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Robert SMYTH, Plaintiff, v. CITY OF NEW YORK, New York City Department of Citywide Administrative Services, Riccardo Carrone, Edward O'Donnell, Defendants.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72 were read on this motion to/for ORDER OF PROTECTION.
Defendants, City of New York and Department of Citywide Administrative Services (DCAS) (collectively, the City Defendants), move pursuant to CPLR 3103(a), for a protective order precluding the deposition of the City Defendants’ Acting General Counsel Sanford Cohen. Plaintiff, Robert Smyth, cross-moves for an order compelling answers to deposition questions posed: (1) to deponent Kevin Williams, question on page 72, line 22, and question on page 64, line 188; (2) to deponent Shameka Boyer-Overton, question on page 42, line 8, question on page 50, line 25, and question on page 53, line 6; and (3) to deponent John Boughner, question on page 35, lines 3-10, question on page 15, line 10, and question on page 16, line 1.
In this employment discrimination action, plaintiff asserts a claim under the New York City Human Rights Law for alleged discrimination based on his disability, age, and perceived sexual orientation, and alleges that he was subject to retaliation for filing grievances through his union. On October 16, 2020, plaintiff served the City Defendants with notices of deposition for, among others, its Acting General Counsel Sanford Cohen (GC Cohen). The City Defendants seek a protective order precluding the deposition on the ground that he had no personal involvement in plaintiff's application file or in the decision to terminate his employment, the communications are protected by the attorney-client privilege, and any information about the investigation and termination are available from other City employees who have been made available for deposition. Plaintiff contends that GC Cohen actively participated in the investigation and that participation led the City Defendants’ investigators to alter their findings, and no fact witnesses have been permitted to testify regarding GC Cohen's conversations with them.
On February 11, 2013, DCAS appointed plaintiff to the position of Stationary Engineer (NYSCEF Doc. No. 2, complaint, ¶ 2). Previously, for six months in 2005, and then from 2007 to 2011, plaintiff was employed as a Stationary Engineer with the New York City Department of Parks (id.).
On July 29, 2015, the Fire Department of the City of New York (FDNY) and DCAS personnel responded to a fire alarm at plaintiff's work location. The FDNY and DCAS were unable to locate plaintiff on the premises despite the fact that he was the Stationary Engineer on duty at the time of the alarm (NYSCEF Doc. No. 40 at 1). Plaintiff also did not answer numerous phone calls made to his phone by DCAS personnel, and did not return to the premises until one hour later (id.). According to DCAS personnel, plaintiff's gait was unsteady and he seemed disoriented (id.). Plaintiff claimed that Senior Stationary Engineer Rodney Rampersaud ordered him to have a key copied for the building's side door, but Rampersaud denied requesting that or giving plaintiff permission to leave the premises (id.). According to DCAS, this was not the first time that plaintiff had left the premises during his watch (id. at 2).
In August and September 2015, DCAS commenced an investigation into the incident and into plaintiff's background and DCAS application (NYSCEF Doc. Nos. 41 and 42). In this investigation, DCAS discovered that when plaintiff left his employment with the City Department of Parks, disciplinary charges had been pending against him for insubordinate behavior and job abandonment (NYSCEF Doc. No. 43). Plaintiff settled the charges with the Department of Parks, and as part of the settlement, agreed to resign in lieu of termination (id.). On plaintiff's application for employment with DCAS in 2013, known as a CPD-B, in response to questions about whether he ever resigned from a job to avoid termination or disciplinary action or while disciplinary action was pending against him, plaintiff answered “no” (id.).
In October 2015, DCAS Administrative Investigator John Boughner (Boughner) sought to meet with plaintiff to discuss his CPD-B, but plaintiff was not available (NYSCEF Doc. No. 44). Boughner then informed plaintiff, through his union representative, that he was going to discuss the case with DCAS Executive Director of Investigations Kevin Williams (Williams), and after such discussion, Williams instructed Boughner to place plaintiff's investigation on hold until they discussed the matter with DCAS's Human Resources Department (id.).
