Theroux v Resnicow

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[*1] Theroux v Resnicow 2020 NY Slip Op 51489(U) Decided on December 16, 2020 Supreme Court, New York County Lebovits, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2020
Supreme Court, New York County

Justin Theroux, Plaintiff,

against

Norman Resnicow, BARBARA RESNICOW, 71 WASHINGTON PLACE OWNERS, INC., and BOARD OF DIRECTORS OF 71 WASHINGTON PLACE OWNERS, INC., Defendants.



154642/2017



Pryor Cashman LLP, New York, NY (Eric D. Sherman, Bryan T. Mohler, and Rebecca L. Matte of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 244, 245



were read on this motion forDISCOVERY.

In this ongoing quarrel between neighbors in a co-op apartment building, plaintiff, Justin Theroux, seeks to compel production of numerous personal emails that defendant Norman Resnicow sent through his work email account. Resnicow has contended that many of the emails sought are shielded from disclosure by the attorney-client and spousal privileges. Plaintiff argues on this motion that the emails are categorically foreclosed from being privileged because Resnicow sent the emails via his work email.

For the reasons below, this court disagrees with plaintiff's argument. Defendants must [*2]produce all responsive emails that they do not claim to be privileged. And defendants must produce a proper privilege log for all emails that they claim to be privileged, so that any disagreement about whether particular emails qualify for the attorney-client or spousal privilege can be resolved on a proper record. But defendants need not at this time produce all responsive emails—irrespective of claims of privilege—as plaintiff would have it.

BACKGROUND

Plaintiff occupies Apartment 2B at 71 Washington Place in Manhattan. Defendants Norman and Barbara Resnicow (defendants) are plaintiff's downstairs neighbors, living in Apartment 1A. Plaintiff and defendants do not get along, to put it mildly. They have resorted to this litigation to resolve (or at least address) their many disagreements.[FN1]

This motion arises from the fact that Norman Resnicow uses his work email account for personal matters, as well as professional ones. Plaintiff served a subpoena on Fox Horan & Camerini LLP, the law firm at which Resnicow is an equity partner. The subpoena seeks emails sent by Resnicow through his Fox Horan email account on a number of topics related to the parties' conflicts. Fox Horan responded by stating that it had turned over all potentially responsive emails to the Resnicows' counsel (Peter M. Levine, Esq.), and would defer to him about whether to assert any privilege objections to the subpoena.

Defendants produced emails to plaintiff in response to the subpoena. Plaintiff was dissatisfied with that production, believing it both to have withheld improperly some emails on grounds of relevance and to have withheld improperly other emails based on a meritless assertion of the attorney-client and spousal privileges. Plaintiff, defendants, and Fox Horan, despite numerous discussions among them, were unable to resolve this disagreement over the appropriate scope of the Resnicow-email production.

Plaintiff now moves to compel production of all responsive emails sent by Norman Resnicow through his work email account.



DISCUSSION

I. The Branch of Plaintiff's Motion to Compel Seeking Documents Not Subject to a Claim of Attorney-Client or Spousal Privilege

The recipient of a document subpoena must state any objection to the subpoena's demands within 20 days of service. (See CPLR 3122 [a].) It is undisputed that Fox Horan neither objected nor moved for a protective order within 20 days of service of the subpoena at issue here.

Plaintiff contends that absent a timely objection or motion for protective order, Fox Horan has waived all objections to the subpoena except (i) that the subpoena seeks privileged material; and (ii) that one or more demands in the subpoena are palpably improper. Defendants' papers opposing the motion to compel do not meaningfully contest this point.

This court concludes that defendant must produce all responsive emails from Norman Resnicow's Fox Horan email account as to which defendants are not claiming attorney-client or spousal privilege—whether or not defendants view those responsive emails as irrelevant to plaintiff's claims. For clarity, this production obligation includes documents that defendants believe to be attorney work product under CPLR 3101 (c) or documents prepared in anticipation of litigation within the meaning of CPLR 3101 (d) (2).[FN2] (See Anonymous v High Sch. For Env. Studies, 32 AD3d 353, 358-359 [1st Dept 2006] [holding that the privilege-related exception to the waiver-by-untimely-objection rule is limited to documents that CPLR 3101 [b] shields from production.)

Defendants admittedly did not waive their right to object to discovery requests as palpably improper or seeking information that is clearly private or sensitive (such as tax returns or credit-card statements). (See Aetna Ins. Co. v Mirisola, 167 AD2d 270, 271 [1st Dept 1990].) On this motion, though, defendants' opposition suggests at most that one item of the subpoena—seeking "[a]ll communications concerning the Action" (NYSCEF No. 212 at 10)—is improper as overly broad (see NYSCEF No. 239 at 16-17). On that point, this court disagrees with defendants. Although this request is "framed in the broadest of terms, the documents sought relate to a specific subject matter and are therefore sufficiently identifiable to satisfy the requirements of CPLR 3120(a)." (Zurich Ins. Co. v State Farm Mut. Auto. Ins. Co., 137 AD2d 401, 402 [1st Dept 1988].) Any remaining non-privileged, but withheld, emails from Norman Resnicow's Fox Horan email that concern this action must be produced as well.



