Landlord Waived Attorney-Client Privilege

A disabled tenant sought permission to keep an emotional support dog. Landlord requested certain medical information. HUD found that landlord constructively denied tenant's request for a reasonable accommodation, in violation of the Fair Housing Act (FHA) and sued landlord for discrimination against tenant and retaliation against tenant's exercise of rights under the FHA. The government sought pretrial questioning of landlord's attorney, and landlord claimed attorney-client privilege prevented this. The court granted the government limited pretrial questioning of landlord's attorney. Landlord's explanation of why it needed extensive medical information to evaluate tenant's accommodation request went to the heart of its defense that it didn't unreasonably deny tenant permission to keep his emotional support dog. Landlord made clear that it relied on its attorney to determine and describe the scope of the medical information needed to respond to tenant's request. This made the attorney landlord's co-decisionmaker. Landlord therefore waived any privilege with respect to information on the responses to tenant's request.

U.S. v. 111 E. 88th Partners: Index No. 16-cv-9466, NYLJ, 9/20/18, p. 21, col. 3 (SDNY; 9/20/18; Parker, MJ)