Accenture L. L. P. v. Computer Sciences Corp.

—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 2, 2001, which granted in part defendant’s motion to compel plaintiff’s production of certain documents, unanimously modified, on the law and the facts, to deny the motion in its entirety, and otherwise affirmed, without costs.

In its April 24th letter, plaintiff expressly conditioned defendant’s pre-production review of 175 boxes of documents on plaintiff’s reservation of the attorney/client and work product privileges. While defendant did not expressly agree to the reservation of privilege in its May 3rd letter, its silence on that obviously important aspect of plaintiff’s proposal was “ ‘deceptive and beguiling,’ ” and therefore should be deemed an acquiescence (see, Russell v Raynes Assocs. Ltd. Partnership, 166 AD2d 6, 15). The existence of an agreement was confirmed by defendant’s remarks in correspondence, upon completing several days of document review, that it expected plaintiff to review the documents “for privilege” (see, Sani Distrihs. v Toyoshima & Co., 27 AD2d 920). The motion court so held, but then *125erred in concluding that defendant validly repudiated the agreement with respect to defendant’s remaining preproduction document review. Since plaintiff had performed by providing the documents and there was no meeting of the minds or consideration for a modification of the agreement, defendant’s attempted unilateral repudiation of the agreement was invalid (see, First Monroe v Regency Manor Assocs., 221 AD2d 1023), and we modify accordingly. Concur — Nardelli, J. P., Williams, Mazzarelli, Lerner and Friedman, JJ.