Can the Defendant's Counsel Be Disqualified for Using Wrongfully Obtained Information ?
In Surgical Design Corp. v. Correa (21 AD3d 409, 799 N.Y.S.2d 584 [2d Dept 2005]), defendants, who were plaintiff's former employees, received copies of letters from plaintiff's counsel during the course of their employment and gave the letters to their attorney when this action was commenced.
The Appellate Division, Second Department modified the trial court's decision, which denied both plaintiff's motion for defendants' counsel's disqualification and the motion to suppress the privileged documents, by granting the suppression branch of plaintiff's motion, but affirming the denial of the motion to disqualify as disqualification would have been too harsh a sanction since the practical effect would deny defendants the counsel of their choice and further delay the action.
In granting that branch of the motion which was to suppress, the Court noted that the "documents were presumptively privileged ... and, rather than notify the plaintiff that he had come into possession of its privileged material, the defendant's attorney attempted to use the material to his client's advantage in this litigation" (id. at 410).
There, even though the bell could not be unrung, the Second Department found disqualification too harsh a remedy (see also Fayemi v. Hambrecht & Quist, Inc.,174 FRD 319 [SD NY 1997] [after plaintiff's employment terminated, he gained access to office after hours and copied confidential materials; court sanctions plaintiff by prohibiting plaintiff's use of the wrongfully-obtained information];