On November 24, 2015, DCAS Director of Discipline Eric Hicks issued plaintiff disciplinary charges for insubordination and repeated abandonment of his job site between February 2015 and July 2015 (NYSCEF Doc. No. 45, statement of charges).
By email dated November 25, 2015, GC Cohen asked to speak with Williams regarding the investigation into plaintiff's application (NYSCEF Doc. No. 46). On November 27, 2015, GC Cohen spoke with Williams (id.). According to the City Defendants, GC Cohen provided legal advice to Williams regarding whether, pursuant to the settlement stipulation between plaintiff and the Department of Parks, plaintiff was required to notify DCAS that he resigned from his prior City employment with disciplinary charges pending, and whether plaintiff made false statements on his CPD-B (NYSCEF Doc. No. 47, affidavit of Sanford Cohen, dated December 23, 2020 [Cohen aff], ¶ 10).
By email dated November 30, 2015, Williams informed Deputy Commissioner of Administration Shameka Boyer-Overton that he spoke with GC Cohen and that they would “proceed on [plaintiff] accordingly” (NYSCEF Doc. No. 46).
On January 6, 2016, Williams issued a Notification of Proposed Personnel Action (NOPPA) to plaintiff advising him that if he did not resolve the problem noted, he would be found not qualified for the position of Stationary Engineer, and that his employment would be terminated (NYSCEF Doc. No. 48). Plaintiff did not respond to that NOPPA (NYSCEF Doc. No. 49). On January 26, 2016, DCAS issued a Notice of Personnel Action to plaintiff, notifying him of its decision that he was not qualified for his position as Stationary Engineer due to reasons of character, fraud, falsifying official City employment documents, and omitting pertinent facts and background (NYSCEF Doc. No. 50). On February 3, 2016, DCAS terminated plaintiff's employment (NYSCEF Doc. No. 2, compl, ¶ 29).
On August 15, 2017, plaintiff commenced this employment discrimination action, asserting a claim under the New York City Human Rights Law, for discrimination based on age, disability (plaintiff has a back injury previously incurred during work), and perceived sexual orientation, and for retaliation for his discrimination/harassment complaints (NYSCEF Doc. No. 2, compl).
On October 16, 2020, plaintiff served the City Defendants with notices of deposition for the following DCAS employees: (1) Executive Director of Investigations Kevin Williams; (2) Assistant Investigator John Boughner; (3) Deputy Commissioner Shameka Boyer-Overton; (4) Community Coordinator Tinamarie Cintron; and (4) GC Cohen (NYSCEF Doc. No. 51). On December 14, 2020, the City Defendants formally objected to the deposition of GC Cohen (NYSCEF Doc. No. 52). On December 17, 2020, Williams and Boyer-Overton were deposed, and, on December 30, 2020, Boughner and Cintron were deposed.
In moving for a protective order, the City Defendants urge that the testimony by GC Cohen is protected by the attorney-client privilege. They assert that GC Cohen was not personally involved in the investigation, and was acting solely as legal counsel to DCAS. They contend that there are three documents that plaintiff relies upon in seeking this deposition. First, he relies on a November 25, 2015 email from GC Cohen to Williams and subsequent conversations between them in which, the City Defendants contend, GC Cohen was providing protected legal advice as to the basis of plaintiff's termination.