II. The Branch of Plaintiff's Motion to Compel Seeking Documents Claimed to be Shielded by the Attorney-Client or Spousal Privilege

Plaintiff also seeks to compel production of emails withheld by defendants on the ground of attorney-client or spousal privilege.[FN3] When a party is seeking disclosure of materials claimed to be privileged, the party claiming privilege bears the burden of satisfying each element of the [*3]privilege. (See John Blair Communications, Inc. v Reliance Capital Grp., L.P., 182 AD2d 578, 579 [1st Dept 1992].) Plaintiff's argument on this motion is not so much that defendants have not fully met their burden to show that these privileges apply, but that they necessarily cannot meet that burden.

The attorney-client and spousal privileges apply only to confidential communications. (See Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980] [attorney-client privilege]; CPLR 4502 [b] [spousal privilege].) Plaintiff asserts that because Resnicow sent the emails from his Fox Horan email account, none of the emails could have been confidential—and therefore that none of them could have been privileged. The question for the court on this motion is thus whether the attorney-client and spousal privileges are categorically inapplicable to Resnicow's emails. This court does not—and on the present record, cannot—determine here whether any particular email otherwise satisfies each element of the attorney-client or spousal privileges.

Answering the general privilege question here entails applying the test set out in Matter of Asia Global Crossing, Ltd. (322 BR 247 [Bankr SD NY 2005]). (See Perenboom v Marvel Entertainment, LLC, 148 AD3d 531, 531-532 [1st Dept 2017] [endorsing and applying this test].) The Asia Global Crossing test has four factors: (i) whether the employer bans personal use of work computers and email accounts; (ii) whether the employer monitors the use of the employee's computer or e-mail; (iii) whether third parties (such as other staff of the employer) may access the employee's work computer or work email; and (iv) whether the employer notified the employee of its computer use and monitoring policies (or whether the employee was otherwise aware of those policies). (See Matter of Asia Global Crossing, 322 BR at 257.)

Under the Asia Global Crossing test, this court must consider Fox Horan's internal policy, if any, governing personal use of firm computers and email accounts. Fox Horan has produced what it represents to be the firm's computer/email policy, which is included in a general firm policy manual. The parties' respective arguments rest on their differing interpretations of this document.[FN4]

Plaintiff points to the Appellate Division's decisions in Perenboom and Miller v Zara USA, Inc. (151 AD3d 462, 463 [1st Dept 2017]). In those cases, the First Department held that under the Asia Global Crossing test, the attorney-client and spousal privileges did not apply. Here, it is essentially undisputed that the substance of Fox Horan's computer/email policy is similar in many significant respects—not all, but many—to the policies in Perenboom and Miller. Plaintiff contends, therefore, that Norman Resnicow's emails could not have been [*4]privileged, either.

In response, defendants do not contest plaintiff's interpretation of the substance of Fox Horan's computer/email policy, or plaintiff's reading of Perenboom and Miller. Instead, defendants argue that Fox Horan's email policy (like most of the policy manual as a whole) is intended to govern the conduct of non-attorney staff—not equity partners like Norman Resnicow. This court finds defendant's argument persuasive.

The beginning of the computer/email section of the Fox Horan policy manual states an expectation that Fox Horan "employees" will adhere to the firm's policy on computer and email use. It would be odd to refer to an equity partner—a part-owner of the firm—as merely an employee. Similarly, one aspect of the computer/email policy directs the reader to contact a firm partner with any questions about that aspect of the policy, thereby suggesting that readers are not themselves firm partners. And the policy provides that those subject to it are required to sign an acknowledgement form as a condition of accepting and continuing employment at Fox Horan. This again would be an unusual condition to impose on the firm's partnership, as opposed to its non-attorney staff.

As plaintiff points out, not all of the policy manual is directed only to non-attorney firm staff. (See NYSCEF No. 229 at 14; NYSCEF No. 244 at 3.) But the computer/email policy does not itself indicate that it applies to partners, unlike other policies in the manual that specifically state they are addressed to (or include) firm partners or attorneys. And in several instances, policies that, from context, apply to everyone at the firm are phrased in terms of firm "personnel" rather than "employees." Additionally, defendants' motion papers include an affirmation from another equity partner at Fox Horan. The affirmation represents that it is the understanding of Fox Horan partners that they are not governed by the email policy on which plaintiff relies, and that partners maintain full control over their own individual emails.[FN5] (See NYSCEF No. 232 at ¶¶ 8, 11-13.)

