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Supreme Court, Appellate Division, First Department, New York.

South Shore D'Lites, LLC, et al., Plaintiffs–Respondents, v. First Class Products Group, LLC, et al., Defendants–Appellants.

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Decided: December 03, 2019

Friedman, J.P., Oing, Singh, Moulton, JJ. Fox Rothschild LLP, New York (Brett A. Berman of counsel), for appellants. The Law Office of Russell D. Morris PLLC, New York (Russell D. Morris of counsel), for respondents.


Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered September 14, 2018, which granted plaintiffs' motion to compel defendants to produce an attorney-client-privileged email under the crime-fraud exception to the privilege, unanimously modified, on the law and the facts, to remand the matter for an in camera review of the email to determine whether there is probable cause to believe that the communication was made in furtherance of the alleged fraud, and otherwise affirmed, without costs.

An in camera review is needed to determine whether the subject email was sent “in furtherance” of the fraud, so as to bring the email within the crime-fraud exception to the attorney-client privilege (Fragin v. First Funds Holdings, LLC, 150 AD3d 410 [1st Dept 2017] ).