Whether communications or work product by a third party destroy the privilege enjoyed between attorney and client is a hotly contested issue in litigation, and appraisal is no exception. For instance, the New York Appellate Division recently held that a valuation report created by a third-party consulting firm to appraise the plaintiff’s stock in the company was not protected by attorney-client privilege. The court reasoned that the report was initially not done for legal purposes but rather the consulting firm was hired for the appraisal of assets for estate tax filing before the action commenced. See Galasso v. Cobleskill Stone Products, Inc., 95 N.Y.S.3d 376, 378 (N.Y. App. Div. 2019).
While the issue of waiver of privilege in appraisal often concerns a third party’s valuation of the company, it can foreseeably arise in other contexts, such as a seller’s communications with a public relations firm. For a more detailed discussion of this topic, please see our client alert provided here.