Legal malpractice cases are subject to all the rules. Sometimes they may seem even more subject to the rules than are other case, but in Economic Alchemy LLC v Byrne Poh LLP 2019 NY Slip Op 33739(U) December 20, 2019 Supreme Court, New York County Docket Number: 653632/2015
Judge: Lucy Billings the issue of note is how the question of successor attorney immunity might be resolved on discovery issues.
“In this action for defendants’ legal malpractice in prosecuting patent applications for plaintiff, defendants move for penalties due to its noncompliance with the order dated October 11, 2019, and the stipulated Status Conference Order dated December 5, 2019, or to compel its production of documents in compliance with those orders.”
“Plaintiff admits that it has not produced the correspondence by its patent attorneys who preceded and succeeded defendants that they requested and the court ordered. By December 23, 2019, plaintiff shall .produce any documents not privileged or protected under C.P.L.R. § 310`1(c) or (d) (2) or shall specify an applicable privilege or protection in a log that includes any withheld document’s type, subject, and date and other information necessary to identify the document, including the persons to whom it was sent or from whom it was received. C.P.L.R. §§
3120(1) (i), 3122(a) (1) and (b); Stephen v. State of New York, 117 A.D.3d 820, 820-21 (2d Dep’t 2014); Ural v. Encompass Ins. Co. of Am., · 97 A. D. 3d 562, 566-67 (2d Dep’ t 2012) . These documents are material and necessary to defendants’ defenses that plaintiff’s predecessor attorneys caused the damages plaintiff claims. in this ‘ action and that its successor attorneys had and continue to have ample opportunities to mitigate its claimed damages. Plaintiff’s noncompliance with repeated deadlines to produce these documents or a privilege log warrants a further penalty if
plaintiff fails to complete this production by December 23, 2019. To the extent that plaintiff fails to produce.by then any documents or privilege log pertaining to correspondence by plaintiff’s patent attorneys ~ho preceded defendants, the issue of whether any predecessor attorneys caused the damages plaintiff claims in. this action shall be resolved in defendants’ favor. To the extent that plaintiff fails to produce by December 23. 2019, any documents or privilege log pertaining to correspondence by plaintiff’s patent attorneys who succeeded defendants, the issue of whether any successor attorneys could have mitigated the damages plaintiff claims in this action shall be resolved in
defendants’ favor. C.P.L.R. § 3126(1); Crooke v. Bonofacio, 147 A.D.3d 510, 510-11 (1st. Dep’t 2017); Baldwin v. Gerard Ave;, LLC, 58 A.D.3d 484, 484-85 (1st Dep’t 2009); Horizon Inc. v. Wolkowicki, 55 A.D.3d 337, 338 1st Dep’t 2008); Longo v. Armor El. Co, 307 A.D.2d 848, 849 (1st Dep’t 2003). See Weissman v. 20 E. 9th St. Corp., 48 A.D.3d 242, 243 (1st Dep~t 2008); Schilling v. Quiros~ 23 A.D.3d 243, 244 (1st Dep’t 2005). “