bottle. By preventing further use of the document, and requiring that all copies be returned to Rounder's counsel, the court can, at least, minimize the damage.
The court also notes that both the Association of the Bar of the City of New York, in an opinion of its Committee on Professional and Judicial Ethics, opinion number 2003-04, 2004 WL 837937, and the New York County Lawyers Association, in an opinion of its Committee on Professional Ethics, opinion number 730, 2002 WL 31962702, have considered the issue. Both conclude that when receiving a communication or e-mail which the lawyer knows or should reasonably know contains privileged material, the attorney is obligated to "promptly notify the sending attorney" thereof, to refrain from further review of the communication, and to return or destroy it if so requested. Counsel should be aware of their obligations in these circumstances, and promptly adhere to them, in order to avoid sanctions.
Plaintiffs' counsel is directed to:
(1) Return all copies of the e-mail in his possession, to Grossman, and, of course, not make other or additional copies.
(2) To the extent that plaintiffs' counsel has disseminated copies of the e-mail, he shall serve a copy of this decision and order on all persons or firms to whom it was disseminated, together with a letter demanding immediate return of all copies of the e-mail for return to Grossman.
(3) Mars shall serve and file an affidavit of compliance with the above, within three days of service on his office of a copy of this decision.
(4) To the extent that any of the papers submitted in opposition to the motion to dismiss refer to, or quote from, the e-mail, the document(s) shall be redacted to remove all such references or quotes, or in the alternative, new documents may be submitted in place of the offending ones. This is to be done within one week of service of a copy of this decision and order.
All other counsel in this action who have received a copy of the e-mail shall comply with the above directions within the same time limits.
That branch of the motion seeking to disqualify plaintiffs' counsel, and for sanctions, is denied.
The foregoing constitutes the decision and order of the court.
Dated: November 8 , 2004 ENTER:
______/s/__________________ J.S.C. [*4]
Footnotes
Footnote 1: Grossman alleges that in view of previous communications concerning this matter, Mars was aware of Fischer's status as Rounder's outside counsel.
Footnote 2: Grossman alleges that she wrote to Mars and co-defendant's counsel, less than 24 hours after discovering the inadvertent production of the e-mail.
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