Opinion
XXXXX
07-10-2019
C.C., Plaintiff, v. D.D., Defendant.
Elliot Wiener, Esq. and Athena Maria Mihalos, Esq. from Phillips Nizer LLP for Plaintiff Defendant was pro se Child 1 is represented by Susan Bender, Esq Other children are represented by Daniel Lipschutz, Esq.
Elliot Wiener, Esq. and Athena Maria Mihalos, Esq. from Phillips Nizer LLP for Plaintiff
Defendant was pro se
Child 1 is represented by Susan Bender, Esq
Other children are represented by Daniel Lipschutz, Esq.
Douglas E. Hoffman, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 155, 158, 207 were read on this motion to/for MISCELLANEOUS.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 148, 149, 150, 151, 152, 153, 154, 156, 161, 162, 163, 164, 165, 166, 167, 168, 194, 195, 196, 197, 198 were read on this motion to/for SANCTIONS.
The parties in this matrimonial action are currently married and have three children: O.* (thirteen years old), P. (twelve years old), and Q. (six years old). O. is represented by Attorney for the Child Susan Bender, Esq. P. and Q. are represented by Daniel Lipschutz, Esq. At the start of the action, and when motion sequence 003 was first filed, both parents were represented by counsel. Defendant has since become pro se.
Parties, children's, and affected persons' names were changed to fictitious initials, in accordance with New York Law Reports Style Manual § 12.4(a)(1-3).
Defendant Husband D.D. ("Husband" or "Father"), first with his counsel, and then pro se , filed motion sequence 003 seeking removal of the Attorney for Child O., Ms. Bender, and removal of the court-appointed forensic evaluator, William Kaplan, M.D. Defendant Husband filed this motion following receipt of the forensic report from Dr. Kaplan, and a subsequent request by Ms. Bender to hire her own expert to help her evaluate whether it would be necessary to make certain emergency applications on behalf of her client, based on concerns raised in Dr. Kaplan's report. Defendant's motion then sought the "immediate" removal of Ms. Bender as that child's attorney, and suggested a specific replacement attorney for the child, sought removal of the forensic evaluator Dr. Kaplan, striking his report, ordering a "disgorgement" of fees paid to him and to Ms. Bender, suggested a specific replacement forensic evaluator, and sought to refer several attorneys in the case to the "disciplinary authorities." Defendant's motion cited portions of emails between Plaintiff Wife C.C. ("Wife" or "Mother") and her own attorneys, without Defendant fully explaining how he accessed these emails. At first, Plaintiff Wife's attorneys requested that the court not read the privileged emails, and urged the court not to waive her privilege. All sides then briefed the issue of whether the emails were privileged under the alleged circumstances. At the next court appearance, in large part because Defendant Husband continued to quote and cite portions of the May 7, 2018, May 31, 2018, November 1, 2018, and November 8, 2018 Wife's emails in his submissions, Plaintiff Wife's counsel consented to the submission of these specific emails to the court "in camera ," as long as the submission would not be considered as a general waiver of Wife's privilege and provided further that movant Husband agreed not to seek the undersigned's recusal in the future on the basis that the undersigned reviewed the emails. [NYSCEF doc. 207, March [redacted by the court], 2019 Tr. 3:6-6:22, 9:15-11:13]. Upon everybody's consent, the May 7, 2018, May 31, 2018, November 1, 2018, and November 8, 2018 emails were received, and Defendant Husband's motion (seq. 003) was filed. Subsequently, both parties cited and attached these emails to their moving papers, not under seal (other than the general access restrictions applicable to all matrimonial filings in this court, pursuant to D.R.L. § 235(1) and N.Y.C.R.R. § 202.5-b(k)(1)), and adhered to the consent not to include any other emails.
