GOTTWALD v. [And Another Action] (2018)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 20, 2017, which denied defendant Kesha's (defendant) motion for leave to file second amended counterclaims, and order, entered November 8, 2017, which to the extent appealed from as limited by the briefs, granted, in part, plaintiffs' motion to compel production of documents and struck other documents from the record on the motion, unanimously affirmed, with costs.

Kesha's proposed amendments are palpably insufficient and devoid of merit (see MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 901 N.Y.S.2d 522 [1st Dept. 2010] ).  Her counterclaim seeking declaratory relief terminating the agreements on the ground of impossibility and impracticability of performance was speculative, contradicted by her own allegations that she had continued performing under the agreements and, as to at least one of the agreements, the impossibility was not produced by an unanticipated event that could not have been foreseen or guarded against (see Kel Kim Corp. v. Central Mkts., 70 N.Y.2d 900, 902, 524 N.Y.S.2d 384, 519 N.E.2d 295 [1987] ).  The court also properly denied Kesha leave to assert a counterclaim for declaratory relief terminating the agreements on the ground that they violate California Labor Code § 2855, as the unambiguous New York choice-of-law provisions contained in the agreements preclude the application of that California statute (see generally Ministers & Missionaries Benefit Bd. v. Snow, 26 N.Y.3d 466, 470, 45 N.E.3d 917 [2015] ).  There was no basis to invalidate the choice of law clauses (see Finucane v. Interior Constr. Corp., 264 A.D.2d 618, 620–621, 695 N.Y.S.2d 322 [1st Dept. 1999] ).

The court properly granted plaintiffs' motion to compel Kesha to produce documents.  The communications between her counsel and press agents do not reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy, and are not protected under the attorney-client privilege (see WA Rte. 9, LLC v. PAF Capital LLC, 136 A.D.3d 522, 26 N.Y.S.3d 256 [1st Dept. 2016] ).  Kesha also failed to satisfy her burden to establish that the documents sought were protected work product (see Brooklyn Union Gas Co. v. American Home Assur. Co., 23 A.D.3d 190, 191, 803 N.Y.S.2d 532 [1st Dept. 2005] ).

We have considered Kesha's remaining arguments, including that the motion court should not have stricken documents from the record on the motion, and find them unavailing.