Gama Aviation Inc. et al., Appellants/Counterclaim Defendants-Appellants, v Sandton Capital Partners, L.P., et al., Respondents, and KB Acquisition, LLC, Counterclaim Plaintiff-Respondent., 99 A.D.3d 423

Summary

The successor argued that the borrowers' attorney-client privilege was waived because the communications were copied to, sent to, or authored by a third-party. However, the appellate court found that the borrowers' affidavit showed that the third party was acting as their agent and that the borrowers had a reasonable expectation that he would keep the communication confidential. The borrowers' affidavit adequately explained that the documents were prepared in anticipation of litigation, and that the successors failed to show a "substantial need" and "undue hardship" required to overcome the privilege under CPLR 3101(d)(2). The borrowers did not waive the trial preparation privilege by copying the documents to the third party, who was highly unlikely to disclose confidential material. The borrowers' claim that 10 entries constituted attorney work product was waived under CPLR 3122(b). In their privilege logs, the borrowers labeled "Trial Preparation Privilege" instead of "Work Product ...