Second, plaintiff relies on a November 18, 2015 conversation between GC Cohen and Boyer-Overton, in which, the City Defendants assert, GC Cohen provided legal advice covered by the attorney-client privilege. They assert that the privilege was not waived by Boyer-Overton's affidavit submitted in a federal district court action, entitled Perez v City of New York (16-CV-7050 [PGG] [BCM] [SD NY]) (the Perez action). According to defendants, Perez was similarly terminated on the basis of false statements on his DCAS application after their investigation uncovered a prior City employment termination while disciplinary charges were pending. In Boyer-Overton's affidavit in Perez, she states:
“On or about November 18, 2015, I met with DCAS Deputy General Counsel Sanford Cohen to discuss the potential consequences for their continued employment if Perez and Smyth had falsified their CPD-Bs. Mr. Cohen advised me that if they had falsified their CPD-Bs, they could be found not qualified for appointment retroactively. He advised me to gather information about Perez's separation from the Sanitation Department and about Smyth's separation from the Parks Department. If the information received from those inquiries indicated that either of them had falsified his CPD-B, the background investigation unit headed by Kevin Williams would conduct full investigations”
(NYSCEF Doc. No. 47, Cohen aff, Exhibit 1, Declaration of Shameka Boyer-Overton, ¶ 16).
The City Defendants urge that while this affidavit admits that the conversation occurred, it does not address or waive the protection of GC Cohen's legal advice as to whether plaintiff's underlying stipulation of settlement with the Department of Parks precluded him from answering “yes” as to whether he resigned in lieu of termination and/or disciplinary charges. Nor does it address or waive the privilege regarding Boyer-Overton and GC Cohen's discussions of the potential legal ramifications if DCAS were to find that he made a false statement on his CPD-B.
Finally, they urge that plaintiff relies on a January 26, 2016 email between GC Cohen and Williams in which GC Cohen asks if plaintiff responded to the NOPPA (NYSCEF Doc. No. 49) to claim that GC Cohen's testimony is material and necessary to the action. As with the two other communications, the City Defendants contend that the information plaintiff seeks is available from the DCAS employees that he has already deposed without intruding on the defendants’ attorney-client privilege. They further contend that GC Cohen did not participate in the investigation and did not make any determination to decertify or terminate plaintiff.
In opposition and in support of his cross motion to compel answers to certain deposition questions posed to Boyer-Overton, Williams, and Boughner, plaintiff contends that GC Cohen improperly interfered in the second background investigation into plaintiff's employment to ensure a pre-determined outcome of his termination as retaliation for his complaints. He asserts that GC Cohen “has a history of interference with investigations regarding employees who are actually or perceived as homosexuals,” citing the Perez action (NYSCEF Doc. No. 57, plaintiff's memorandum of law [plaintiff's memo] at 12). Plaintiff argues that GC Cohen was actively involved in the second background investigation, since Williams and Boughner had previously determined that plaintiff's failure to disclose his Parks Department disciplinary history would not lead to plaintiff being found not qualified, but that after conversations with GC Cohen, they both changed their conclusion. Thus, he asserts that GC Cohen acted as an investigator, interjecting himself into the substance of the investigations. Plaintiff also points to the fact that GC Cohen contacted Williams and Boughner, and that they did not solicit GC Cohen as their lawyer to answer legal questions. Plaintiff contends that the City Defendants have not permitted any of their witnesses to testify on exactly how and why the two investigators assigned to the second background investigation reversed their conclusion about the effect of the settlement stipulation after talking to GC Cohen.
As to witness Boyer-Overton, plaintiff urges that she waived any attorney-client privilege when she filed her affidavit in the Perez action. He alleges that she publicly disclosed her substantive conversations with GC Cohen, but that the City Defendants refused to permit her to answer deposition questions about GC Cohen's instructions to her and the investigation unit, or her questions to GC Cohen, and about whether GC Cohen “instructed [her] how to set up Mr. Smyth so that DCAS could justify his termination” (NYSCEF Doc. No. 57, plaintiff's memo at 20). Regarding Williams, plaintiff contends that he waived any privilege in his November 30, 2015 email where he stated to Boyer-Overton: “I wanted to let you know that I spoke to [GC Cohen] on Friday and we will proceed on Smythe [sic] accordingly” (NYSCEF Doc. No. 57, plaintiff's memo at 13; see also NYSCEF Doc. No. 65). He maintains that Williams should be directed to answer questions about what GC Cohen told him and whether GC Cohen ever instructed him not to take notes on discussions with him. As to Boughner, plaintiff contends that he should be directed to answer questions about what Michael Reyes, another corporation counsel in the City's Law Department, told him about the stipulation of settlement.
