Calendar Date: September 12, 2017
Barclay Damon, LLP, Albany (Linda J. Clark of counsel), for
defendant and third-party plaintiff-appellant.
Schoeneck & King, PLLC, Albany (Stuart F. Klein of
counsel), for respondent.
Keidel, Weldon & Cunningham, LLP, White Plains (Robert J.
Grande of counsel), for third-party defendants-respondents.
Before: Peters, P.J., McCarthy, Rose, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Platkin, J.), entered
January 5, 2017 in Albany County, which partially granted
motions by plaintiff and third-party defendants Cool Insuring
Agency, Inc. and Cool Risk Management, Inc. to compel
a home health care provider, was a member of plaintiff, a
group self-insured trust that provided workers'
compensation benefits to defendant's employees. After
defendant's membership in the trust ended, it refused to
pay plaintiff an assessment in excess of $800, 000 for open
claims on defendant's employees. Plaintiff commenced this
collection action against defendant alleging breach of
contract and unjust enrichment . Defendant answered,
counterclaimed and then commenced a third-party action
against, among others, third-party defendants Cool Insuring
Agency, Inc. and Cool Risk Management, Inc. (hereinafter
collectively referred to as Cool), the trust's group
administrators. Defendant's third-party complaint
alleged, among other things, that Cool had mismanaged and
improperly administered the workers' compensation claims
of defendant's employees. Plaintiff thereafter moved to
dismiss the counterclaims and Cool moved to dismiss the
third-party complaint, and the movants ultimately received
partial relief as detailed in prior decisions of this Court
(141 A.D.3d 792');">141 A.D.3d 792 ; 141 A.D.3d 785');">141 A.D.3d 785 ).
this collection litigation, Cool made a discovery request to
produce a report commissioned by defendant's
then-counsel, Whiteman Osterman and Hanna, LLP (hereinafter
WOH) and prepared by a consultant, Towers Perrin, regarding
Cool's management and administration of the workers'
compensation claims of defendant's employees. Cool also
sought documents and written communication related to that
report. Defendant refused to comply with the discovery
request, claiming that the materials were protected by, among
other things, the attorney-client privilege. Cool and
plaintiff then moved to compel production of the requested
report and materials. Supreme Court examined the requested
materials in camera and partially granted the motions to
compel, ordering defendant to disclose the report and related
documents, but denied disclosure as to one email exchange
between defendant's executives and WOH attorney Joel
Hodes. Defendant appeals.
to CPLR 3101 (a), there shall generally be "full
disclosure of all matter material and necessary in the
prosecution or defense of an action" (see Madison
Mut. Ins. Co. v Expert Chimney Servs., Inc., 103 A.D.3d
995, 996 ), and defendant bore "the burden of
demonstrating that particular items are exempt or immune from
disclosure [as] the party asserting such immunity"
(Salzer v Farm Family Life Ins. Co., 280 A.D.2d 844,
845 ). "Supreme Court is vested with broad
discretion in controlling discovery and disclosure, and
generally its determinations will not be disturbed in the
absence of a clear abuse of discretion" (Gold v
Mountain Lake Pub. Telecom., 124 A.D.3d 1050, 1051
 [internal quotation marks and citation omitted]).
argues that the report was protected by the attorney-client
privilege, as attorney work product and as material prepared
in anticipation of litigation. Supreme Court properly
rejected these claims. "The attorney-client privilege
shields from disclosure any confidential communications
between an attorney and his or her client made for the
purpose of obtaining or facilitating legal advice in the
course of a professional relationship" (Ambac Assur.
Corp. v Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623
, citing CPLR 4503 [a] ; see Spectrum Sys. Intl.
Corp. v Chemical Bank, 78 N.Y.2d 371, 377-378, ).
As the party asserting the privilege, defendant was required
to show "that the communication at issue was between an
attorney and a client for the purpose of facilitating the
rendition of legal advice or services, in the course of a
professional relationship, that the communication is
predominantly of a legal character, that the communication
was confidential and that the privilege was not waived"
(Ambac Assur. Corp. v Countrywide Home Loans, Inc.,
27 N.Y.3d at 624 [internal quotation marks and citation
omitted]; see Spectrum Sys. Intl. Corp. v Chemical
Bank, 78 N.Y.2d at 379).
record, including the report itself, reflects that WOH,
defendant's counsel, retained Towers, an independent
claims consultant, to undertake a comprehensive claims review
to include the trust's reserve practices and Cool's
administration of claims of defendant's employees, in
order to resolve the parties' impasse over
defendant's unpaid assessments. Towers was given in-house
access to Cool's documents for this purpose in addition
to supporting documentation already provided by Cool. To that
end, defendant's president sent a letter to Cool's
vice-president reflecting that the purpose of the
consultant's review of Cool's records was to
"facilitat[e] an intelligent conversation with
[Cool's] claims department, " which Supreme Court
aptly characterized as a "typical business
purpose." Cool's vice- president submitted an
affidavit attesting that it was his understanding that the
purpose of the consultant's review was to verify the
accuracy of the assessments billed to defendant, and that
Towers assured him that it would discuss its findings with
Cool; another Cool vice-president attested that Towers did
share certain findings with Cool, including that it did not
find any problems with inappropriate payment of claims by
Supreme Court correctly concluded, the report "does not
include any legal advice, legal analysis or discussion of
legal issues" nor does it disclose confidences of
defendant, and we further note that it was based almost
exclusively on information provided by Cool and, as such, it
is not a communication "of a legal character"
(Ambac Assur. Corp. v Countrywide Home Loans, Inc.,
27 N.Y.3d at 624). Further, we discern no error in the
court's conclusion - after crediting the proof that
defendant did not expect that the report would remain
confidential and that the contents of the report were not, in
fact, kept confidential - that the report was not a
confidential communication, and that any privilege was waived
(see id. at 623-624). Thus, the report was not
protected by the attorney-client privilege.
further find that the report was not protected from
disclosure as attorney work product, as this "privilege
should be narrowly applied to materials prepared by an
attorney, acting as an attorney, which contain his [or
her] analysis and trial strategy" (Kinge v State of
New York, 302 A.D.2d 667, 670  [internal quotation
marks and citation omitted; emphasis added]; see
CPLR 3101 [c]; Cioffi v ...