CONSEQUENCE OF NOT SEEKING PROTECTIVE ORDER PROMPTLY

A delay in seeking justice can result in a denial of justice.

ALROSE STEINWAY, LLC v. JASPAN SCHLESINGER, LLP, 2021 NY Slip Op 30620 - NY Co: Supreme Court March 5, 2021:

"CPLR 3103 provides that "[t]he court may ... make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designated to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

Here defendants fail to meet their burden of proving that the attorney-client privilege was not waived. Even assuming that the attorney-client privilege attached to the 2/9 Email, the privilege was waived by defendants' failure to wait until November 27, 2019 to file an OSC seeking a protective order, 10 months after learning of the alleged inadvertent disclosure.

It is the burden of "the proponent of the privilege to prove that the privilege was not waived." (New York Times Newspaper Div. of N.Y. Times Co. v Lehrer McGovern Bovis., 300 AD2d 169, 172 [1st Dept 2002] [citation omitted].) For instance, "[d]isclosure of a privileged document generally operates

as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer under prejudice if a protective order against use of the document is issued."

(Id. [citations omitted] [emphasis added].) Again, "assuming that such a privilege existed, it was waived by the defendants' lack of due diligence." (Koramblyum v Medvedovsky, 19 AD3d 651, 652 [2d Dept 2005] [citations omitted].) After plaintiff refused to return the 2/9 Email, defendants waited an unreasonable 10 months to take any action to remedy the situation. Even after this court expressly welcomed defendants to bring an OSC in March 2019, which they could have filed at any time after learning of the disclosure, still no action was taken to remedy the situation until November 2019. The lack of defendants' due diligence to remedy the disclosure of this document cannot be ignored, and thus, any existing privilege was waived."