On reply, the City Defendants urge that plaintiff acknowledges that Boyer-Overton testified at her deposition that GC Cohen provided legal advice to Williams, Boughner and herself regarding the legal interpretation of the settlement stipulation, and its applicability to whether plaintiff omitted pertinent facts in his CPD-B application (NYSCEF Doc. No. 62, deposition of Shameka Boyer-Overton, dated December 17, 2020 [Boyer-Overton tr] at 27-28). They point out that Williams testified that GC Cohen was not involved in the investigation, and that his only communications with Cohen were solely for the purpose of obtaining legal advice as to the stipulation and its legal ramifications (NYSCEF Doc. No. 58, deposition of Kevin Williams, dated December 17, 2020 [Williams tr] at 16, 18). In addition, Boughner testified that he only spoke to Reyes, and that was to obtain clarification about the stipulation because he was “not an attorney,” and whether that stipulation could be considered by DCAS in relationship to plaintiff (NYSCEF Doc. No. 67, deposition of John Boughner, dated December 30, 2020 [Boughner tr] at 16-17). The nature and substance of these communications are protected, and the protection is sufficiently narrowly construed. On the issue of waiver, defendants again urge that Boyer-Overton only admitted that the conversation occurred and did not disclose the substantive legal advice offered by GC Cohen after she gathered information about plaintiff's separation from the Parks Department (see NYSCEF Doc. No. 69, defendants’ reply memorandum of law at 7).
The motion for a protective order is granted, and the cross motion to compel the further depositions of Williams, Boughner, and Boyer-Overton is granted only to the extent of directing Boyer-Overton to be further deposed to answer the question posed to her on page 50, line 25 to page 51, lines 1-3, as discussed below (NYSCEF Doc. No. 62, Boyer-Overton tr at 50-51).
Privilege and Deposition of GC Cohen
Under the CPLR, parties are obligated to fully disclose “all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (CPLR 3101 [a]). Whether matter is material and necessary is to be interpreted liberally based on a test of usefulness and reason (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376 ; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729, 730-731 [2d Dept 2011]). Parties are not required to provide unlimited disclosure, and the court, in its sound discretion, may issue a protective order “ ‘denying, limiting, conditioning or regulating the use of any disclosure device’ to ‘prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts’ (CPLR 3103 [a])” (Giordano v New Rochelle Municipal Hous. Auth., 84 AD3d at 731; see Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2d Dept 2007]).
When a party seeks a protective order based on the attorney-client privilege, they bear the burden of establishing the right to protection, which must be narrowly construed, and the application must be consistent with the purposes of such immunity (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377; Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d at 404). The proponent must establish (1) an attorney-client relationship, pursuant to which information was communicated between the attorney and the client, (2) that the information was intended to be and was kept confidential, and (3) that it was made in order to assist in providing or obtaining legal advice or services (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377-378; People v Mitchell, 58 NY2d 368, 373 ).
