FFS Data Corp. v OLB Group, Inc.

2024 NY Slip Op 30854(U)

March 15, 2024

Supreme Court, New York County

Docket Number: Index No. 653247/2022

Judge: Joel M. Cohen

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 281 

SUPREME COURT OF THE STATE OF NEW YORK 

INDEX NO. 653247/2022 

RECEIVED NYSCEF: 03/15/2024 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M 

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FFS DATA CORPORATION, 

Plaintiff, 

- V -

THE OLB GROUP, INC., 

Defendant. 

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HON. JOEL M. COHEN: 

INDEX NO. 65324 7 /2022 

MOTION DATE 02/01/2024 

MOTION SEQ. NO. 018 

DECISION+ ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 018) 205,206,207, 208, 

209,210,211,212,213,214,215,216,217,218,219,220,221,222,223,224,225,226,227,247, 

248,256,257,258,259,260,261,262 

were read on this motion for DETERMINATION THAT DOCUMENTS ARE NOT 

"PROTECTED INFORMATION" 

PlaintiffFFS Data Corporation ("FFS") moves for an Order ruling that certain exhibits 

produced by third party Manuel Sanchez in this action do not constitute "Protected Information" 

(i.e., documents protected from disclosure pursuant to CPLR 3101(c), 3101(d)(2) and 4503) 

under paragraph 17 of the Stipulation and Order for the Production and Exchange of Confidential 

Information (the "Protective Order") entered on June 1, 2023 (see NYSCEF 105). 

As relevant here, The Global Legal Law Firm ("Global Legal")-counsel for Defendant 

OLB Group, Inc. ("OLB") in this case- is asserting attorney-client privilege over documents 

produced over six months ago by a third party named Manuel Sanchez, whom Global Legal 

subpoenaed in this matter on OLB' s behalf (the "Sanchez Production"). 

Global Legal submits that it has represented Mr. Sanchez and his company Merchant 

Payment Solutions, LLC ("MPS") for over three years in a number of litigation and transactional 

matters. According to Global Legal, that included the dual representation of both Mr. Sanchez 

653247/2022 FFS DATA CORPORATION vs. THE OLB GROUP, INC. 

Motion No. 018 

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NYSCEF DOC. NO. 281 

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RECEIVED NYSCEF: 03/15/2024 

and MPS, on the one hand, and OLB, on the other hand, in attempting to resolve a dispute 

among them. Global Legal also submits that it represented Mr. Sanchez in producing documents 

in response to the subpoena duces tecum Global Legal served on him in this case on June 2, 

2023, and in defending his deposition on September 15, 2023 (NYSCEF 256 ["Huber Affirm"] 

Global Legal did not review Mr. Sanchez's first production of documents prior to 

producing it to FSS in July 2023 because it did not believe the Sanchez Production would 

contain any attorney-client privileged information (Huber Affirm ,J,Jl2-13). FFS introduced 

certain documents from that production, without objection, at Mr. Sanchez's deposition in 

September 2023 (NYSCEF 214). Separately, in January 2024, FFS's counsel filed a motion to 

dismiss a related action in Hawaii federal court filed by Global Legal on behalf of MPS. That 

motion relied on certain exhibits from the Sanchez Production, specifically Exhibits 5-9 to the 

Hawaii Declaration (the "Five Exhibits," NYSCEF 222, Ex. 5, 6, 7, 8, 9]). 

Thereafter, in this case, Global Legal asserted attorney-client privilege over the Sanchez 

Production, including the Five Exhibits. FFS' s instant request concerns only the Five Exhibits. 

For the following reasons, Plaintiffs motion is granted. 

"The attorney-client privilege shields from disclosure any confidential communications 

between an attorney and his or her client made for the purpose of obtaining or facilitating legal 

advice in the course of a professional relationship" (Ambac Assur. Corp. v Countrywide Home 

Loans, Inc., 27 NY3d 616, 623 [2016], citing CPLR 4503[a][l]). "Although typically arising in 

the context of a client's communication to an attorney, the privilege extends as well to 

communications from attorney to client." (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 

371,377 [1991]). Such communications "'must be made for the purpose of facilitating the 

653247/2022 FFS DATA CORPORATION vs. THE OLB GROUP, INC. 

Motion No. 018 

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rendition of legal advice or services, in the course of a professional relationship"' (Rossi v Blue 

Cross & Blue Shield of Greater NY, 73 NY2d 588, 593 [1989], citing Matter of Creekmore, l 

NY2d 284,296 [1956]). "[T]he burden of establishing any right to protection is on the party 

asserting it; the protection claimed must be narrowly construed; and its application must be 

consistent with the purposes underlying the immunity" (Spectrum Sys., 78 NY2d at 377). 

Here, even assuming that Global Legal represented Mr. Sanchez and MPS in various 

matters since 2020, Global Legal has failed to demonstrate that it represented Mr. Sanchez or 

MPS in their negotiations with OLB, which is the subject of the Five Exhibits at issue. In that 

context, Mr. Sanchez was inquiring about OLB's outstanding payment ofMPS's January 2023 

residual. The documents are commercial communications, not requests for legal advice. 

Moreover, Global Legal took pains to distance itself from representing Mr. Sanchez in 

the discussions with OLB. Mr. Sanchez sent a February 28, 2023 email to Global Legal making 

what appears to be his first request to recover this residual payment from OLB. Global Legal 

responded: "We represent OLB regarding this whole dispute. Therefore, we would have a 

conflict. But we are happy to provide the role of honest broker to help you get down on the 

situation." (NYSCEF 224 [emphasis added]). Following this email, Mr. Sanchez's subsequent 

emails demanding payment from OLB-the Five Exhibits-at most reflect Mr. Sanchez's 

requests for assistance obtaining payment from Global Legal's client, OLB. Furthermore, in 

those emails, Global Legal again reiterated that it had a potential conflict of interest with its 

representation of OLB (see NYSCEF 222, Ex. 7 [Mr. Huber telling Mr. Sanchez he would 

mention the outstanding January 2023 commission to OLB, noting that Global Legal was "in a 

potential conflict though so can't push too hard"]; Ex. 8 [Mr. Huber telling Mr. Sanchez that 

"[u]nfortunately, [Global Legal] can't put [itself] in th[e residual] dispute too heavily"]). 

653247/2022 FFS DATA CORPORATION vs. THE OLB GROUP, INC. 

Motion No. 018 

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RECEIVED NYSCEF: 03/15/2024 

Global Legal does not deny that it represented OLB in connection with these 

communications, whose interests at that time were clearly adverse to Mr. Sanchez. Under 

similar facts, the First Department affirmed an order holding such communications are not 

privileged and must be produced (Gottwald v Geragos, 205 AD3d 417,417 [1st Dept 2022] 

["The emails between [defendant] and an attorney representing a third party are not privileged as 

their substance was clearly in connection with the attorney's representation of the third party, 

whose position at that time was adverse to defendants."] [ citations omitted]). 

In sum, Global Legal has not established that any of the Five Exhibits were made "for the 

purpose of facilitating the rendition of legal advice or services, in the course of a professional 

relationship" between Mr. Sanchez and Global Legal. This Decision does not address the 

remaining documents listed in Defendants' privilege log, as no motion was made with respect to 

those documents. 

Accordingly, it is 

ORDERED that Plaintiffs motion is GRANTED, and the Five Exhibits are determined 

not to be Protected Information for purposes of the Protective Order. 

This constitutes the Decision and Order of the Court. 

3/15/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

653247/2022 FFS DATA CORPORATION vs. THE OLB GROUP, INC. 

Motion No. 018 

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JOEL M. COHEN, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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