Opinion
12471N Index No. 100530/11 Case No. 2020-1959
11-24-2020
Steven R. LEVENTHAL, etc., Plaintiff–Appellant, v. BAYSIDE CEMETERY et al., Defendants-Respondents, Community Association for Jewish At-risk Cemeteries, Inc., et al., Defendants. Cleary Gottlieb Steen & Hamilton LLP, Nonparty Respondent.
Motley Rice LLC, New York (Michael M. Buchman of counsel), for appellant. Axinn Veltrop & Harkrider LLP, New York (Russell Steinthal of counsel), for Bayside Cemetery and Congregation Shaarde Zedek, respondents. Cleary Gottlieb Steen & Hamilton LLP, New York (Evan A. Davis of counsel), for Cleary Gottlieb Steen & Hamilton LLP, respondent.
Motley Rice LLC, New York (Michael M. Buchman of counsel), for appellant.
Axinn Veltrop & Harkrider LLP, New York (Russell Steinthal of counsel), for Bayside Cemetery and Congregation Shaarde Zedek, respondents.
Cleary Gottlieb Steen & Hamilton LLP, New York (Evan A. Davis of counsel), for Cleary Gottlieb Steen & Hamilton LLP, respondent.
Friedman, J.P., Manzanet–Daniels, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about July 31, 2019, which granted nonparty respondent's motion to quash plaintiff's subpoena for attorney time records, unanimously affirmed, without costs.
Plaintiff seeks production of presumptively privileged attorney time records (see Matter of Peerenboom v. Marvel Entertainment, LLC, 160 A.D.3d 439, 440, 75 N.Y.S.3d 131 [1st Dept. 2018] ) from a nonparty law firm on the belief that if there are no attorney billable time entries on dates when defendants have logged a communication as privileged, it is evidence that the communication was made in connection with the attorney's purported business, and not legal, representation. "While discovery should be liberal, the information sought must be material and necessary, and meet a test of usefulness and reason" ( AQ Asset Mgt. LLC v. Levine, 138 A.D.3d 635, 636, 31 N.Y.S.3d 32 [1st Dept. 2016] [internal quotation marks omitted] ). The party seeking an attorney's legal bills must establish their relevance ( Randall Co. LLC v. 281 Broadway Holdings LLC, 132 A.D.3d 452, 17 N.Y.S.3d 636 [1st Dept. 2015] ), and "[h]ypothetical speculation calculated to justify a fishing expedition" is improper ( AQ Asset Mgt. 138 A.D.3d at 636, 31 N.Y.S.3d 32 [internal quotation marks and brackets omitted] ).
Here, plaintiff's assumption that attorney time records would ferret out presumptively nonprivileged documents is entirely speculative. This is particularly so when the law firm was representing defendants without any expectation of or intent to seek payment. Moreover, as we noted in a prior appeal, plaintiff's only remaining cause of action is to enforce a charitable trust ( 114 A.D.3d 162, 175, 979 N.Y.S.2d 8 [1st Dept. 2013], lv denied 24 N.Y.3d 901, 2014 WL 4357433 [2014] ), which provides no independent basis for their production.