The privilege “applies to confidential communications between clients and their attorneys made ‘in the course of professional employment’ ” (New York Times Newspaper Div. of NY Times Co. v Lehrer McGovern Bovis, 300 AD2d 169, 171 [1st Dept 2002], quoting CPLR 4503 [a]). These communications are “absolutely immune from disclosure” (id.; CPLR 3101 [b]). It applies to communications from the client to the attorney, or from the attorney to the client, when the communication is made for the purpose of providing or obtaining legal advice (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377; Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d 588, 592  [“privilege ․ plainly extends ․ to the attorney's own communications to the client”]). The attorney-client communication must be predominantly or primarily of a legal character (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 378; Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d at 594), and not every communication between them is protected (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005] [insurance company attorneys’ communications not privileged because the attorneys were acting as claims investigators]; Deutsche Bank AG v Sebastian Holdings, Inc., 2019 NY Slip Op 30062[U] at * 5 [Sup Ct, NY County 2019]). Only the communication is protected, not the facts underlying it (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377). The client can testify as to what he or she knows about a subject, but cannot be required to testify about communications with his or her attorney about the same subject (Deutsche Bank AG v Sebastian Holdings, Inc., 2019 NY Slip Op 30062[U] at * 7).
If the client shares the attorney-client communication with a third party, the privilege is waived because that means that confidentiality has not been kept and is no longer intended (New York Times Newspaper Div. of NY Times Co. v Lehrer McGovern Bovis, 300 AD2d at 172; see also In re Horowitz, 482 F2d 72, 81 [2d Cir], cert denied 414 US 867 ). The proponent of the privilege bears the burden of demonstrating that the privilege was not waived (New York Times Newspaper Div. of NY Times Co. v Lehrer McGovern Bovis, 300 AD2d at 172).
Here, plaintiff challenges whether the City Defendants’ attorney was providing legal advice about the investigation of plaintiff, or if he was acting as an investigator. The City Defendants submit GC Cohen's affidavit in which he states that “I did not participate in this investigation in any capacity” and that the “only role I played was, in my capacity as Deputy General Counsel, to provide legal advice to those DCAS employees investigating Plaintiff's application file” to show his role and that he was providing legal advice or services to his client (NYSCEF Doc. No. 47, Cohen aff, ¶¶ 8, 14). GC Cohen further attests that the purpose of his November 18, 2015 conversation with Boyer-Overton was to provide legal advice about the potential legal ramifications if (1) plaintiff had resigned from his prior job with the Parks Department in lieu of pending disciplinary charges and/or termination, and (2) plaintiff made false statements by omitting that information from his CPD-B (id., Cohen aff, ¶ 9). He further stated that the purpose of his November 25, 2015 conversation with Williams was to provide the same legal advice (id., Cohen aff, ¶ 10). It also is clear from the face of the emails of November 18 and 25, 2015 that GC Cohen's emails and communications with Williams and Boyer-Overton were for the purpose of giving legal advice as the City Defendants’ attorney. The January 26, 2016 email asking about whether plaintiff responded to the NOPPA similarly is a protected communication. This satisfies their burden on the motion.
Plaintiff fails to submit any proof that GC Cohen was acting otherwise. The cases upon which plaintiff relies are clearly distinguishable. In 305-7 W. 128th St. Corp. v Gold (178 AD2d 251 [1st Dept 1991]), the Court compelled the deposition of the defendant's attorney because she negotiated the commercial lease the plaintiff was seeking to enforce, and had firsthand knowledge of facts and circumstances surrounding the transaction (id. at 251). Here, in contrast, GC Cohen was not a negotiator or an investigator, and plaintiff presents no facts otherwise. In American Reliance Ins. Co. v National Gen. Ins. Co. (149 AD2d 554 [2d Dept 1989]), the plaintiff claimed bad faith failure to settle within policy limits, and the defendants sought to depose the plaintiff's attorney who negotiated the underlying settlement. The Court ordered the deposition, because the plaintiff affirmatively placed in issue its attorney's knowledge of the facts that might prove defendants’ bad faith (id. at 554). In the instant case, the City Defendants have not placed at issue GC Cohen's factual knowledge. Finally, in Equitable Life Assur. Socy. of U.S. v Rocanova (207 AD2d 294 [1st Dept 1994]), the Court granted a protective order, preventing the deposition of defendant insured's former attorney about the circumstances of the preparation of an affidavit for the defendant's physician.
