Discrimination Plaintiff Not Entitled to Depose City Counsel

In Smyth v. City of New York, No. 157294/2017, 2021 WL 1667153 (N.Y. Sup Ct, New York County Apr. 28, 2021) – an employment discrimination case – the court granted defendants’ motion for a protective order, and precluded plaintiff from conducting a deposition of its Acting General Counsel Sanford Cohen, on the ground that such discovery was precluded by the attorney-client privilege.

From the decision:

Here, plaintiff challenges whether the City Defendants’ attorney was providing legal advice about the investigation of plaintiff, or if he was acting as an investigator. The City Defendants submit GC Cohen’s affidavit in which he states that “I did not participate in this investigation in any capacity” and that the “only role I played was, in my capacity as Deputy General Counsel, to provide legal advice to those DCAS employees investigating Plaintiff’s application file” to show his role and that he was providing legal advice or services to his client (NYSCEF Doc. No. 47, Cohen aff, ¶¶ 8, 14). GC Cohen further attests that the purpose of his November 18, 2015 conversation with Boyer-Overton was to provide legal advice about the potential legal ramifications if (1) plaintiff had resigned from his prior job with the Parks Department in lieu of pending disciplinary charges and/or termination, and (2) plaintiff made false statements by omitting that information from his CPD-B (id., Cohen aff, ¶ 9). He further stated that the purpose of his November 25, 2015 conversation with Williams was to provide the same legal advice (id., Cohen aff, ¶ 10). It also is clear from the face of the emails of November 18 and 25, 2015 that GC Cohen’s emails and communications with Williams and Boyer-Overton were for the purpose of giving legal advice as the City Defendants’ attorney. The January 26, 2016 email asking about whether plaintiff responded to the NOPPA similarly is a protected communication. This satisfies their burden on the motion.

*6 Plaintiff fails to submit any proof that GC Cohen was acting otherwise. The cases upon which plaintiff relies are clearly distinguishable. In 305-7 W. 128th St. Corp. v Gold (178 AD2d 251 [1st Dept 1991]), the Court compelled the deposition of the defendant’s attorney because she negotiated the commercial lease the plaintiff was seeking to enforce, and had firsthand knowledge of facts and circumstances surrounding the transaction (id. at 251). Here, in contrast, GC Cohen was not a negotiator or an investigator, and plaintiff presents no facts otherwise. In American Reliance Ins. Co. v National Gen. Ins. Co. (149 AD2d 554 [2d Dept 1989]), the plaintiff claimed bad faith failure to settle within policy limits, and the defendants sought to depose the plaintiff’s attorney who negotiated the underlying settlement. The Court ordered the deposition, because the plaintiff affirmatively placed in issue its attorney’s knowledge of the facts that might prove defendants’ bad faith (id. at 554). In the instant case, the City Defendants have not placed at issue GC Cohen’s factual knowledge. Finally, in Equitable Life Assur. Socy. of U.S. v Rocanova (207 AD2d 294 [1st Dept 1994]), the Court granted a protective order, preventing the deposition of defendant insured’s former attorney about the circumstances of the preparation of an affidavit for the defendant’s physician.

The disclosure sought by plaintiff — GC Cohen’s deposition — seeking to question him about his confidential communications with DCAS employees regarding the investigation into plaintiff’s application, is precluded by the attorney-client privilege.

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