Supreme Court of New York, Appellate Division, First Department, December 2, 2021
We previously reported on a dispute concerning the discoverability of a defendant’s redacted, as well as unredacted memorandum from the defendant’s in-house counsel to its president. In 2016, a New York trial court held that privilege was waived by the defendant as to both the redacted and unredacted memo. In 2017, the New York Appellate Division, First Department, modified the trial court’s decision. They agreed that privilege was waived as to redacted memo, but did not agree that the defendant waived attorney-client privilege as to the unredacted memo as the defendant had continued to object to its use.
In 2020, a New York trial court denied the defendant’s motion to seal certain documents. The defendant subsequently appealed this decision. Recently, the Appellate Division affirmed the trial court’s decision. The Appellate Division considered the arguments set forth in the motion to seal to be similar to the previously argued privilege issue. As such, the Appellate Division deemed the argument to be barred by collateral estoppel. Further, the defendant did not show that there was good cause to seal the records regarding the redacted memo. Nonetheless, the Appellate Division also noted that the unredacted memo should be sealed as it was previously deemed to be privileged by the court.