In 1997, the New York Court of Appeals decided Sage Realty v. Proskauer Rose Goetz & Mendelsohn,1 recognizing a narrow category of documents within an attorney’s files as to which the law firm, rather than the client has a privacy interest and to which the client does not have a right of access. Although the limits of that protection have been infrequently tested and its scope is not well-defined, attorneys in New York have come to rely on Sage Realty for the notion that certain internal law firm documents are generally protected from disclosure. A recent decision by Southern District Judge Paul G. Gardephe in Gruss v. Zwirn rejects the notion that this “law office” protection extends to an attorney’s witness interview notes and serves as a reminder that the zone of protection for a lawyer’s own records carved out by Sage Realty is a narrow one.
‘Sage Realty’
Sage Realty involved a claim by Sage Realty against its former attorneys, asserting that the law firm had improperly withheld documents from the file the client had directed be turned over to successor counsel. The firm had represented Sage Realty in connection with extensive real estate financing transactions. In response to Sage Realty’s request that its file be turned over to new counsel, the firm declined to provide certain internal documents, such as “drafts, internal memoranda, mark-ups, research and other internal documents containing the opinions, reflections and thought processes of counsel,” asserting that such documents were the law firm’s property.2
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