Actor Justin Theroux’s Feud With Neighbors Generates Another Weird Privilege Decision

September 29, 2021

In December 2020, a New York court noted that A-list actor Justin Theroux and his downstairs neighbors “do not get along, to put it mildly.” Theroux v. Resnicow, 2020 N.Y. Slip Op. 51489(U), at *2 (N.Y. Sup. Ct. Dec. 16, 2020). In that decision, the court rejected Theroux’s argument that he was entitled to see emails that his neighbor (a lawyer) had sent using the law firm’s server – because the law firm’s personnel policy disclaimed any expectation of privacy. Somewhat surprisingly, the court found that the personnel policy applied only to the law firm’s staff (not its partners such as Theroux’s neighbor).

More recently, in Theroux v. Resnicow, No. 154642/2017, 2021 NYLJ LEXIS 686 (N.Y. Sup. Ct. July 13, 2021), the court gave Theroux a victory – in another odd decision. The defendant neighbor/lawyer claimed privilege protection for his emails with his law firm’s associate and counsel. The court rejected the privilege claim, noting that: (1) “[t]here are no formal indica of an attorney-client relationship”; (2) “[n]o fees were paid”; and (3) neither colleague “has ever appeared on behalf of [defendant] in this action.” Id. at *5. The court added the mysterious additional factor that “[n]or, for that matter, can this court imagine a state of the world in which [defendant’s law firm colleagues] could be subjected to a legal malpractice claim.” Id. The court thus inexplicably rejected a privilege claim – because “a far more junior attorney than [defendant] was simply performing a specific assigned task for him.” Id. at *7-8. Although acknowledging that several emails addressed defendant’s “litigation strategy in this action,” the court did not address a possible work product claim (perhaps defendant did not raise one). Id. at *8.

This Hollywood-like neighbor dispute shows no signs of abating. It will be interesting to see if it generates any more surprising privilege decisions.