Defendants May Depose Plaintiff’s Attorney on Activities Beforehand: eDiscovery Case Law

In Safo v. Singh, No. 19-CV-3779 (VSB) (JW) (S.D.N.Y. July 29, 2025), New York Magistrate Judge Jennifer E. Willis, based on a four factor test, ruled that “Defendants may depose” plaintiffs’ current attorney Dr. Ann Olivarius, but “Defendants may not inquire about Dr. Olivarius’ current representation of the Plaintiffs or any current mental impressions.”

Case Discussion and Judge’s Ruling

In this case involving claims by the plaintiffs of gender-based employment discrimination, Defendants filed a letter motion to compel Plaintiffs to produce Dr. Ann Olivarius for a deposition on January 7, 2025. Defendants sought to depose Dr. Olivarius “on, among other subjects, her non-privileged communications with Plaintiffs and others prior to the formation of an attorney-client relationship, including her communications with donors and others at Mount Sinai concerning Singh and the allegations in the complaint, her purported personal inquiry into Singh, her decision not to proceed with the donation, her meetings with Singh, and her public relations campaign against Singh, Mount Sinai and others—all of which occurred when she admittedly was not acting as Plaintiffs’ counsel.”

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Defendants argue that “repeatedly indicated they will not seek testimony regarding privileged communications between Plaintiffs on the one hand, and Olivarius or her firm on the other”, argued that Dr. Olivarius’ current status as Plaintiffs’ attorney could not shield her from questioning given her knowledge and involvement in the underlying facts, and argued that “Olivarius cannot disavow representation of Plaintiffs prior to March 2019 to stave off a potential disqualification bid while now asserting privilege to escape discovery on that same time-period.”

Among Plaintiffs’ counter was that: 1) “Defendants do not and cannot meet the four-factor standard for deposing opposing counsel, as set forth in In re Friedman”; 2) “Defendants have not shown that Dr. Olivarius’ role in this litigation is so unusual as to warrant a deposition” because the only non-privileged conversation she had was with Dr. Singh; 3) “[w]hatever she recalls of those preliminary conversations with then-potential clients would reveal her mental impressions and legal opinions, which are protected by both work product and attorney-client privilege” and 4) at that time of their January 17, 2025 letter, discovery was mostly concluded and all the individuals Defendants identified in their motion have already been deposed, giving them a full opportunity to explore their questions in those depositions.

Judge Willis stated: “As the Parties’ correctly note, In re Friedman enumerates the factors to consider to determine whether opposing counsel may be deposed: (1) the need to depose opposing counsel; (2) opposing counsel’s role in connection with the sought discovery and overall matter; (3) the risk of encountering privileged discovery during opposing counsel’s potential deposition; and (4) the extent of discovery already conducted.”

So, Judge Willis proceeded to assess the factors on whether Defendants may depose Dr. Olivarius, as follows:

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1. “This Court finds that factor one weighs in favor of deposing Dr. Olivarius. While Plaintiffs argue any information regarding Dr. Olivarius can be obtained through other depositions, Defendants note that the extent of Dr. Olivarius’ investigation and the identities of whom she spoke to prior to becoming counsel is still unknown…Defendants’ will only know the full details of Dr. Olivarius’ investigation—which Defendants’ contend led to this litigation—by obtaining that information directly from her.”
2. “Factor two also weighs in favor of deposing Dr. Olivarius. Here, both Parties agree that Dr. Olivarius, in her capacity as a potential donor prior to being retained as Plaintiffs’ counsel, met with Defendant Singh twice just days before an internal complaint was filed against him…Defendants also note that one of the former Plaintiffs testified that she met with Dr. Olivarius before she filed an internal complaint against Defendant Singh…Defendants further note that another witness described that “the internal investigation and ensuing months were the start of a ‘cascade of events [Olivarius] helped usher in.’ ” …While Plaintiffs claim “Dr. Olivarius has no personal knowledge as to why the [Arnhold Institute for Global Health (‘AIGH’)] internal investigation started or the underlying discriminatory conduct at issue in this litigation,” there are allegations and there is deposition testimony concerning Dr. Olivarius’ involvement, for nearly a year, as a fact witness. This warrants questioning.”
3. “Factor three also weighs in favor of deposing Dr. Olivarius. In 2019, Plaintiffs’ counsel made multiple clear representations to Judge Broderick that, during the time of these events, Dr. Olivarius was not acting as an attorney for former Plaintiffs Drs. Atkinson and Anandaraja…Most significant, Plaintiffs’ counsel represented to Judge Broderick that none of the six factors for determining an attorney-client relationship could be satisfied at the time of those events…Despite those representations, astonishingly, Plaintiffs now claim that Dr. Olivarius ‘had preliminary discussions about her engagement [as Plaintiffs’ attorney] before [March 2019] and she had been considering the dispute since the conclusion of the 2018 investigation.’…Plaintiffs cannot change their stance of whether Dr. Olivarius was acting as, or in anticipation of becoming, Plaintiffs’ attorney to now argue her recollection of those events is privileged. Doing so would, one way or another, create serious concerns that Plaintiffs’ counsel made deliberate omissions or misrepresentations to the Court. Taking their initial representations as true, there is little risk that questioning Dr. Olivarius about the events before she became Plaintiffs’ counsel will encounter privileged information.”
4. “Lastly factor four weighs neither in favor of nor against allowing the deposition of Dr. Olivarius… Here, while significant discovery has taken place, Defendants moved to compel the deposition before the deadline of fact discovery. Moreover, expert discovery has not yet closed and the Parties each have three outstanding discovery disputes that are the subject of this order. Thus, while significant discovery has taken place, much more discovery is likely still to come.”

As a result, Judge Willis stated: “Considering all four factors, this Court concludes that Defendants may depose Dr. Olivarius. Therefore, Defendants’ motion to compel the production of Dr. Olivarius is GRANTED. However, Defendants may not inquire about Dr. Olivarius’ current representation of the Plaintiffs or any current mental impressions.”

So, what do you think? Are you surprised the Court ruled that Defendants may depose Dr. Olivarius? Please share any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Michael Berman for his previous coverage of the case here!

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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