IDT CORPORATION, plfap, v. MORGAN STANLEY DEAN WITTER & CO. def-res

10313N. IDT CORPORATION, plfap, v. MORGAN STANLEY DEAN WITTER & CO. def-res — Boies, Schiller & Flexner LLP, Armonk (Edward T. Normand of counsel), for ap — Davis Polk & Wardwell LLP, New York (Benjamin S. Kaminetzky of counsel), for res — Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 26, 2012, which granted defendants’ motion for an order precluding evidence to the extent of finding an “at issue” waiver of the attorney-client privilege and work-product protections, and ordered plaintiff to produce several former litigators for deposition, unanimously reversed, on the law, without costs, and the motion denied.

In the remaining fraud claims that were not previously dismissed (see IDT Corp. v. Morgan Stanley Dean Witter & Co., 63 AD3d 583 [1st Dept 2009]), plaintiff alleges that defendant Morgan Stanley fraudulently misrepresented that it had produced all documents responsive to a subpoena served in a prior arbitration proceeding between plaintiff and a third-party, that it reasonably relied on that representation, and that it suffered pecuniary losses as a result of defendant’s fraudulent concealment of additional documents because the arbitration panel would have awarded it greater damages had it been aware of the concealed documents. Defendant sought discovery concerning, among other things, plaintiff’s arbitration counsels’ reliance on its representation that the document production was complete and the litigation strategy plaintiff’s counsel would have pursued had the concealed documents been produced during the arbitration. After plaintiff invoked the attorney-client privilege, defendant brought a motion to preclude, arguing that an “at issue” waiver of privilege had occurred.