IN RE: TGT (2025)

Order, Supreme Court, New York County (Andrea Masley, J.), entered April 7, 2024, which granted petitioner TGT, LLC's motion to compel respondent Hecht Partners, LLP (Hecht) to produce documents, unanimously affirmed, without costs.  Appeal by respondents Richard Meli and Joseph Meli from aforesaid order, unanimously dismissed, without costs, for lack of standing.

The court providently exercised its discretion in compelling production of communications involving Richard Meli and the entries identified on the “Entries Not Legal Advice” privilege log.  Hecht argues that Richard was necessary to Joseph's attorney-client relationship with Hecht thus abandoning its prior incorrect argument that a showing of necessity was not required.  Indeed, “statements made to the agents or employees of the attorney or client ․ retain their confidential (and therefore, privileged) character, where the presence of such third parties is deemed necessary to enable the attorney-client communication” (Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623–627, 36 N.Y.S.3d 838, 57 N.E.3d 30 [2016]).  We decline to substitute our own discretion for that of the motion court based on the new necessity argument that was never presented to the motion court.

The court properly found that no sufficient common legal interest was shown.  Hecht's engagement and associated communications in furtherance of effecting transfers of Joseph's assets to irrevocable trusts outside his control did not relate to litigation in which Richard reasonably anticipated he would become a colitigant with Joseph (see e.g. Ambac, 27 N.Y.3d at 627, 36 N.Y.S.3d 838, 57 N.E.3d 30).

We also reject the claim that the court failed to address the work product privilege for most of the entries on the privilege log.  By requiring production of the items on the narrowed log “Entries Not Legal Advice,” the court based the required production on its finding that those entries pertained to nonlegal tasks (see generally Brooklyn Union Gas Co. v. American Home Assur. Co., 23 A.D.3d 190, 190–191, 803 N.Y.S.2d 532 [1st Dept. 2005]).

Finally, Richard and Joseph Meli lack standing to appeal because they were “not aggrieved by the grant of [TGT's] motion to compel discovery, as [they] did not oppose the motion” (Moore v. Federated Dept. Stores, Inc., 94 A.D.3d 638, 639, 942 N.Y.S.2d 513 [1st Dept. 2012], appeal dismissed 19 N.Y.3d 1065, 955 N.Y.S.2d 541, 979 N.E.2d 801 [2012];  see CPLR 5511).