Justice Lawrence Marks

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Third party plaintiffs moved to compel additional discovery from non-party Sterling Jewelers, Inc., specifically, to allow a computer forensic analyst to access Sterling's e-mail servers to recover missing or destroyed communications to produce witnesses for additional deposition and for cost-shifting. Sterling asserted it had entered a common interest and confidentiality agreement with a third party defendant and therefore, the documents sought by third party plaintiffs were subject to the common interest exception to the attorney-client privilege. The court previously ruled that to the extent the common interest exception applied, Sterling had waived it by not asserting it earlier. The appellate division reversed, finding that if the common interest exception applied, it had not been waived. Thus, on remand the court considered whether the exception applied. The court ruled that it did not, finding that the common interest and confidentiality agreement did not specify any common interest or joint legal strategy. The court noted that none of the documents reviewed in camera indicated a non-business reason Sterling did not want to be involved in this case, or that it was concerned about being added as a third party defendant