The disclosure sought by plaintiff -- GC Cohen's deposition -- seeking to question him about his confidential communications with DCAS employees regarding the investigation into plaintiff's application, is precluded by the attorney-client privilege (see Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d at 592; Greater NY Mut. Ins. Co. v Alexander Holdings, LLC, 80 AD3d 660, 662 [2d Dept 2011] [defendant's corporate attorney who prepared a statement for defendant's employee could not be deposed; discovery precluded by attorney-client privilege]; Clark v Schuylerville Cent. School Dist., 57 AD3d 1145, 1146 [3d Dept 2008] [school district principal's confidential communications with school district attorney, from whom he sought legal advice relating to teaching staff management, were privileged]; Carone v Venator Group, 289 AD2d 185, 186 [1st Dept 2001]). Even if plaintiff could demonstrate that GC Cohen had some role in the investigation, the privilege was not waived by such participation (see Upjohn Co. v United States, 449 US 383, 389-396 ; Carone v Venator Group, 289 AD2d at 186). There is no proof that nonprivileged communication was included in this otherwise privileged communication such that part of the communication was not protected, and, in any event, that does not destroy the immunity, as plaintiff contends (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 378). The Court notes that plaintiff has already deposed the four employees of DCAS who handled the investigation into plaintiff's DCAS application. He, therefore, has had the opportunity to obtain any underlying facts as to why DCAS believed that he made false statements on his application from witnesses with direct knowledge of such facts. Plaintiff's argument that GC Cohen changed the investigators’ conclusions is unavailing. Simply because he provided legal advice which led them to change their conclusion, something lawyers regularly do with their clients, does not mean he improperly injected himself into the investigation.
With regard to the questions to Williams and Boughner about what GC Cohen advised or said to them, these answers cannot be compelled. “The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ ” (Upjohn Co. v United States, 449 US at 396 [citation omitted]). Conversely, of course, the client witnesses cannot be asked “What did your attorney say or advise you?” Thus, the questions to Williams on page 72, line 22 to page 73, lines 1-3, asking “What were you told by Mr. Cohen?” and page 74, lines 18-20, asking “Did Mr. Cohen tell you, ever instruct you not to take notes upon discussions you had with him?” are protected by the privilege and he cannot be compelled to answer them (NYSCEF Doc. No. 58, Williams tr at 72-74). Similarly, the question on page 35, line 3-10 asking Boughner “What did he [Michael Reyes, legal counsel] tell you? and on pages 15 and 16, asking about the subject matters of Boughner's conversations with GC Cohen, are asking for the substance of protected confidential conversations with his attorney (NYSCEF Doc. No. 67, Boughner tr at 15-16, 35). In addition, in questioning Boyer-Overton about Williams’ November 30, 2015 email, indicating that he spoke with GC Cohen and “will proceed on Smythe [sic] accordingly” (NYSCEF Doc. No. 65), plaintiff seeks to compel Boyer-Overton to answer the following question: “Do you know if Mr. Cohen gave [Williams] explicit instructions on what he wanted the investigations unit to do in relation to Mr. Smyth?” (NYSCEF Doc. No. 62, Boyer-Overton at 42, lines 11-14). Like the questions to Williams and Boughner, the attorney-client privilege protects such confidential communications with GC Cohen seeking or providing legal advice.
Moreover, plaintiff's attempt to narrowly confine the attorney-client privilege to confidences that were supplied to the lawyer by the client, or only to instances where the client contacts the lawyer to ask for a specific legal opinion, “is at odds with the underlying policy of encouraging open communication” and it “denies that an attorney can have any role in fact-gathering incident to the rendition of legal advice and services” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 379 [emphasis in original]). Contrary to plaintiff's contention, the fact that GC Cohen may have reached out to these DCAS employees first to provide legal advice, does not negate the privilege (see Rossi v Blue Cross & Blue Shield of Greater NY, 73 NY2d at 592 [the “privilege ․ plainly extends as well to the attorney's own communications to the client”]).