The court notes that Father sent an email to the court, copying all counsel, on June 28, 2019, offering to withdraw all relief sought in his motion sequence 003, except for his request that the court vacate the order allowing Ms. Bender to hire Dr. Sigalow as her consulting expert, and assuming that a proposed [but not yet scheduled] custody trial is not delayed by the mother's side. The court responded to Mr. D.D., also copying all counsel, "Please upload to NYSCEF, as a Letter to the Court, exactly which branches of motion sequence 003 (NYSCEF doc. 127, relief sought on pages 1-2) you are withdrawing, by letter (for example: I withdraw (a), (b), .. Please list each letter separately.) Please note that we cannot accept a withdrawal conditioned on some other agreement, only a ‘clean’ withdrawal of any of the branches of the motion. Justice Hoffman will issue decisions and orders regarding remaining branches/motions expeditiously. All sides should note that the court may well order an updated forensic evaluation to be conducted on an expedited basis, the receipt of which report will play a major role in the timing of the custody trial." [July 1, 2019 email.] As of the date of this decision, although Mr. D.D. has sent a follow-up email offering a "conditional" withdrawal, Mr. D.D. has not filed a letter withdrawing any portions of his motion, and the court is not considering his "conditional" emails as a withdrawal.
During the time period when privilege of the emails was first briefed, Husband discharged his attorney, R. Kenneth Jewell, Esq., who was then relieved by the Court on consent. Thereafter, Defendant became pro se. Defendant is an attorney, admitted in the State of New York, although it appears that he may have allowed his Judiciary Law § 468-a bi-annual registration to lapse. Nevertheless, at the time that Mr. Jewell was relieved, and at numerous court appearances thereafter, the court advised Husband in detail of his right to counsel, strongly encouraged him to retain counsel, and offered to stay or adjourn the case to provide him sufficient time to do so. According to each party's statements, each party's income from their joint business during the year of commencement was in the seven figures, and therefore, the court could not assign counsel for Husband pursuant to Article 18-B, § 722-c of the County Law, and Judiciary Law § 35, or to seek volunteer counsel through the New York Women's Bar Association Pro Bono project, which sometimes provides up to 25 hours of pro bono service to indigent matrimonial litigants on financial or other issues. At all court appearances to date, Husband has stated that he will continue pro se at this point and does not want a stay or an adjournment.
At the June [redacted by court], 2019 court appearance, Husband acknowledged receiving out-of-court advice from new counsel.
Plaintiff's counsel cross-moved (seq. 004) for sanctions, stating, in pertinent part, that Defendant's motion sequence 003 is a gross and erroneous misreading of Plaintiff's attorney-client-privileged emails that Defendant Husband improperly retrieved, accessed, read, and printed over at least several days, and which emails showed absolutely no wrongdoing on the part of any of the professionals or Plaintiff Wife, and that there has not been any such alleged wrongdoing. Specifically, Wife's motion sought the following nine categories of relief related to Husband's retrieval and use of Wife's emails:
1. Pursuant to CPLR Articles 31 and 45, precluding [Defendant's] use of emails retrieved, possessed, accessed, viewed, copied, printed or forwarded by any means from Plaintiff's email account ("[Wife's] Emails");
2. Dismissal of Defendant's custodial and financial claims in this action;
3. Pursuant to 22 NYCRR § 130-1.1, directing Defendant to reimburse Plaintiff for actual expenses reasonably incurred and reasonable attorney's and experts' fees related to [motion sequence 003 and 004, including related appearances and memoranda of law];
4. Pursuant to 22 NYCRR § 130-1.1, imposing financial sanctions against Defendant and [his prior counsel] R. Kenneth Jewell, Esq.;
5. Granting Plaintiff discovery with respect to the emails that Defendant acquired from [Wife's] Emails;
6. Directing that, within 3 days [of the final order on this motion], Defendant and R. Kenneth Jewell, Esq.:
