Lipin v. Bender

In Lipin v Bender (193 A.D.2d 424 [1993], affd 84 N.Y.2d 562 [1994]), the defendant brought privileged documents to a pretrial discovery proceeding and left them at counsel table where the plaintiff customarily sat. The top sheet of the documents bore the name of the defendant's attorney and the words "File Memo." The plaintiff read and copied the papers, and failed to return them to defense counsel. The plaintiff's attorney maintained that since the materials were left at the plaintiff's seat at the table, they were obtained "legitimately," that there was no inadvertent disclosure, and therefore, the defendant had waived the privilege. The trial court, after reviewing all the circumstances, took the extreme remedy of dismissing the plaintiff's complaint, finding the plaintiff's and her attorney's actions "egregious." The Appellate Division and Court of Appeals agreed with the trial court and held the privilege was not waived by leaving the documents at a pre-trial disclosure conference, notwithstanding their being left at the very seat of the plaintiff. In Lipin v Bender, at a hearing before a Special Referee, the plaintiff took and read privileged documents belonging to defendants' counsel. It was clear that the documents were privileged as attorney work product and as attorney-client communica-tions. Id. at 570. Unlike attorney work product, which is not discoverable (CPLR 3101 [c]), the confidential information here may be released. DHCR willingly provided the information to plaintiffs' counsel, and only DHCR was in the position of deter-mining, in the first instance, whether it properly disclosed confidential information. The Court notes that item 41 of plaintiffs' discovery request was broader than the specific records that DHCR turned over to plaintiffs.