Algu v Rasiawan
Annotate this CaseDecided on August 5, 2015
Supreme Court, Queens County
Bhagrathlya Algu, et al., Plaintiffs,
against
Budram Rasiawan, et al., Defendants.
22904/2012
For Plaintiff: Jacoby & Meyers, LLP., 279 Route 300, Newburgh, NY 12551
For Defendants: Ryan, Perrone & Hartlein, P.C., 200 Old Country Road, Mineola, NY 11501
Martin E. Ritholtz, J.
Character actress Clara Peller became an instant celebrity in 1984 for a television commercial for the Wendy's fast food restaurant chain where, as an irritable and crotchety customer, after searching in vain for assistance to complain about the underwhelming portion of meat served her on an oversized bun, she finally voiced her outrage, yelling: "Where's the beef?" This Court, following an attempted in camera inspection of an insurance company's files in this wrongful death action, shares the frustrated outrage of Ms. Peller's character. The insurer's unhelpful manner of presentation of papers to the Court and its blanket approach in resisting disclosure, while avoiding all specifics of its claim of privilege, is, indeed, exasperating. The circumstances of the present case are so striking, and the events encountered herein so likely of repetition in other litigations, that publication of this decision will be of interest to the Bench and Bar, serve the interests of justice, and, remind counsel of their responsibilities to a tribunal.
The complaint alleges that the defendants owned and operated a house in Queens County and that, on January 4, 2012, the house caught fire. Plaintiff Bhagrathlya Algu, rented an apartment in the house, and the severe physical injuries she sustained during the fire resulted in her death and this lawsuit. Pursuant to a so-ordered stipulation of November 13, 2014, the Court stated it would conduct an in camera inspection of the entire insurer's claim file, including inspection records and photographs. A paralegal of the counsel for the defendants, sent to the Court "a CD containing Allstate Insurance Company's fire file," and did not provide any elaboration.
When the Court examined the compact disc, it appeared to be at least 2,000 pages long, with writing on both sides of the same sheet, and without any Bates-stamping of each page. No privilege log accompanied the papers. When this Court asked its Chambers staff to contact counsel for the insurer to provide a hard copy of the papers, counsel complied. Counsel for the insurer did not submit a written privilege log or any written memorandum or similar document in support of its position of privilege. Instead, defense counsel stated to Chambers, orally, that it was opposed to production of the entire file.
When the Court's staff asked the insurer's counsel to provide documents with Bates-stamping and accompanied by a privilege log and a supporting memorandum of law, the response to the judicial inquiry was steadfast adherence to its position. The response of avoidance and ignorance is described in the Bible. After Cain killed his brother Abel, in response to God's question seeking Abel's whereabouts, Cain first denied knowledge and then retorted with self-righteous indignation, sarcasm, and rationalization, asking, "Am I my brother's keeper?" See, Genesis 4:9. Thus, as exemplified by Cain petulantly addressing the Ultimate Judge, or the response by the insurer in the instant case to the Court's repeated demands for a privilege log and a set of Bates-stamped documents, denial of responsibility is not new.
Federal and New York State law concerning claims of privilege are very similar. The Supreme Court of the United States, in Kerr v. United States District Court, has stated: " [I]n camera review of the documents is a relatively costless and eminently worthwhile method to insure that the balance between petitioners' claims of irrelevance and privilege and plaintiffs' asserted need for the documents is correctly struck." 426 U.S. 394, 405 (1976).
In both the federal and New York State systems, one must identify documents to which claims of privilege are designed to protect. See, Fed. R. Civ. Pro. 45(e)(2) and CPLR 3122(b).
"It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes." Marte v. Brooklyn Hosp. Ctr., 9 AD3d 41, 46 (2nd Dept. 2004); accord, Nicholson v. Keyspan Corp., 2007 WL 121723, 2007 NY Slip. Op. 50083 (U) (Sup. Ct. Suffolk County 2007).
