Knopf v. Esposito
- Sarah Netburn
- 1:17-cv-05833
- U.S. District Court · Southern District of New York
- 5
In Knopf v. Esposito, Judge Cote granted in part a motion to compel communications claimed to be privileged and denied later requests as untimely.
The order directly affected the plaintiffs, non-party Michael Sanford, and attorney-defendant Edward Feldman. It required Sanford to produce certain communications to the plaintiffs, subject to a private court review exception, while denying the request for later communications.
What happened
In Knopf v. Esposito, the plaintiffs asked the court to require non-party Michael Sanford to produce communications with attorney-defendant Edward Feldman. The dispute concerned whether attorney-client privilege protected those communications.
The court found that Feldman represented Pursuit Holdings, LLP, and that Sanford had not shown Feldman separately represented Sanford or another entity during the relevant period. The court also held that any privilege Sanford may have had was waived because he had extensively discussed the communications.
Judge Denise Cote granted the motion in part for communications from October 2015 through February 2016 and required Sanford to produce them, subject to private court review of documents he claimed concerned separate representation. The court denied the request for communications after February 2016 as untimely and insufficiently supported as relevant.
The detailed version
- Knopf v. Esposito · No. 1:17-cv-05833
- Sarah Netburn
- Feb. 23, 2021
Background
The plaintiffs moved to compel non-party Michael Sanford to produce records of communications with attorney-defendant Edward Feldman. The requested communications covered October 22, 2015, through July 11, 2017. Discovery was scheduled to close on February 19, 2021.
It was undisputed that Feldman represented Pursuit Holdings, LLP, in connection with the dispute involving the sale of a penthouse apartment and distribution of the sale proceeds. The trustee in Pursuit’s bankruptcy proceeding waived Pursuit’s attorney-client privilege for those communications. Feldman stated that he represented only Pursuit. Sanford contended that Feldman also represented Sanford personally and other Sanford entities.
Legal Standard and Analysis
The court explained that the party asserting attorney-client privilege bears the burden of establishing that the privilege applies. Applying factors under New York law, the court considered whether there was a fee arrangement, a written representation agreement, an informal legal-services relationship, actual representation, and a reasonable belief that the attorney represented the purported client.
The court concluded that Sanford did not meet his burden of showing that Feldman separately represented Sanford or an entity other than Pursuit during the relevant period. Sanford provided no evidence of a fee arrangement or written agreement, did not explain how Feldman represented him separately from Pursuit, and did not provide evidence that he believed during the relevant period that Feldman represented him independently. The court also stated that a person’s unilateral belief does not establish an attorney-client relationship.
The court further held that, even if Sanford had an attorney-client privilege concerning the communications, he waived it by speaking, writing, and testifying extensively about those communications in connection with Feldman’s representation of Pursuit and the penthouse transaction. The court noted that Pursuit’s waiver also defeated any privilege based on a possible common interest in Feldman’s representation of Pursuit.
Order
The court granted in part the motion to compel as to communications between Sanford and Feldman made from October 2015 through February 2016. Sanford was ordered to produce those communications to the plaintiffs by February 26, 2021. If Sanford believed a particular communication concerned Feldman’s representation of Sanford personally or an entity other than Pursuit, he could withhold it and submit it to the court for private review by March 1, 2021.
The court denied the motion as to communications after February 2016 because the request was untimely under the discovery deadline and lacked a sufficient showing of relevance. Judge Denise Cote issued the memorandum opinion and order on February 23, 2021.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.