Bennett v. Cuomo

Background

Charlotte Bennett sued Andrew M. Cuomo, Melissa DeRosa, Jill DesRosiers, and Judith Mogul, alleging sexual harassment, discrimination, and retaliation. During discovery, DeRosa served two document subpoenas on Bennett’s counsel, Debra Katz, and Katz’s law firm, Katz Banks Kumin LLP. The subpoenas sought documents and communications between Bennett and her counsel concerning various events involving Cuomo, Bennett’s workplace, and Bennett’s potential claims.

Bennett asserted that the responsive materials were protected by the attorney-client privilege and/or the work-product doctrine. The attorney-client privilege protects confidential communications between a client and lawyer made to obtain or provide legal advice. The work-product doctrine protects documents and tangible materials prepared because of expected litigation, including an investigation or related litigation in appropriate circumstances.

At the court’s direction, Bennett submitted a privilege log and 11 responsive documents for private review. DeRosa argued that statements Katz made during an interview conducted as part of the New York Attorney General’s investigation had waived the protections. The opinion states that the court did not need to resolve how the interview memorandum was obtained because the parties agreed that the court could review it and did not dispute its contents.

Court’s Analysis

The court held that Bennett had standing to challenge the subpoenas because she was seeking to protect her personal attorney-client privilege. It reviewed the documents individually and found that five documents were protected by the attorney-client privilege. They consisted of text messages concerning preparation for the interview, requests for and provision of legal advice, factual information supplied to help counsel provide legal advice, and legal strategy.

The court also found that nine documents were protected work product. Three text-message chains reflected counsel’s efforts to investigate and gather facts for the Attorney General’s investigation and anticipated related litigation. Five documents prepared by a KBK attorney reflected the attorney’s investigation and mental impressions, conclusions, opinions, or legal theories. The remaining document was Bennett’s email transmitting a chronology of her experiences and alleged harassment, which the court treated as an intake-style document prepared to assist counsel and also as protected work product.

The court rejected DeRosa’s waiver argument. It explained that attorney-client privilege protects communications, not the underlying facts communicated to a lawyer. In the court’s view, Katz’s statements during the interview disclosed facts about Bennett’s experiences but did not disclose Bennett’s confidential communications with counsel, identify those communications, or identify their sources. The statements therefore did not waive the attorney-client privilege.

The court also concluded that no waiver of work-product protection occurred. Katz had not disclosed the work-product communications during the interview. In addition, the Attorney General’s Office was not acting as Bennett’s adversary in that investigation; it was investigating Cuomo’s alleged conduct, and Bennett was among the complainants. The court stated that even if Katz had disclosed work product during the interview, that disclosure would not have waived the protection on these facts.

The opinion notes that the court did not decide whether Katz’s statements waived protection as to subjects for which no responsive documents were found, including Requests 9, 10, 13, 14, and 15.

Disposition

The court granted Bennett’s motion to quash the subpoenas and denied DeRosa’s cross-motion to compel responses. The court directed the clerk to close ECF No. 121. This was a discovery ruling concerning subpoenas and privilege protections; the opinion does not decide the merits of Bennett’s underlying claims.