BDO U.S., LLP v. Franz, 16290

CourtNew York Supreme Court Appellate Division
Citation2022 NY Slip Op 05265
Docket Number16290,Index No. 652816/20,Case No. 2022-02064
PartiesBDO USA, LLP, Plaintiff-Appellant, v. Matthew Franz, et al., Defendants-Respondents.
Decision Date27 September 2022

2022 NY Slip Op 05265

BDO USA, LLP, Plaintiff-Appellant,

Matthew Franz, et al., Defendants-Respondents.

Appeal No. 16290, Index No. 652816/20, Case No. 2022-02064

Supreme Court of New York, First Department

September 27, 2022

McDermott Will & Emery LLP, New York (Gregory G. Ballard of counsel), for appellant.

Amini LLC, New York (Lita Beth Wright of counsel), for respondents.

Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about March 14, 2022, which, to the extent appealed from as limited by the briefs, granted defendants' motion to compel production of certain videotaped interviews, unanimously affirmed, without costs.

The motion court providently exercised its discretion in finding that the communications between defendants and counsel for plaintiff BDO were not protected by attorney-client privilege or the attorney work product doctrine, as the interviews that BDO's counsel conducted with defendants before the commencement of this action do not constitute the type of communications generally protected against compelled disclosure (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 N.Y.2d 371, 376-377 [1991]). Under the circumstances presented here, BDO, the corporate client, could not have had a reasonable expectation that the interviews, which were purportedly conducted as part of an internal investigation into a former BDO executive, would be confidential, as defendants had already tendered their resignations at the time of the interviews (see Stock v Schnader Harrison Segal & Lewis LLP, 142 A.D.3d 210, 225-226[1st Dept 2016] cf. Upjohn Co. v United States, 449 U.S. 383, 397 [1981]). Moreover, the corporate employees who provided statements to BDO's counsel are now defendants in this action, and the interviews were central to the facts underlying the complaint (see Priest v Hennessy, 51 N.Y.2d 62, 69 [1980]; see People v Osorio, 75 N.Y.2d 80, 84 [1989]).

In addition, the questions posed by BDO's counsel at the interviews are not protected as attorney work product because those questions are not uniquely the product of a lawyer's learning and professional skills (see Brooklyn Union Gas Co. v American Home Assur. Co., 23 A.D.3d 190, 190-191 [1st Dept 1995], citing ACWOO Intl. Steel Corp. v Frenkel & Co., 165 A.D.2d 752, 753 [1990]). As for BDO's claim that the interviews were conducted by counsel in preparation for...

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