The opinion of the court was delivered by: FELDMAN
By Order dated November 14, 1995, the Honorable Michael A. Telesca, referred this diversity case to the undersigned to determine any non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A) and (b).
Before the Court are defendant GM's cross-motion to compel disclosure of (1) redacted portions of a "notebook" kept by plaintiff's father and (2) documents reflecting communications between plaintiff's mother and plaintiff's counsel along with attorneys notes and memoranda concerning those communications.
The underlying cause of action originates from the unfortunate events of October 19, 1991. Plaintiff, Matthew Hendrick was a passenger in a Geo Prizm automobile driven by his mother, Andrea MacMillan. As the vehicle traveled along Route 96 in Romulus, New York, the car left the road and collided with a utility pole. Plaintiff, as a result of the collision, suffered serious injury and is now a quadriplegic.
Shortly after the accident Plaintiff's father began recording notes of his daily activities related to the accident. Plaintiff has disclosed the seventy-seven page diary to the defendant excepting nine redactions. Plaintiff argues that the redacted entries document privileged attorney-client communications. Similarly, Plaintiff's mother wrote letters and phoned Plaintiff's attorney on several occasions with information relevant to Plaintiff's case. Plaintiff argues that the letters and intra office memoranda concerning the phone calls are also privileged attorney-client communications. Plaintiff also contends that the intra office memoranda are privileged under the attorney work product doctrine. The parties agreed to submit the material in question to the Court for in camera inspection and review.
A. The Attorney Client Privilege in General
Pursuant to Rule 501 of the Federal Rules of Evidence, substantive questions of privilege in this personal injury action will be governed by New York State law. See Application of American Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989)(in a diversity case the existence of a privilege is to be determined by reference to state law); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470-471 (S.D.N.Y. 1993)(under Fed. R. Evid. 501, where action involves state law claims and defenses, it is state law which defines the elements of the attorney-client privilege). New York State recognizes the attorney client privilege via statute.
The privilege "is intended to foster openness between counsel and client so that legal problems can be thoroughly and accurately analyzed." Matter of Vanderbilt, 57 N.Y.2d 66, 76, 453 N.Y.S.2d 662, 439 N.E.2d 378 (1982). Priest v. Hennessy, 51 N.Y.2d 62, 67-68, 431 N.Y.S.2d 511, 409 N.E.2d 983 (1980)(privilege exists "to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment.").
Here the communications are not directly between plaintiff and his attorney. Rather, the majority of communications at issue are between counsel and plaintiff's parents. New York courts have recognized that the attorney-client privilege may attach to communications between a client's agent and an attorney.
As a general rule, a communication by a client to his attorney by any form of agency employed or set in motion by the client is within the privilege. Accordingly, communications to any person whose intervention is necessary to secure and facilitate the communication between an attorney and client are privileged, [such] as communications through an interpreter, a messenger or any other intermediary.
Mileski v. Locker, 14 Misc. 2d 252, 255, 178 N.Y.S.2d 911 (N.Y. Sup. 1958). See People v. Osorio, 75 N.Y.2d 80, 550 N.Y.S.2d 612, 549 N.E.2d 1183 (1989)(communications made to counsel through an agent of either attorney or client to facilitate communication generally held privileged); Stroh v. General Motors Corp., 213 A.D.2d 267, 623 N.Y.S.2d 873 (1st Dept. 1995)(presence of daughter of elderly client during conversations with attorney does not vitiate privilege).
Here plaintiff, a college student, was involved in a catastrophic, if not life threatening, automobile accident. The accident rendered plaintiff a quadriplegic with complete and permanent paralysis. Within weeks after the accident, plaintiff's parents began looking for legal counsel to represent their son. According to plaintiff's father, he undertook this task because "Matt's physical and emotional condition was very unstable, and he was not able to do so [himself]." See Deposition of Michael Hendrick, at pages 459-460, annexed as exhibit "G" to Defendant's Notice of Motion. (Docket # 28). Plaintiff was aware that his parents were seeking counsel for him. Id. Plaintiff's mother also confirmed that her involvement with seeking counsel for her son was because "Matt was so sick and he was not able to do that physically." Id. at exhibit "G" at page 714. Plaintiff's mother testified that her initial conversations with counsel were "exclusively" for the purpose of finding an attorney for her son. Id. at 715.
Given the foregoing, the Court has little difficulty in finding that plaintiff's parents were acting as his agents in locating legal counsel for him in connection with the automobile accident which rendered him a quadriplegic. The record before me is clear that plaintiff's injuries and the comprehensive medical intervention necessary to treat those injuries inhibited plaintiff from independently seeking legal counsel. It is both logical and reasonable that his parents would act as his agent in this important task. Having determined that the parents' communications with counsel may be protected by ...