This is not to say that defendants are inarguably correct that Fox Horan's computer/email policy does not apply to equity partners like Norman Resnicow—in part because that policy (and the policy manual more broadly), is not unequivocal about who it applies to. But this court agrees with defendants that there are good reasons to think the computer/email policy does not apply to Resnicow.

Additionally, the manual's very lack of clarity about its applicability cuts in Resnicow's favor. That is, the fourth Asia Global Crossing factor is whether the individual had actual or constructive notice of the company's email policy. (See Perenboom, 148 AD3d at 532; Asia [*5]Global Crossing, 322 BR at 257-258.) That the text of Fox Horan's computer/email policy can be at least reasonably read as inapplicable to Resnicow—and that Fox Horan partners apparently believe that the policy does not apply to them—suggests Resnicow was not aware of the possibility that emails from his firm account would be exposed to the view of third parties. That lack of awareness would, in turn, weaken plaintiff's argument that Resnicow relinquished the confidentiality of his email messages for privilege purposes by sending them over a firm email account. (See Stengart v Loving Care Agency, Inc., 201 NJ 300, 322-323 [NJ 2010] [finding attorney-client privilege attached where employee did not reasonably anticipate that employer would have the right and the ability to read emails sent on a company laptop].)

This court concludes that under the circumstances of this case, Norman Resnicow's emails are not categorically foreclosed from being privileged due to being sent through Resnicow's Fox Horan email account.[FN6] Rather, whether the emails are shielded by attorney-client or spousal privilege must be determined individually based on each email's particular contents and recipient(s).

Accordingly, for the foregoing reasons it is hereby

ORDERED that plaintiff's motion to compel is granted to the following extent:

(i) Defendants must within 45 days produce all emails sent by Norman Resnicow on his Fox Horan email account that are responsive to the demands in the subpoena served on Fox Horan, have not yet been produced, and are not claimed to be shielded by the attorney-client or spousal privileges; and

(ii) Defendants must within 45 days produce a privilege log as to all responsive emails that defendants have withheld on the ground of the attorney-client or spousal privileges, and that privilege log also shall include (and specifically identify) emails that this court previously held to be privileged in its orders entered on September 30, 2020, and October 20, 2020;

and it is further

ORDERED that plaintiff's motion to compel is otherwise denied.



DATE 12/16/2020 Footnotes

Footnote 1:See e.g. Theroux v Resnicow (2019 NY Slip Op. 31819[U] [Sup Ct, NY County June 25, 2019], affd as modified 187 AD3d 654 [1st Dept 2020]); Theroux v Resnicow (2019 WL 3526262 [Sup Ct, NY County July 29, 2019]).

Footnote 2:In view of the representations made in defendants' opposition papers about how Norman Resnicow's emails were collected by Fox Horan IT staff and turned over to defendants' counsel (see NYSCEF No. 232 at ¶¶ 14-15), the court is skeptical of plaintiff's additional argument that the collection process itself caused defendants to waive work-product protections over those emails (see NYSCEF No. 228 at 16 n 6, 18; NYSCEF No. 244 at 12).

Footnote 3:This court previously resolved a dispute between the parties about whether defendants properly withheld certain documents under the spousal privilege. (See Theroux v. Resnicow, 2020 NY Slip Op 51142[U] [Sup Ct, NY County, Sept. 30, 2020]; see also Supplemental Order, NYSCEF No. 326 [Oct. 20, 2020].) The parties have not, however, suggested to the court that its prior ruling fully addressed all documents claimed on this motion to be shielded by spousal privilege.

Footnote 4:The Fox Horan policy manual was produced to plaintiff under a confidentiality agreement. Given the manual's confidential nature, the parties redacted their discussions of its terms (and omitted the manual itself) in their public filings on NYSCEF. They provided unredacted papers and a full copy of the manual to this court under separate cover for the court's in camera review. The court's discussion of the policy manual in this decision, although based on the court's close reading of the manual and the parties' unredacted filings, is therefore cast in relatively general terms.

Footnote 5:Although this court has no reason to doubt the candor or accuracy of this affirmation, the court is also somewhat reluctant as a general matter to afford dispositive weight to representations prepared in the middle of litigation about unwritten company policy. That said, less-than-dispositive weight does not mean no weight. And as noted above, the representations made here about Fox Horan's email policy do not conflict with the text of the policy manual itself.

Footnote 6:Nor was any privilege shielding these emails waived by the manner in which the emails were collected by Fox Horan IT staff and provided to defendants' counsel. (See supra at note 2.)