General, non-particularized claims of privilege simply will not suffice. See, Kneisel v. QPH, Inc., 124 AD3d 729, 730 (2nd Dept. 2015) ("Here, the Hospital defendants merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached."); accord, United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473 (2nd Cir.), cert. denied, 519 U.S. 927 (1996) (general allegations of privilege which were not supported were insufficient to support a claim of privilege); Marx v. Kelly, Hart & Hallmer, P.C., 929 F.2d 8, 12 (1st Cir. 1991) (assertion of privilege must "be accompanied by sufficient information to allow the court to rule intelligently on the privilege claim."); Adams v. Sharfstein, 2012 WL 2992172, *4 (D. Md. 2012); Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 237 (W.D.NY 1998) ("In the case of a privilege, the party claiming the privilege must supply opposing counsel with sufficient information to assess the applicability of the privilege without revealing information which is privileged or protected. [citation omitted]. Mere conclusory assertions of privilege are insufficient to satisfy this burden.").
To resist the production of documents claimed to be privileged, the procedure recommended by both the New York Court of Appeals and the Appellate Division, Second Department is the creation and production, by the party asserting a claimed privilege, of a privilege log. See, In re Supboena Duces Tecum, 99 NY2d 434, 442 (2003) ("For the future, we recommend that a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review. The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege."); Stephen v. State, 117 AD3d 820, 821 (2nd Dept. 2014) ("Under the circumstances of this case, the appropriate remedy for the defendant's failure to produce an adequate privilege log is to allow the defendant to produce an adequate privilege log and, thereafter, for the Court of Claims to review in camera the allegedly privileged documents, along with the privilege log."); Batra v. Wolf, 32 Misc 3d 456, 460 (Sup. Ct. New York County 2010) ("[Defendants] failed to support their boilerplate claim of privilege either in their opposition or at oral argument, by their attorney's supposition that the emails, to my knowledge, were sent by in-house counsel.'"; court directed counsel to prepare a privilege log and scheduled an in camera inspection; italics in the original); Vozzo ex rel. Vozzo v. Cheruku, 2009 WL 1522167, 2009 NY Slip Op. 51067 (U) (Sup. Ct. Kings County 2009) (defendants' counsel argued that they were not required to [*2]prepare a privilege log since such preparation is not obligatory, but "recommended"; court ordered the creation and production of a privilege log).
Without the production of a privilege log in the present setting, the Court is walking into a web for the unwary. Should this Court order production of all documents immediately to plaintiffs' counsel, based upon the insurer's counsel's failure to provide the log requested by Chambers' staff, and should among the 2,000 documents be buried even one document that would be clearly privileged, such as under the attorney-client doctrine, then insurer's counsel will likely appeal this Court's decision based on plain error.
Thus, the better course, is the direction by this Court to prepare and produce a privilege log that identifies the documents claimed to be privileged, specifies the nature of the contents of the documents sought to be protected and who prepared the records, together with the complete set of documents appropriately Bates-stamped for easy identification, together with any supporting memorandum of law.
Concerning the Bates-stamping, it is not responsible for counsel to produce literally hundreds or, as in this case, thousands of documents, without consecutively numbering the papers produced for ready identification. For the insurer's counsel to resist disclosure, under a blanket claim of privilege, without any specifics, and while handing the Court thousands of pages without Bates-stamping, is not only irresponsible, it is plainly indicative of audacious gall. In other words, for counsel to try to sustain such conduct is not only offensive, it is plain chutzpah.
The Court, therefore, for the reasons heretofore stated, directs and orders defense counsel to produce a privilege log in the manner stated above, along with the set of documents previously provided but also containing a conspicuous Bates-stamped number on each page for ready identification, so as to be received by Chambers no later than September 17, 2015, at 3:00 P.M., together with any supporting memorandum of law, if so advised, for an camera review to be held on October 9, 2015, at 10:00 A.M. Should defense counsel decide to submit a supporting memorandum of law, plaintiff may prepare, if so advised, an opposing memorandum of law so as to be received by Chambers no later than Oct. 7, 2015, at 3:00 P.M.
The Court further directs and orders the Clerk of this Court to mail a copy of this decision to all counsel.
The foregoing constitutes the decision, opinion, and order of the Court.
______________________________Hon. Martin E. Ritholtz
Justice, Supreme Court, Queens County
Dated:August 5, 2015
Jamaica, New York
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