Bennett v. Cuomo
1:22-cv-07846
S.D.N.Y.Jan 8, 2024Background
- Charlotte Bennett, a former aide to then-Governor Andrew Cuomo, alleges she was subjected to sexual harassment and retaliation during her employment and that senior staff failed to take action.
- Bennett filed a civil suit asserting claims of sex discrimination, retaliation, and aiding and abetting under federal, state, and city law against Cuomo and senior staff (DeRosa, DesRosiers, Mogul).
- In discovery, Defendant DeRosa served subpoenas on Bennett’s counsel, seeking documents and communications between Bennett and her counsel on various topics related to the lawsuit.
- Bennett moved to quash these subpoenas, arguing the requested documents were protected by attorney-client privilege and/or work-product doctrine; DeRosa cross-moved to compel.
- The court reviewed a log of responsive documents and conducted an in camera review, focusing on whether privilege attached and if any waiver had occurred through earlier disclosures by Bennett’s attorney in an OAG interview.
Issues
| Issue | Bennett's Argument | DeRosa's Argument | Held |
|---|---|---|---|
| Whether documents are protected by attorney-client privilege | Documents are confidential legal communications for purpose of seeking/providing legal advice | Counsel waived privilege by disclosing the substance of client communications in a prior OAG interview | Privilege applies; no waiver occurred as only underlying facts, not privileged communications, were disclosed |
| Whether documents are protected by work-product doctrine | Documents were prepared in anticipation of litigation (OAG investigation/civil claims) | Work-product was waived by disclosure to third parties or placed at issue | Work-product doctrine applies; no waiver as no disclosure to adversaries or inconsistent use |
| Whether subpoena should be quashed | All responsive documents are privileged or work-product and thus non-discoverable | Privilege and work-product protections were waived, making documents discoverable | Subpoena quashed; plaintiff’s motion granted, defense motion denied |
| Effect of attorney’s statements in OAG interview on privilege/work-product | Only underlying facts were disclosed, not privileged attorney-client communications or work-product | Disclosure in OAG interview constituted subject-matter waiver | No waiver occurred; disclosures involved only unprivileged facts |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (distinguishing privileged communications from underlying facts; foundational attorney-client privilege case)
- United States v. Int’l Bhd. of Teamsters, 119 F.3d 210 (burden of proving privilege is on the party asserting it)
- United States v. Adlman, 134 F.3d 1194 (scope of work-product doctrine — documents prepared in anticipation of litigation)
- Spectrum Sys. Int’l Corp. v. Chem. Bank, 78 N.Y.2d 371 (New York's standards for attorney-client privilege)
- In re Grand Jury Proceedings, 219 F.3d 175 (waiver of privilege; implied waiver and fairness doctrine)