Extract from Doug Austin’s article “Privilege Waived for Documents When Former Clients Failed to Assert It”
In the case In re Orion HealthCorp, Inc., No. 18-71748 (AST), Adv. Pro. 22-08008 (AST) (Bankr. E.D.N.Y. Dec. 6, 2022), New York Bankruptcy Judge Alan S. Trust ruled that privilege was waived for documents (for which the defendant law firm asserted privilege) when the former clients failed to assert privilege themselves.
Case Discussion
This specific dispute in a series of long-running disputes centered around the Plan Trustee’s requests for production of documents from the defendant, the law firm of Kriss & Feuerstein LLP (“K&F”). K&F timely asserted attorney-client privilege in response to portions of the production request and provided privilege logs on a rolling basis as its review continued. The Plan Trustee timely challenged the assertion of privilege on a variety of grounds.
Over several months, the dispute was narrowed by the parties to 703 documents (“Challenged Documents”). In June 2022, the Court established a protocol to resolve the privilege dispute where K&F was to file with the Court: (i) a list identifying the name and last known address of each client that K&F represented in connection with the transactions referenced in the Complaint, along with any retention agreement with respect to any and all Former K&F Clients; and (ii) revised privilege logs identifying the Former K&F Clients involved in each of the Challenged Documents.
