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New York’s attorney-client privilege does not require a written request from an attorney to a client to protect a document prepared for litigation, an appellate court has ruled. The ruling in New York Times Co. v. Lehrer McGovern Bovis Inc., 2078N, shields a document inadvertently produced during discovery. The New York Appellate Division, 1st Department, unanimously reversed Justice Ira Gammerman’s denial of a motion by Parsons Main Inc., a defendant and third-party plaintiff in the suit, for a protective order prohibiting the use of a memo written by one of its employees to its counsel, Jones, Day, Reavis & Pogue. The memo explained the details of the New York Times Co.’s claim that the design of the underground piping systems for water supply, sewage and fire protection at its Queens printing plant was flawed. The memo, which had been flagged “Attorney-Client Privileged Communication/Attorney Work Product,” was inadvertently turned over to the other defendants during pretrial discovery. Justice Gammerman rejected the engineering firm’s request for a protective order against use of the document. He held that absent a written request from Parsons’ counsel that the report be prepared or an explicit statement in the report itself or its cover letter that the report was prepared pursuant to counsel’s request, the attorney-client privilege was not applicable. But the panel, in its unsigned memorandum, found the document was absolutely immune from discovery. It said Gammerman’s view was “an overly restrictive interpretation of the privilege and one that ill serves the privilege’s underlying purpose, which is to ‘foster the open dialogue between lawyer and client that is deemed essential to effective representation.’” “There is nothing in the law governing attorney-client privilege that precludes the privilege from attaching to client communications made in response to oral requests by attorneys,” the judges added. In a footnote, the appellate panel rejected as speculation Gammerman’s opinion that the report was merely an internal document attempting to figure out what a customer was complaining about “that just happened to have been sent to Parsons’ litigation counsel.” An argument by Parsons’ co-defendant, Bovis Lend Lease LMB, that the attorney-client privilege was waived when the disputed report was produced as part of Parsons’ pretrial discovery also was rejected by the 1st Department. The Supreme Court had found that the production of the report was inadvertent, the court noted, and reasonable steps had been taken to prevent disclosure. Presiding Justice Milton L. Williams and Justices Ernst H. Rosenberger, Israel Rubin, David Friedman and Luis A. Gonzalez formed the appellate panel. Lee A. Armstrong of Jones Day appeared for Parsons Main on the appeal. Marc H. Supcoff of New York-based Zetlin & De Chiara argued for Bovis Lend Lease, and Pauline E. Glaser of New York’s Morris Duffy Alonso & Faley was counsel for Pile Foundation Construction Co., a third-party defendant in the case.

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