CG&P won a decision preserving its nursing home client’s privilege over Quality Assurance Records mistakenly provided to plaintiff’s counsel prior to the case’s assignment to the Firm.
Prior to CG&P assuming the defense of its nursing home client, the nursing home’s Quality Assurance records related to an investigation involving the resident at issue was inadvertently disclosed to plaintiff’s counsel. Upon assignment of the case, CG&P asserted a privilege over this very material in two privilege logs. Unbeknownst to the Firm, plaintiff’s counsel was already in possession of the very records over which it asserted a privilege. CG&P only became aware that plaintiff’s counsel was in possession of the records on the eve of its client’s deposition when plaintiff’s counsel attempted to mark the privileged documents as an exhibit. The deposition was stopped, and an immediate application was made for a protective order.
CG&P argued that the records were privileged under Education Law§ 6527(3) and Public Health Law § 2805-m; And that despite the records inadvertent earlier disclosure, the Firm had timely asserted this privilege on two separate occasions. Upon the Court’s in camera inspection of the records, the Court agreed with CG&P’s position that the material constituted privileged Quality Assurance material under the Education Law and Public Health Law. The Court granted CG&P’s motion for a protective order, thus preserving the Quality Assurance privilege. The motion was handled by CG&P Partner, Domingo R. Gallardo.