Attorney-client communications are privileged, and not open to discovery in general. In a legal malpractice case, the rules are somewhat relaxed. If the attorney client communications are “at issue” they are discoverable. To the extent that Plaintiff relied upon these communications to make decisions about the underlying case for which he is suing the attorneys, it might be called a “shield.” To the extent that he has decided to sue the attorneys and if he wishes to use the communications as a reason to sue, it might be called a “sword.”
If the communications are used either as a shield or a sword, they are discoverable and no longer privileged. That’s the “at use” principal. Gormakh v Khenkin & Sauchik, P.C. 2015 NY Slip Op 30700(U) April 28, 2015 Supreme Court, New York County Docket Number: 155923/2013 Judge: Manuel J. Mendez is an example.
“Plaintiff filed this action to recover from the defendants for legal malpractice and negligence as a result of the negotiating, drafting and signing of a commercial lease agreement for a proposed daycare. The Complaint seeks $300,000 in damages as a result of defendants’ malpractice and negligence. The Complaint also asserts a cause of action for attorneys’ fees and seeks in excess of $100,000 in special damages for “costs and expenditures in pursuit of this matter” (see Complaint, PP 46-47; Bill of Particulars, Response No. 7).
CPLR § 3101 (a) allows for the “full disclosure of all evidence material and necessary in the prosecution or defense of an action regardless of the burden of proof.” CPLR § 31 24 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. The striking of a pleading is a drastic remedy and is only warranted where a clear showing has been made that the noncompliance with an order was willful, contumacious or due to bad faith (Mateo v. City of New York, 274 A.O. 2d 337, 711N.Y.S.2d 396 [1st. Dept. 2000]). “The words ‘material and necessary’ as used in section 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Kapon v. Koch, 23 N.Y.3d 32, 38, 11 N.E.3d 709, 988 N.Y.S.2d 559 [2014) citing to, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432 [1968)). The documents sought by defendants are material and necessary to the defendants’ ability to defend against plaintiff’s claims. “[A]ny communications between plaintiff and its attorneys in the [prior action] that evaluated defendant’s prior advice … are certainly relevant to the issue of defendant’s alleged malpractice” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 62 A.D.3d 581, 582, 880 N.Y.S.2d 617, 618 [1st Dept., 2009)). The documents sought by defendants (see Aff. In Opposition to Cross-Motion, PP. 3[a-h]) were put at issue by plaintiff’s claim for legal fees and special damages, and plaintiff has not disavowed any intention to use privileged materials to help establish his claim for special damages (Assured Guar. Mun. Corp. v. DB Structured Prods., Inc., 111 A.D.3d 478, 974 N.Y .S.2d 455 [1st Dept., 2013); IDT Corp. v. Morgan Stanley Dean Witter & Co., 107 A.D.3d 451, 967 N.Y.S.2d 51, [1st Dept. 2013)). Defendants are entitled to the documents sought as to the claims for special damages. “