2138747 ONTARIO INC v. LEHMAN BROTHERS HOLDINGS INC (2022)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about June 29, 2021, which, to the extent appealed from as limited by the briefs, granted defendant's motion to compel disclosure of documents and communications between plaintiff and its current and former counsel relating to an assignment of a cause of action and to plaintiff's litigation strategy in a prior lawsuit, unanimously affirmed, with costs.

The court properly determined that plaintiff waived the attorney-client privilege by placing the subject matter of its attorneys’ advice at issue in this case and then by making selective disclosure of that advice (see Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 390, 577 N.Y.S.2d 841 [1st Dept. 1992];  see also Levy v. Arbor Commercial Funding, LLC, 138 A.D.3d 561, 562, 29 N.Y.S.3d 364 [1st Dept. 2016]).  While plaintiff now disavows any intention to use privileged communications and documents in the prosecution of its cause of action against defendant, it was required to use them for its malpractice claim and selectively disclosed communications (see Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth., 168 A.D.3d 569, 571–572, 92 N.Y.S.3d 248 [1st Dept. 2019];  cf.  Securitized Asset Funding 2011–2, Ltd. v. Canadian Imperial Bank of Commerce, 191 A.D.3d 486, 487, 138 N.Y.S.3d 309 [1st Dept. 2021] [privilege was not waived, since, “under the particular circumstances ․, the ․ defense and counterclaim can be fairly litigated based on other available, nonprivileged evidence including the testimony of nonlawyers”]).

We have considered plaintiff's remaining arguments and find them unavailing.