This was originally published on the SGR Blog.
Court Decides If Email From Management Company & Attorneys Was Privileged
Michele and John Kijek sought an order compelling the Board of Managers of Lakeside of Bedford Condominium (“BMLBC”) and Katonah Management Group, Inc. (“KMG”) to disclose: (1) complete and unredacted copies of any and all emails between the Condominium and Shapiro, Gettinger Waldinger & Montelone, LLP (including all attorneys and/or employees of such law firm, including but not limited to Steven Waldinger and Jennifer Catalanotto) and the Management Group (including but not limited to Andrea Morse, Stephen Brussels, Bryan Hao, Dean Sterino, Jeanne Casarini and Sylvia Padrevita for the year of 2016), and (2) that a search be performed in the email history of Andrea Morse, Jeanne Cassarini, Stephen Brussels, Sylvia Padrevita, Rosemary Capone, Jim Stakebake, Jerry Moskowitz, Laurie Hilliard, and Bill Lang for any emails related to the incidents described in the complaint.
The Kijek’s alleged that Lynn West and Stanley West were tenants of Jane McConnell, the owner of condominium Unit 1005 and asserted that, on July 29, 2016, the Wests owned a certain dog named Harrison or “Harry” which attacked their daughter, Sydney Woodard, and their dog known as “Cooper” in the vicinity of the Wests’ condominium, causing her injuries and injuries to “Cooper.” On October 1, 2016, the Wests’ dog attacked Michele Kijek causing her personal injuries.
The Kijek’s alleged that, among the salient issues in the case, was whether the Wests had knowledge of their dog’s vicious propensities, what actions they took to prevent the second incident from occurring, and whether they acted with reckless disregard for the safety of others. In light of the foregoing, they insisted on the production by defendants of emails in order to establish who knew what and when, the proposed actions considered by defendants, the reasoning employed by defendants for their actions or inactions, and the reasonableness of their actions or inactions following the first incident. The Kijek’s conceded that defendants had furnished numerous emails between the parties but complained that several of such emails produced had been redacted on the basis of attorney-client privilege and attorney-work product doctrine.
The Kijek’s argued that the attorneys merely represented the BMLBC and not KMG, nor did KMG act as agent for defendant BMLBC. Even had KMG acted in such capacity, such entity would not be entitled to assert such privilege relying on the proposition that the attorney-client privilege extended only where the agents’ purpose was to assist the attorney in communicating with the client. Thus, no attorney-client relationship could be asserted between KMG and BMLBC, and they were entitled to all unredacted emails exchanged between the two.
The Kijek’s additionally asserted that BMLBC and KMG were not entitled to assert the attorney-work product privilege. They contended that the emails sought could not have possibly been prepared in anticipation of litigation since the injury sustained by Michele Kijek did not occur until October 1, 2016, which was subsequent to the exchange of the majority of the emails they sought in their application. The Kijek’s believed that the bulk of the emails related to communications between the parties, including the attorney for BMLBC, regarding the terms under which the Wests would be permitted to keep their dog on the property. They posited that, since the liability carrier was not included in those emails, the emails did not concern potential litigation. As to those emails that were exchanged subsequent to the October 1, 2016 incident, the Kijek’s asserted those emails were not created by the attorney for BMLBC but rather an employee of KMG and thus were not subject to the attorney-work product privilege.
Defendants countered that KMG was, in fact, an agent of BMLBC and a necessary party, joined in interest in any discussion between BMLBC and its general counsel as KMG was the “facilitator” for BMLBC insofar as BMLBC acted and communicated through KMG, its managing agent. In its role as agent of BMLBC, defendants argued that in anticipation of the pending litigation, KMG was a necessary party to communications with BMLBC’s counsel on behalf of BMLBC, and thus such communications were subject to the attorney-client privilege.
Defendants asserted as to the Kijek’s insistence that the privileged communications would establish who knew what and when, the proposed actions considered by defendants, the reasoning employed by defendants for their actions or inactions, and the reasonableness of their actions or inactions following the first incident, they had more than ample opportunity to question the two witnesses defendants produced for examinations before trial, James Stakebake, on behalf of defendant BMLBC and Bryan Hao on behalf of KMG, during their lengthy depositions over several days. When defendants offered to produce former KMG managing agent employee Andrea Morse, the Kijek’s responded that her testimony was not necessary.
The Court found that the Kijek’s’ first argument that the attorney-client privilege existed only as to BMLBC and not managing agent KMG was unavailing.
Stakebake was an owner and resident of the premises for approximately 20 years, a board member of BMLBC for nearly 19 years, and vice president of the board in 2016.8 He testified that the board hired a property management company9 and the role of such property management company was to oversee all of the common fees that are collected for the property, and assist in finding vendors for projects including landscaping and snow removal. “If there is any issues, you know, with the homeowners, they bring it to the board’s attention.” Stakebake asserted that the reason BMLBC retained KMG management company was to “do the day-to-day management of the community.” He stated that KMG had been the property manager for BMLBC for nearly 19 years, and in October of 2016, there was a contract between KMG and BMLBC. The monthly board meetings were held at the offices of KMG in Croton Falls, New York. The board’s records and files including all the minutes of its board meetings were kept in the offices of KMG.
Stakebake further averred that if an email was sent out, it was automatically sent out to all board members. He testified that the two people that BMLBC primarily worked with at KMG were Andrea Morse and Bryan Hao. Stakebake stated that the board had monthly board meetings as well as special board meetings if there was an emergency situation, and the agenda was created by KMG. After being shown various emails, he stated that Steven Waldinger was an attorney who had represented BMLBC and the condominium for many years, and the firm was paid on a case-by-case basis by the community association. But Stakebake had no idea whether Waldinger was the attorney for KMG.