a. Identify to Plaintiff and the Court all e-mails, communications or other documents that Defendant retrieved, possessed, accessed, viewed, copied, printed or forwarded to any person or email account including himself and his prior counsel, R. Kenneth Jewell, Esq. ("Mr. Jewell"), by any method and using any equipment or device during the period of January [redacted by the court], 2018 to date;
b. Identify to Plaintiff and the Court all persons or email accounts to whom or which Defendant forwarded or provided copies of [Wife's] Emails;
c. Identify to Plaintiff and the Court which, if any, of [Wife's] Emails Mr. Jewell received, possessed, accessed, reviewed, copied, printed or forwarded to any person by identifying (i) the name and position of each attorney or employee of Mr. Jewell who received, possessed, accessed, reviewed, copied, printed or forwarded any of [Wife's] Emails; (ii) which of [Wife's] Emails such attorney or employee of Mr. Jewell received, possessed, accessed, reviewed, copied, printed or forwarded; (iii) the date such attorney or employee of Mr. Jewell received [Wife's] Emails; and (iv) the person or email account from whom or which such attorney or employee of Mr. Jewell received [Wife's] Emails, whether from an external or internal source at Mr. Jewell's law firm;
d. Identify to Plaintiff and the Court which, if any, of [Wife's] Emails Mr. Jewell has forwarded to any person or email account, by identifying (i) the name and position of the attorney or employee of Mr. Jewell who forwarded any of [Wife's] Emails; (ii) which of [Wife's] Emails such attorney or employee of Mr. Jewell forwarded; (ii) the date such attorney or employee of Mr. Jewell forwarded [Wife's] Emails; and (iv) each person or email account to whom or which [Wife's] Emails were forwarded;
e. Provide access to any and all, personal and business, computers, mobile devices, and external hard drives owned or controlled by Defendant (including but not limited to providing usernames and passwords necessary to access such devices) ("Defendant's Devices") so as to permit a forensic investigator to determine whether any of [Wife's] Emails exist on any of Defendant's Devices and to determine whether [Wife's] Emails were opened, read, forwarded, and if forwarded, to whom; and
f. Return all copies of [Wife's] Emails to Plaintiff.
7. Directing that Defendant and/or R. Kenneth Jewell, Esq., produce the following documents within 3 days:
a. All documents reflecting communications between Defendant and Mr. Jewell from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.;
b. All documents reflecting communications between Defendant or Jewell, on the one hand, and any other person or entity from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation, Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.;
c. All telephone records, notes, diaries, journals and calendars created by Defendant from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation, Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.;
d. All of Mr. Jewell's billing records and time entries relating to its representation of Defendant in this action from January [redacted by the court], 2018 to the present;
e. All documents reflecting communications between or among any attorney or employee of Mr. Jewell from January [redacted by the court], 2018 to the present relating, directly or indirectly, to [Wife's] Emails or the subject matter of [Wife's] Emails, including, without limitation, Dr. Kaplan, Susan Bender, Esq., Elliot Wiener, Esq., or Athena Mihalos, Esq.; and
f. All documents, including, without limitation, all emails, memoranda, and notes, concerning (i) Mr. Jewell's analysis of his duties with respect to [Wife's] Emails; (ii) all courses of action considered by Mr. Jewell with respect to [Wife's] Emails; (iii) any actions taken by Mr. Jewell with respect to any attorney or employee who received, possessed, accessed, reviewed or forwarded any of [Wife's] Emails, including, without limitation, any decision to reprimand or discipline any attorney or employee of Mr. Jewell.
8. Directing that Defendant and R. Kenneth Jewell, Esq., appear at the offices of [Wife's attorneys] Phillips Nizer LLP, 485 Lexington Avenue, New York, New York for depositions concerning [Wife's] Emails on or before June 1, 2019.
9. Directing Defendant to pay Plaintiff's counsel and expert fees related to discovery with respect to the emails that Defendant copied from Plaintiff's email account.
Plaintiff Wife's motion sequence 004 [NYSCEF doc. 148].
