BDO USA LLP v. FRANZ (2022)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about March 14, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to compel production of certain videotaped interviews, unanimously affirmed, without costs.

The motion court providently exercised its discretion in finding that the communications between defendants and counsel for plaintiff BDO were not protected by attorney-client privilege or the attorney work product doctrine, as the interviews that BDO's counsel conducted with defendants before the commencement of this action do not constitute the type of communications generally protected against compelled disclosure (see Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 376-377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991]). Under the circumstances presented here, BDO, the corporate client, could not have had a reasonable expectation that the interviews, which were purportedly conducted as part of an internal investigation into a former BDO executive, would be confidential, as defendants had already tendered their resignations at the time of the interviews (see Stock v. Schnader Harrison Segal & Lewis LLP, 142 A.D.3d 210, 225-226, 35 N.Y.S.3d 31[1st Dept. 2016] cf. Upjohn Co. v. United States, 449 U.S. 383, 397, 101 S.Ct. 677, 66 L.Ed.2d 584 [1981]). Moreover, the corporate employees who provided statements to BDO's counsel are now defendants in this action, and the interviews were central to the facts underlying the complaint (see Priest v. Hennessy, 51 N.Y.2d 62, 69, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980]; see People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183 [1989]).

In addition, the questions posed by BDO's counsel at the interviews are not protected as attorney work product because those questions are not uniquely the product of a lawyer's learning and professional skills (see 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], citing ACWOO Intl. Steel Corp. v. Frenkel & Co., 165 A.D.2d 752, 753, 564 N.Y.S.2d 40 [1990]). As for BDO's claim that the interviews were conducted by counsel in preparation for litigation, defendants have shown a substantial need for the videotapes in preparation of their case, as those tapes refer to the materials that defendants had turned over to BDO before their departure from the company. In addition, defendants have no ability to recreate the videotapes (see Kane v Her-Pet Refrig., Inc., 181 A.D.2d 257, 266, 587 N.Y.S.2d 339 [2d Dept. 1992]).