Acwoo Intern. Steel Corp. v. Frenkel & Co.

• Decision Date: 20 September 1990
• Citation: 564 N.Y.S.2d 40,165 A.D.2d 752
• Parties: ACWOO INTERNATIONAL STEEL CORP., Plaintiff-Respondent. v. FRENKEL & COMPANY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 40

564 N.Y.S.2d 40

165 A.D.2d 752

ACWOO INTERNATIONAL STEEL CORP., Plaintiff-Respondent. v. FRENKEL & COMPANY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Sept. 20, 1990.

Before MURPHY, P.J., and ROSS, CARRO and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about January 22, 1990, which denied defendant's motion to compel plaintiff's counsel to appear for deposition and produce certain documents, and granted plaintiff's motion to quash the subpoena duces tecum directed at plaintiff's counsel, unanimously affirmed, with costs and with disbursements.

Plaintiff, a steel importer, commenced this action against defendant, an insurance broker, for breach of contract for failure to procure "all risk" insurance coverage, i.e., inclusive of both fresh and sea water rust damage for a shipment of steel en route from Korea. Defendant obtained coverage through its Brussels' agent, but when plaintiff submitted a claim for rust damage the claim was denied because the rust was not caused by sea water. Prior and subsequent to commencement of this action, plaintiff's counsel, along with defendant's previous counsel, through meetings and correspondence, attempted to obtain indemnity from the Brussels underwriters and sub-agent.

Defendant thereafter moved to depose plaintiff's counsel, and sought production of documents pursuant to a subpoena duces tecum. Plaintiff's counsel refused to appear, and moved to quash on the basis that the requested documentation was immune from disclosure as "attorney work product" and material prepared in anticipation of litigation pursuant to CPLR §§ 3101(c) and 2304. Both motions were argued before a Special Master. The court thereafter granted the motion to quash and denied defendant's motion on the ground that the documents fell within the purview of CPLR § 3101(a), (c) and (d)(2).

An attorney's work product encompasses "materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his legal research, analysis, conclusions, legal theory or strategy (citation omitted)." (Hoffman v. Ro-San Manor, 73 A.D.2d 207, 211, 425 N.Y.S.2d 619). Such material may consist of "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible things" (Victory Markets, Inc. v. Purer, 51 A.D.2d 895, 380...