On the issue of whether Boyer-Overton waived the privilege in her affidavit in the Perez action, the burden is on the City Defendants to prove non-waiver (John Blair Communications v Reliance Capital Group, 182 AD2d 578, 579 [1st Dept 1992]). Disclosure of privileged communications generally operate as a waiver of privilege unless it is shown that the disclosure was inadvertent, that is, that the client intended to maintain confidentiality and took reasonable steps to prevent disclosure, and the party who received the communications will not suffer undue prejudice if a protective order is issued (see Oakwood Realty Corp. v HRH Constr. Corp., 51 AD3d 747, 749 [2d Dept 2008]; New York Times Newspaper Div. of New York Times Co. v Lehrer McGovern Bovis, 300 AD2d at 172). Disclosure of the mere fact of an attorney consultation is not a basis for a waiver as to the contents of that consultation (AMBAC Indem. Corp. v Bankers Trust Co., 151 Misc 2d 334, 341 [Sup Ct, NY County 1991]; Parneros v Barnes & Noble, Inc., 332 FRD 482, 500 [SD NY 2019]; accord Alcor Life Extension Foundation v Johnson, 43 Misc 3d 1225[A], 2014 NY Slip Op 50784(U), at * 8 n. 4 [Sup Ct, NY County 2014], affd 136 AD3d 464 [1st Dept 2016]).
Here, Boyer-Overton's affidavit (NYSCEF Doc. No. 47, Cohen aff, Exhibit 1) was not an inadvertent disclosure. While the City Defendants argue that the affidavit only admitted that the conversation occurred, that argument is belied by Boyer-Overton's statements therein that, in their November 18, 2015 conversation, “Mr. Cohen advised me that if [Perez and Smyth] had falsified their CPD-Bs, they could be found not qualified for appointment retroactively,” and “advised me to gather information about ․ Smyth's separation from the Parks Department” (id.). This constitutes a waiver of the privilege. The waiver, however, extends only that November 18, 2015 conversation, and to the subject of GC Cohen's advice as to the potential consequences for continued employment if Smyth had falsified his CPD-B. Thus, Boyer-Overton must answer the question posed to her on page 50, line 25 to page 51, lines 1-3 “What did you tell Mr. Cohen exactly for him to advise you of what you wrote in your affidavit?” (NYSCEF Doc. No. 62, Boyer-Overton tr at 50-51). Plaintiff's questioning may not extend to any advice GC Cohen provided to the City Defendants about the interpretation of plaintiff's stipulation of settlement with the Parks Department, his substantive legal advice or analysis of whether plaintiff actually falsified his CPD-B, or his legal advice given after DCAS gathered information about plaintiff's separation from the Parks Department, which are outside the scope of Boyer-Overton's waiver. The waiver also does not extend to plaintiff's question posed to Boyer-Overton “Mr. Cohen instructed you on how to set up Mr. Smyth so that DCAS could justify his termination, isn't that true?” (id. at 53, lines 6-8). None of those subjects was addressed in Boyer-Overton's affidavit.
Accordingly, it is hereby
ORDERED that the motion for a protective order is granted precluding plaintiff from deposing the City Defendants’ Acting General Counsel Sanford Cohen; and it is further
ORDERED that the cross motion is granted only to the extent of directing witness Shameka Boyer-Overton to appear, within 30 days of the date of entry of this decision and order, at a continued deposition and answer the question posed to her on page 50, line 25 to page 51, lines 1-3 of her December 17, 2020 deposition: “What did you tell Mr. Cohen exactly for him to advise you of what you wrote in your affidavit,” and limited to the subject of GC Cohen's advice as to the potential consequences for continued employment if Smyth had falsified his CPD-B.
Dakota D. Ramseur, J.
Response sent, thank you
Docket No: 157294/2017
Decided: April 28, 2021
Court: Supreme Court, New York County, New York.
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