Attorney communications with insurer absolutely immune from disclosure pursuant to the attorney-client privilege; Appellate Division reverses order compelling disclosure

VGFC Realty II, LLC v. D'Angelo, ___ A.D.3d ___ (2nd Dep't 2014)

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The Appellate Division, Second Department, reversed an order of a motion court which had compelled a defendant insurer to disclose documents that the insurer claimed were subject to privilege.

The insurer asserted attorney-client privilege in regard to communications between it and its attorney from whom it had sought legal advice and guidance. The insurer had also, separately, retained an investigator to investigate the facts and circumstances of the claim. These reports of the investigator were produced by the insurer pursuant to a discovery order, in their entirety. However, it asserted privilege over documents that were legal in nature, involving advice and opinions of the attorney offered in the course of the insurer's consideration of the claim. The motion court had directed that they be disclosed.

In reversing the lower court's decision, the unanimous panel agreed that, "[t]he subject documents, which were submitted to the Supreme Court for in camera review, were primarily and predominantly legal in nature, and were made in order to render legal advice or services."

AGF&J partner Alexandra E. Rigney briefed and argued the appeal.