United States District Court, E.D. New York
MEMORANDUM & ORDER
M. GOLD United States Magistrate Judge.
conference was held in this case on November 8, 2019. At that
time, the Court issued oral rulings with respect to several
pending discovery disputes. Those disputes included
defendants' challenge to plaintiff's assertion of
attorney-client privilege with respect to her communications
with David Parness, who is neither an attorney nor a party in
this action. Defs.' Letter dated Sept. 11, 2019, Dkt. 28.
The Court for the most part overruled plaintiff's
assertions of attorney-client privilege with respect to
communications involving Parness, but sustained
plaintiff's assertions of privilege with respect to
communications between plaintiff and her counsel during which
Parness was present or participating by telephone. Min. Entry
dated Nov. 8, 2019, Dkt. 36; Tr. of Nov. 8, 2019 Conference,
Dkt. 37 (“Tr.”).
now moves for reconsideration of the Court's decision to
overrule her assertions of attorney-client privilege,
invoking Federal Rules of Civil Procedure 59 and 60 and Local
Civil Rule 6.3. Dkt. 38. Defendants have submitted opposition
to the motion, Opp. to Mot. for Recons., Dkt. 41, and
plaintiff has filed a reply, Reply, Dkt. 42. For the reasons
stated below, the motion is denied.
have repeatedly stressed that “the standard for
granting [a motion for reconsideration] is strict, and
reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the
court overlooked.” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.2d 36, 52 (2d Cir. 2012)
(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995)); see also Concepcion v. City of New
York, 2019 WL 3252749, at *1 (E.D.N.Y. July 18, 2019).
In her original discovery letter, plaintiff argued that her
communications involving Parness were protected from
disclosure on attorney-client privilege grounds because
Parness was her agent. Pl.'s Letter dated Sept. 16, 2019,
at 2, Dkt. 29. In support of her motion for reconsideration,
plaintiff relies almost entirely on an email she sent to her
attorneys in 2018 as evidence in support of her contention
that Parness was her agent.
does not identify any reason why the email could not have
been submitted, or the argument she now advances based upon
it could not have been made, when plaintiff submitted her
original opposition to defendants' letter dated September
11, 2019. Accordingly, plaintiff has failed to establish a
proper basis for reconsideration.
the substance of plaintiff's reconsideration motion were
properly before the Court, I would deny the motion on its
merits. A party invoking the attorney-client privilege bears
the burden of establishing that the privilege applies and has
not been waived. See Universal Standard Inc. v. Target
Corp., 331 F.R.D. 80, 86 (S.D.N.Y. 2019); Allied
Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 103
(S.D.N.Y. 2007). The privilege is narrowly construed because
it protects relevant information from disclosure. See
Universal Standard, 331 F.R.D. at 86. Plaintiff has
failed to meet her burden to show that the attorney-client
privilege applies to communications with Parness.
disclosure of attorney-client communications to a third party
waives the privilege. See id.; Cicel (Beijing)
Science & Tech. Co. v. Misonix, Inc., 331 F.R.D.
218, 228 (E.D.N.Y. 2019); Allied Irish Banks, 240
F.R.D. at 103. There are, however, exceptions to the general
rule of waiver, two of which are relevant here. First, no
waiver occurs if the participation of a third party is
necessary for effective communication between the client and
counsel. See Universal Standard, 331 F.R.D. at 87.
Second, disclosure to a third party who is an agent of the
client does not waive the attorney-client privilege. See
Id. This second exception “derives from the fact
that any act of a corporation-including communications with
an attorney-must necessarily be accomplished through an
agent.” Id. at 88. However, where disclosure
of attorney-client communications to a third party “is
merely ‘useful' but not ‘necessary,' the
privilege is lost.” Allied Irish Banks, 240
F.R.D. at 104.
extent the Court's ruling during the conference on
November 8, 2019 sustained plaintiff's assertion of
privilege, it did so based upon the first of the two
exceptions noted above. More specifically, the Court found
that “Mr. Parness may have helped facilitate the
communications between Wang and her counsel, in which he
directly participated.” Tr. at 18:16-18. The Court
rejected plaintiff's attempt to avoid waiver by
contending Parness was her agent because plaintiff failed to
present facts sufficient to establish a principal-agent
relationship. Tr. 12:25-15:14. Plaintiff now seeks to bolster
her showing by pointing to an email plaintiff sent to her
attorney on October 18, 2018.
a fiduciary relationship which results from the manifestation
of consent of one person [the principal] to allow another to
act on his or her behalf and subject to his or her control,
and consent by the other so to act . . . The agent is a party
who acts on behalf of the principal with the latter's
express, implied, or apparent authority.
Faith Assembly v. Titledge of N.Y. Abstract, LLC,
106 A.D.3d 47, 58 (2d Dep't 2013) (quoting Maurillo
v. Park Slope U-Haul, 194 A.D.2d 142, 146 (2d Dep't
1993)). It is well settled that “[t]he descriptive term
‘agent' . . . is not necessarily
determinative” and that “[t]he acts of a person
and not the label attached may well determine in a practical
sense and as a factual matter, the category into which the
person falls.” Conn. Mut. Life Ins. Co. v.
Wolf, 1997 WL 597064, at *4 (E.D.N.Y. Sept. 24, 1997)
(internal citation omitted).
in the email submitted by plaintiff in support of her motion
for reconsideration calls into question any of the facts
relied upon by the Court in concluding that plaintiff failed
to establish that Parness was her agent. Nor does the email
itself establish an agency relationship; it does not, for
example, authorize Parness to make any decision or take any
action on Wang's behalf. Rather, it merely purports to
“autherize (sic)” Parness “to assist”
Wang “in the lawsuit.” Email dated Oct. 18, 2018,
Dkt. 40-1. Because it lacks any specification of the sort of
assistance it authorizes Parness to provide, the email is
essentially meaningless. The Court doubts, for example, that
plaintiff's counsel would agree, in reliance on the
email, to settle or dismiss plaintiff's claims upon
instructions from Parness without obtaining explicit
authority to do so from plaintiff Wang. Moreover, plaintiff
has failed to establish that any assistance Parness may have
provided was “necessary” rather than merely
“useful” in any respect other than facilitating
communications between Wang and her counsel in real time, as
they were taking place.
these reasons, plaintiffs motion for reconsideration is