Xia v. 65 West 87th Street Housing Development Fund Corporation
- Edgardo Ramos
- 1:20-cv-03576
- U.S. District Court · Southern District of New York
- 10
In Xia v. 65 West 87th Street Housing Development Fund Corporation, Judge Ramos held that parts of a recorded call were protected by work product privilege.
The ruling affects Eva Xia and Paul Privitera, the remaining defendants, the housing corporation’s claimed protection over the recording, and Samantha Pinkowitz’s separate protection over one brief portion of the call.
What happened
Xia and Privitera asked the court to review a recorded telephone call between Samantha Pinkowitz and Theodore Pannkoke, an insurance claims administrator, after Pinkowitz produced it in discovery. The call concerned insurance coverage and the potential lawsuit over the denial of Xia and Privitera’s apartment application.
The court found that parts of the call discussed the expected lawsuit and the speakers’ views about its possible merits, rather than only routine insurance coverage. Those parts therefore qualified for protection as work prepared because of expected litigation. The court also found that most of the protection belonged to the housing corporation, not Pinkowitz personally, and that Pinkowitz’s disclosure did not waive the corporation’s protection.
In Xia v. 65 West 87th Street Housing Development Fund Corporation, Judge Ramos ruled that the call was partially protected, identified the protected and unprotected portions in an appendix, and terminated the motion. A brief portion protected only for Pinkowitz was treated as waived and could be produced.
The detailed version
- Xia v. 65 West 87th Street Housing Development Fund Corporation · No. 1:20-cv-03576
- Edgardo Ramos
- Apr. 21, 2021
Background
Plaintiffs Eva Xia and Paul Privitera informed the defendants on March 19, 2020, that they intended to pursue litigation concerning the denial of their application to purchase an apartment unit at 65 West 87th Street. Defendants then contacted AmTrust, the claims administrator for their insurer, Wesco, about potential insurance coverage. Plaintiffs filed suit on May 7, 2020.
Samantha Pinkowitz, who was originally a defendant but was later dismissed, was a shareholder and current board member of the cooperative housing corporation. She recorded a May 18, 2020 telephone conversation with Theodore Pannkoke, an AmTrust claims adjuster. Pinkowitz called to ask about insurance coverage, but the conversation also addressed the potential merits of the lawsuit, including the Fair Housing Act and Plaintiffs’ application. Pinkowitz later produced the recording to Plaintiffs pursuant to a subpoena.
The parties submitted the recording to the Court for an in-camera review, meaning the Court reviewed it privately, to determine which portions were protected from disclosure under the attorney work product doctrine.
Legal Standard
Federal Rule of Civil Procedure 26(b)(3) provides limited protection for material created because of expected litigation when it reveals mental impressions, conclusions, opinions, or theories about that litigation. Material prepared in the ordinary course of business, or material that would have been created in essentially the same form without the expected litigation, is not protected.
When a corporate officer discloses material claimed to be protected for the corporation, the Court examines the circumstances to determine whether the corporation’s protection was waived. Relevant considerations include whether the disclosure was counseled, compelled, or accidental; whether the corporation deliberately placed the material at issue; and whether withholding it would unfairly prejudice the opposing party.
Court’s Analysis
The Court found that the conversation was made because of the prospect of litigation. Pinkowitz had been served with process shortly before the call, and the defendants showed that she reasonably understood litigation to be a threat.
The Court distinguished between routine insurance-coverage discussions and discussions that analyzed the lawsuit itself. It found that much of the call was intertwined with discussion of the Fair Housing Act, the apartment application, and the speakers’ impressions about the potential merits of Plaintiffs’ claims. Those portions were protected work product because they analyzed the expected litigation. Other portions that were limited to insurance coverage were not protected.
The Court further ruled that most of the applicable protection belonged to the cooperative housing corporation. Pinkowitz made the call in her capacity as a board member, the insurance policy was between Wesco and the corporation, and the conversation mainly concerned the claims against the board as a whole. The Court identified one brief portion concerning Pinkowitz’s personal involvement as protected only for Pinkowitz; she waived that protection by disclosing the recording, so that portion could be produced.
The Court found that the corporation had not waived its protection over the other privileged portions. The record did not show that the corporation deliberately disclosed the recording or intentionally put the protected material at issue. Defendants and their counsel did not know about the recording until Plaintiffs informed them that Pinkowitz had produced it. The production also occurred in response to a subpoena directed to Pinkowitz as a third-party witness. The Court additionally found that Plaintiffs had not made a particularized showing of prejudice requiring disclosure.
Disposition
The Court found that the May 18, 2020 conversation was partially protected by the attorney work product privilege. Appendix 1 classified the recording’s segments as privileged, not privileged, or protected only for Pinkowitz and waived by her disclosure. The parties were ordered not to rely on the portions identified as privileged, and the Clerk of Court was directed to terminate the motion, Doc. 77.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.