ESTATE OF ADRIENNE BONO, Deceased

ESTATE OF ADRIENNE BONO, Deceased (09/1709) — In this contested probate proceeding, by so-ordered stipulation dated February 26, 2015, all parties agreed that two separate motions by the objectant Andrew Reina, one to vacate the note of issue and one to compel the production of documents, were denied without prejudice and, instead, the preliminary executors would submit to the court for in camera inspection, on notice to all parties, certain documents which the preliminary executors contend are not subject to disclosure as either they are protected by the attorney-client privilege, or they constitute attorney work product and/or they do not fall within the CPLR 4503 [d] provision applicable to probate proceedings.

The attorney-client privilege is a creature of statute, and prohibits an attorney from disclosing a confidential communication had with his client in the course of professional employment unless the client waives the privilege (see CPLR 4503; see also CPLR 3101 [b]; D’Alessio v. Gilberg, 205 AD2d 8, 10 [2d Dept 1994]). The work product privilege (see CPLR 3101 [c]) encompasses documents that would naturally be considered the product of an attorney’s work, such as notes reflecting interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs “countless other tangible and intangible things” (Victory Markets, Inc. v. Purer, 51 AD2d 895 [1st Dept 1976], citing i.e., Hickman v. Taylor, 329 US 495 [1947]; see also Matter of Kirk, 32 Misc 3d 1205 [A], 2011 NY Slip Op 51185 [U] [Sur Ct, NY County 2011]). As the privileges serve to shield evidence from discovery and thereby potentially thwart the factfinding process, they are to be strictly construed (see D’Alessio v. Gilberg, 205 AD2d at 10; see also Matter of Kirk, 32 Misc 3d 1205 [A], 2011 NY Slip Op 51185 [U]). The burden of proving each element of either privilege rests on the party asserting it (see Matter of Priest v. Hennessy, 51 NY2d 62, 68-69 [1980]; Matter of Kirk, 32 Misc 3d 1205 [A], 2011 NY Slip Op 51185 [U]; People v. Radtke, 155 Misc 2d 21, 23-24 [Sup Ct, Queens Co. 1992]).