GOTTWALD v. GERAGOS (2022)

Order, Supreme Court, New York County (Shawn Kelly, J.), entered October 27, 2021, which, to the extent appealed from as limited by the briefs, granted the motion of plaintiff Lukasz Gottwald seeking disclosure of certain documents, unanimously affirmed, without costs.

The motion court, following an in camera review, providently exercised its discretion in directing various communications to be produced by defendants to Gottwald.  Defendants’ internal correspondence concerning the Tweet at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged (see CPLR 3101[c];  Gottwald v. Sebert, 172 A.D.3d 445, 445, 99 N.Y.S.3d 295 [1st Dept. 2019]).  The emails between Geragos and an attorney representing a third party are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendants (see CPLR 4503[a];  Matter of Priest v. Hennessy, 51 N.Y.2d 62, 70, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980];  Ford v. Rector, Church–Wardens, Vestrymen of Trinity Church in City of New York, 111 A.D.3d 572, 574, 975 N.Y.S.2d 408 [1st Dept. 2013]).  Similarly, correspondence between the public relations manager for the musician Kesha, former client of defendants, and defendants was not in furtherance of either parties’ legal positions but in response to a disagreement over a Tweet.  They cannot reasonably be characterized as confidential communications made for the purposes of legal advice.  Lastly, defendants’ communications with their public relations firm, which do not “reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy,” are not protected under the attorney-client privilege (see Gottwald v. Sebert, 161 A.D.3d 679, 680, 79 N.Y.S.3d 7 [1st Dept. 2018];  WA Rte. 9, LLC v. PAF Capital LLC, 136 A.D.3d 522, 523, 26 N.Y.S.3d 256 [1st Dept. 2016]).