Brummer v. Wey

• Decision Date: 17 January 2020
• Docket Number: 153583/2015
• Citation: 68 Misc.3d 806,126 N.Y.S.3d 844
• Parties: Christopher BRUMMER, Plaintiff, v. Benjamin WEY, FNL Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants.
• Court: New York Supreme Court

68 Misc.3d 806
126 N.Y.S.3d 844

Christopher BRUMMER, Plaintiff,
v.
Benjamin WEY, FNL Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants.

153583/2015

Supreme Court, New York County, New York.

Decided on January 17, 2020

126 N.Y.S.3d 845

Nicole Gueron Esq., Clarick Gueron Reisbaum LLP, 220 5th Avenue, New York, NY 10001, For Plaintiff

Jonathan D. Lupkin Esq., Lupkin PLLC, 80 Broad Street, New York, NY 10004, For Defendants Wey and NYG Capital LLC

Edmund Polubinski III Esq., Davis Polk & Wardwell, LLP, 450 Lexington Avenue, New York, NY 10017, For Nonparty Financial Industry Regulatory Authority

Lucy Billings, J.

68 Misc.3d 807

In this action for defamation and infliction of emotional distress, defendants Wey and NYG Capital LLC move to compel production of documents by nonparty Financial Industry Regulatory Authority (FINRA) that defendants subpoenaed and that defendants claim FINRA stipulated to produce. C.P.L.R. § 3124. For the reasons explained below, the court grants defendants' motion to the extent set forth.

I. THE DOCUMENTS LISTED IN FINRA'S PRIVILEGE LOG

First, defendants Wey and NYG Capital move to compel production, C.P.L.R. § 3124, of 33 documents that plaintiff and FINRA claim are protected from disclosure under C.P.L.R. § 3101(c) as attorney work product or under C.P.L.R. § 3101(d)(2) as material prepared in anticipation of litigation. FINRA's privilege log further characterizes the subject of eight withheld documents as "mitigation of litigation risks arising out of public statements concerning anticipated litigation."

An in camera review of the documents reveals that they are first and foremost proposed strategies by a public relations firm and comments by plaintiff and FINRA

126 N.Y.S.3d 846

on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, arsing from his work with FINRA, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants' future conduct, the firm, APCO Worldwide, proposed as part of the campaign the creation of new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.

Of course when plaintiff anticipated commencing this litigation, he, his attorneys, and APCO Worldwide anticipated that he might need to respond to inquiries about the litigation or respond to retaliatory defamation by defendants and might use the litigation as another opportunity to explain and counteract the defamation. If other media portrayed the underlying facts or the litigation inaccurately, APCO Worldwide proposed to correct and halt the spread of misinformation. Consequently, plaintiff's attorneys were kept abreast of the proposals, to advise APCO Worldwide and plaintiff in the event the proposals might negatively impact the litigation or expose plaintiff to liability for any statements by him about defendants: hence the label, "mitigation of litigation risks arising out of public

68 Misc.3d 808

statements concerning anticipated litigation." The documents reveal no such event, however, nor any advice by plaintiff's attorneys, other than their concern that they be kept abreast.

While the work product protection may extend to an attorney's information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiff's action, the documents at issue thus show that the attorneys conveyed no such information, impressions, or observations, nor did APCO Worldwide assist in analyzing or preparing plaintiff's action. See Beach v. Touradji Capital Mgt., LP , 99 A.D.3d 167, 170, 949 N.Y.S.2d 666 (1st Dep't 2012) ; MBIA Ins. Corp. v. Countrywide Home Loans, Inc. , 93 A.D.3d 574, 574, 941 N.Y.S.2d 56 (1st Dep't 2012) ; Hudson Ins. Co. v. Oppenheim , 72 A.D.3d 489, 490, 899 N.Y.S.2d 29 (1st Dep't 2010). The documents include no communications by attorneys that are the product of their legal training or skills or that reflect any legal research, analysis, theory, strategy, or conclusion. Venture v. Preferred Mut. Ins. Co. , 153 A.D.3d 1155, 1159, 61 N.Y.S.3d 210 (1st Dep't 2017) ; Matter of New York City Asbestos Litig. , 109 A.D.3d 7, 12, 966 N.Y.S.2d 420 (1st Dep't 2013) ; Fewer v. GFI Group Inc. , 78 A.D.3d 412, 413, 909 N.Y.S.2d 629 (1st Dep't 2010) ; Plimpton v. Massachusetts Mut. Life Ins. Co. , 50 A.D.3d 532, 533, 855 N.Y.S.2d 544 (1st Dep't 2008). Their occasional communications reflect only their desire to be apprised of APCO Worldwide's, plaintiff's, or FINRA's proposed public relations strategies in the event they called for the attorneys' input. To the extent that any FINRA attorney offered public relations advice, it was only public relations advice, not legal advice. Therefore the documents include no attorney work product. C.P.L.R. § 3101(c) ; Fewer v. GFI Group Inc. , 78 A.D.3d at 413, 909 N.Y.S.2d 629 ; Plimpton v. Massachusetts Mut. Life Ins. Co. , 50 A.D.3d at 533, 855 N.Y.S.2d 544 ; Brooklyn Union Gas Co. v. American Home Ins. Co. , 23 A.D.3d 190, 190-91, 803 N.Y.S.2d 532 (1st Dep't 2005).

The documents also make abundantly clear that they were not prepared primarily for purposes of the litigation. C.P.L.R. § 3101(d)(2) ; Bank of NY Mellon v. WMC Mtge., LLC , 140 A.D.3d 585, 585, 35 N.Y.S.3d 26 (1st Dep't 2016) ;

126 N.Y.S.3d 847

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