Moynihan v. City of New York

NEW YORK COUNTY
Civil Practice

New York Law Journal

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Justice Arthur Engoron

New York City moved to quash subpoenas, while nurse Moynihan cross-moved to compel compliance with subpoenas and compel disclosure from the city. Moynihan began a whistleblower action relying on Labor Law §§740 and 741. She subpoenaed attorneys, who now moved to quash the subpoenas, arguing the material sought was protected by attorney-client privilege and the attorney work-product doctrine. Moynihan alleged the Health and Hospital Corp.'s general counsel, Levy, waived a privilege attached to a report as he, after retirement, revealed in a deposition that the report "substantially supported" Moynihan's claims that the city failed to comply with laws. The court found such argument unavailing, noting a former employee could not waive the ex-employer's privilege. It also noted Levy did not evince a casual revelation to outsiders, which often vitiated a privilege. While agreeing with Moynihan that certain documents were material and necessary, the court found they were still privileged, stating communications about illegal acts were still subject to attorney-client privilege if they were not in furtherance of such acts.

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