Bryan Hao testified that KMG was a property management firm that focused on primarily providing support for residential boards of directors and associations of condominiums or homeowner associations. Hao was one of the two principals in the firm and the other was Stephen J. Brussels. Hao explained that KMG had a contract with BMLBC which they generally renewed every three years, and the duties of KMG consisted of, inter alia, all operational aspects of the community, working with the board of directors regarding policies and practices which included but were not limited to collecting and depositing all common charges for the association, and paying all invoices that the condominium association incurred as part of their operations. KMG reports such expenditures as part of its monthly obligations to the association. In addition, KMG performed periodic inspections, responded to homeowner issues, and sought approval from the board of directors or board of managers for extraordinary expenditures as well as fielding homeowners telephone calls and investigating residents’ complaints. He further testified that in 2016, the assigned property manager for BMLBC was Andrea Morse and the administrator who supported her was Jeanne Casarini.
Hao stated in his affidavit in opposition to the Kijek’s application that, when KMG communicated with counsel, its sole purpose was to seek legal advice and to facilitate attorney communications on behalf of BMLBC. KMG expected such communications to be confidential.
Turning first to the issue of the attorney-client privilege, in order for the privilege to apply, the communication from attorney to client must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship and the communication itself must be primarily or predominantly of a legal character. Whether a third party is an agent is not defined by the third party’s employment or function, but rather depends on whether the client had a reasonable expectation of confidentiality under the circumstances. When an agent is closely involved in a company’s activities, there is no reason to distinguish between a person on the corporation’s payroll and a consultant hired by the corporation if each acts for the corporation and possesses the information needed by attorneys in rendering legal advice.
The Court found that clearly KMG was acting as an agent of BMLBC in relation to communications concerning discussions regarding the two incidents and BMLBC’s attempts to resolve the disputes. The Kijek’s counsel recognized that KMG and BMLBC had consulted with counsel to obtain legal advice and recommendations, and such communications might be subject to privilege.
The Court rejected the cases cited for the proposition that the attorney-client privilege attached only where the participation of the third-party was “necessary” in order to facilitate the provision of legal advice. However, to the extent that there was limited authority to that effect, in this context, BMLBC was comprised of primarily laypersons who retained KMG, an experienced, professional management entity to handle its day-to-day operations as well as other issues, such as the one here, as they arose. The testimony of Hao and Stakebake soundly established that KMG enforced the community rules, handled the incidents asserted in the Kijek’s complaint, and communicated with BMLBC’s counsel in its role as agent of BMLBC in anticipation of litigation.
With regard to the issue of whether the attorney’s work product was subject to privilege, CPLR 3101(c) provides that the “[t]he work product of an attorney shall not be obtainable.” Since the attorney’s work product privilege affords the material absolute immunity from disclosure, courts have narrowly construed the work product of an attorney to include only those materials prepared by an attorney which contain his analysis and trial strategy, and has been applied to documents which reflected counsel’s learning and professional skills, including legal research, analysis, conclusions, legal theory, and strategy. The work product privilege affords protection to interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs that were held, prepared or conducted by the attorney.
The Kijek’s demanded the emails of KMG and BMLBC on the grounds that the e-mails they demand “could not possibly have been prepared in anticipation of litigation since the… injury which gave rise to this litigation did not occur until October 1, 2016, which was after most of those emails were sent.”
Notwithstanding the numerous allegations in the Kijek’s complaint relating to an incident occurring on July 29, 2016, during the deposition of Stakebake on June 13, 2018, the following exchanges took place:
Q: [Kijek’s Attorney]: “So, did Mr. Kijek tell [you that] Harrison bit Cooper in that incident on July 29th?
A: I believe so, yes.
Q: After speaking with Mr. Kijek and some of the other members of the board, you notified Katonah Management?
A: Immediately.
Q: Just drawing your attention back to the e-mail we previously looked at, from July 29th 2016, at 8:56 p.m., didn’t that email discuss how it was the board’s desire to have the dog removed from the condominium in that email?
A: I see that, but what they decided is, when they were talking about a lawsuit, they felt it was best that the board did not talk about this at all to the community and we were then instructed, at that point and I — Katonah management was handling it and they thought well, let’s you know… I think that the mere fact that a lawsuit was being talked about we were like okay, this is — you know, we would take this seriously anyway but now we’re talking lawsuits and we need to, you know, not only protect the community but, you know, if they’re going to sue themselves in suing the community association, we better get an attorney involved…
Q: Were you aware there were legal proceedings in the Katonah town court regarding the first incident from July 29th of 2016?
A: Yes…
And the Court found that there could be no question that defendants were anticipating legal action by the Kijek’s because legal proceedings had already been commenced in the local courts.
The Kijek’s demanded that BMLBC and KMG conduct searches of their emails and provide them with “a complete set of emails, including unredacted portions of the emails sent or received by Steven Waldinger [counsel] (including those previously disclosed emails which were redacted).” The Court found that the demand was overbroad and improper. As Stakebake previously testified,”It is with the board itself. If a message is sent out, it is sent to all board members.” So there is never an email that goes to one board member. It goes to everybody each time.” Additionally, Hao confirmed he performed a search of his emails and turned over all emails in his possession related to the incidents, affirmed that he had access to former employee Morse’s email, and provided the Kijek’s with any emails Morse may have had concerning those incidents. Hao also restated Stakebake’s assertion that all emails were distributed to the entire board. He was on the distribution list of BMLBC and would have been copied on the board’s emails relating to those incidents.
The Court denied the Kijek’s’ motion in its entirety.