HOMAPOUR 3M LLC v. LLC (2022)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about May 11, 2022, which granted defendants’ notice of exception to a Special Referee's report and ordered that certain meeting notes were protected from disclosure by the attorney-client privilege, unanimously affirmed, with costs.

Following its in camera review, Supreme Court providently exercised its broad discretion in finding that notes of a meeting between defendant Mark Harounian and his divorce counsel were privileged even though they were created in the known presence of a third party — namely, nonparty Lennie Estipular, Harounian's long-term employee and personal assistant (see Horizon Asset Mgt., Inc. v. Duffy, 82 A.D.3d 442, 443, 918 N.Y.S.2d 85 [1st Dept. 2011]).  An agency agreement, prepared by Harounian's divorce counsel, designated Estipular as Harounian's agent in connection with the divorce proceeding, specifically stating that Estipular's activities were undertaken at counsel's direction and were intended to maintain and preserve privilege.

Contrary to plaintiff's assertion that Estipular could not have been Harounian's agent at the meeting between him and his counsel because she was not necessary to the transmission of legal advice, Estipular was, in fact, facilitating attorney-client communications by recording notes of the meeting, because her doing so allowed Harounian to listen rather than write.  Therefore, the agency exception applies, and the privilege was not waived by Estipular's presence (see Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 624, 36 N.Y.S.3d 838, 57 N.E.3d 30 [2016];  Robert V. Straus Prods., Inc. v. Pollard, 289 A.D.2d 130, 131, 734 N.Y.S.2d 170 [1st Dept. 2001]).