Goldzweig v. Consolidated Edison Company of New York, Inc.

Background

On March 17, 2023, the parties contacted the court about a dispute during a deposition. The opinion does not identify the deponent by name. The deponent was asked whether she had concerns about Goldzweig’s job performance. As an example of poor performance, the deponent referred to legal advice Goldzweig had provided to Consolidated Edison in her capacity as an in-house attorney.

Goldzweig’s counsel sought to question the deponent about the reasoning behind that legal advice. Consolidated Edison’s counsel directed the deponent not to answer, invoking attorney-client privilege.

Ruling

The court explained that attorney-client privilege cannot be used both as a shield and a sword. In other words, a party may not rely on protected legal advice in support of its position while simultaneously preventing inquiry into that advice when the opposing party seeks to challenge or examine the same use.

The court ruled that Consolidated Edison could not use Goldzweig’s particular legal advice as an example of poor job performance and at the same time prevent Goldzweig from questioning the deponent about the reasoning behind that advice. The court required Consolidated Edison either to refrain from using that legal advice as an example of poor performance or to permit Goldzweig to question the deponent about the basis for the advice. The opinion states that additional reasons were given on the record, but those reasons are not included in the provided text.

Disposition and Effect

The court entered the order resolving the deposition dispute. It did not state that the attorney-client privilege was generally waived, and it did not decide the ultimate merits of Goldzweig’s job-performance dispute. The order directly affected what Consolidated Edison could rely on during the deposition and what questioning Goldzweig could pursue. The opinion is signed by Jennifer E. Willis, United States Magistrate Judge.