Roswell Park Cancer Inst. Corp. v. Sodexo Am., LLC

• Decision Date: 30 December 2009
• Docket Number: 1501 CA 09-01222
• Citation: 2009 NY Slip Op 9808,891 N.Y.S.2d 827,68 A.D.3d 1720
• Parties: ROSWELL PARK CANCER INSTITUTE CORPORATION, Appellant, v. SODEXO AMERICA, LLC, Formerly known as SODEXHO AMERICA, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1720

2009 NY Slip Op 9808

891 N.Y.S.2d 827

ROSWELL PARK CANCER INSTITUTE CORPORATION, Appellant, v. SODEXO AMERICA, LLC, Formerly known as SODEXHO AMERICA, LLC, et al., Respondents.

1501 CA 09-01222

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided December 30, 2009.

Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered April 8, 2009 in a breach of contract action. The order, insofar as appealed from, denied in part the motion of plaintiff to compel disclosure.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for, inter alia, defendants' alleged breach of a contract pursuant to which defendants were to provide certain design and construction services for plaintiff. During the course of discovery, plaintiff moved pursuant to CPLR 3124 to compel disclosure, seeking an order directing defendants to produce 146 documents for an in camera review by Supreme Court. Defendants had refused to produce those documents based on their assertion that the documents in question were protected by the attorney-client privilege, constituted attorney work product or were produced in anticipation of litigation. The withheld documents consist of e-mail communications and attachments thereto. Following an in camera review, the court determined that defendants were required to produce 49 of the documents, some of which were to be partially redacted. On appeal, plaintiff challenges those parts of the court's determination with respect to 32 of the documents in the group of documents characterized by the court as exhibit "A" to its decision. The authors of those documents were not attorneys, nor were they sent to attorneys or copied to attorneys. Plaintiff also challenges 14 of the documents in the group of documents characterized by the court as exhibit "B." Those documents indicate that defendants' in-house counsel was copied in as a recipient. We affirm.

It is well settled that a court is vested with broad discretion to control discovery and that the court's determination of discovery issues should be disturbed only upon a showing of clear abuse of discretion (see J.G. v Zachman, 34 AD3d 1277, 1278 [2006]; Cerasaro v Cerasaro, 9 AD3d 663 [2004]). "[W]hether a particular document is or is not protected [by the attorney-client privilege, the attorney work product privilege or as material prepared in anticipation of litigation] is necessarily a fact-specific determination . . ., most often requiring in camera review" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]; see Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030 [2000]). We perceive no abuse of discretion in this case.

Here, in response to plaintiff's document production demands, defendants produced a comprehensive "Privilege Log," setting forth the names of the author of each document in the "Privilege Log," the persons to whom each document was sent, the date on which each document was sent and a description of each document. Defendants' in-house counsel submitted an affidavit in which he described his participation in the fact-gathering process that was incident to his provision of legal advice to defendants, as opposed to business advice, in response to the difficulties encountered by...