Defendant Husband then filed a Notice of Cross Motion [NYSCEF doc. 167] to that cross-motion, contrary to Part Rules and the CPLR, seeking an order directing attorneys for Wife and both attorneys for the children to produce e-mail correspondence between themselves and/or Dr. Kaplan, and for Wife's attorneys to submit unredacted invoices. These combined motions (003, 004, and Husband's purported cross-motion to Wife's cross-motion) together comprise over forty documents on NYSCEF, not including voluminous briefing regarding the issue of attorney-client privileged communications. Husband has, in the meantime, accused all others of slowing down the case, driving up the costs of the case, and preventing a resolution of the case. Husband has also apparently met with an outside group, which has since written about this case, including about the children, on its public FaceBook website, and sought the court's permission to videotape all court proceedings and broadcast them on www.youtube.com. Husband has supported this group's application to videotape and broadcast, as long the caption of the case is changed to anonymous and the children's actual names are not used in open court. Wife and both attorneys for the children strenuously opposed this request. As part of the court's June 27, 2019 decision [NYSCEF doc. 201, 202], the court denied this video-taping request, as prohibited in large part by Civil Rights Law § 52, and pursuant to 22 NYCRR part 131, 22 NYCRR § 29.1(a), and NY Ct. Rules § 29.1(a) because it would not be in the children's best interest since anonymity cannot be guaranteed, and because the parties' and attorneys' focus in court cannot be diverted from the children's complex and emerging mental health needs and towards the complicated "anonymity" protocol proposed by Husband, and therefore, pursuant to Section 29.1, proposed videotaping and broadcasting would likely detract from the dignity and decorum of the courtroom, result in a disruption of court activities, and be against the best interests of the children and compromise their safety and the safety of other participants. See C.C. v. D.D. , 2019 NY Slip Op. 29193, 2019 WL 2707622 (June 27, 2019). The court continues towards the goal of assisting all parties to resolve the case, either through settlement or an expeditious trial.
ANALYSIS
Throughout the voluminous submissions, there is no evidence of any wrongdoing by either the Wife's attorneys, Wife, or attorneys for the children. In the appointment orders for the attorneys for the children, the court directed the parties' counsel to forward to the then-newly-appointed attorneys "copies of all papers in the action/proceeding, including pleadings, motions and prior orders." [NYSCEF doc. 131, May [redacted by the court], 2018 Order Appointing Attorney for the Child, at 3]. The order also directed the parties to "reach out to each of the Attorneys for the Children so that they could meet with their clients [the children] before the next court date." Id. Ms. Bender thereafter received previously-filed court documents from each side, spoke with the attorneys, and then met with the parties (together with their then-attorneys), received signed HIPAA forms from the parents that would allow Ms. Bender to speak with her client's various professional providers, and then met with her client, all in less than one month. [NYSCEF doc. 130, Bender Affir., at 3-4]. Ms. Bender received filed court documents from both parties' counsel (as was directed by the court), and apparently, some forwarded Mother-Father emails from Father's attorneys [NYSCEF doc. 139, Bender Aff., Ex. I] (which is also not forbidden, even if not required by the appointment order).
The court notes that, at the outset of the case, given both parents' initial statements about O. and his [redacted by the court] health needs, the court, on consent of both sides, appointed one attorney for O., and a separate attorney for V. and D., to avoid the possibility of a risk "down the road" that if all three children would have been assigned one attorney from the start, of a conflict arising that would prevent that attorney from continuing to represent the children. Ms. Bender has only been O.'s attorney.
There is no basis to support Defendant's allegation that Ms. Bender "reviewed and commented on [Wife's] affidavit instead of doing her duty by O." [NYSCEF doc. 127, Jewell Affir. ¶67]. There are no emails showing that a draft affidavit was ever sent to Ms. Bender, there are no emails of any comments from Ms. Bender, and both Ms. Bender and Wife's attorneys have denied that any such draft had ever been sent or commented on by Ms. Bender in their affirmations. Husband's papers do not provide anything other than the unsupported allegation above.
Husband attaches an email where Wife's attorneys and Wife discussed the possibility of sending the Wife's draft opposition [on motion sequence 001] to Ms. Bender when she was first appointed, and when she received Husband's voluminous motion papers. [NYSCEF doc. 128 at 7, Jewell Affirm. ¶3]. Husband alleged that Wife wanted to send the draft "for Ms. Bender to review and comment upon" [id. ¶4, ¶36-7, ¶53, ¶56, ¶¶59-61], even though he does not attach or cite to any email either sending a draft, asking for comments, or even talking about asking for comments, let alone receiving comments. As Wife's attorney Mr. Wiener explained, he never actually sent a draft, and instead waited until Wife's affidavit and opposition were in final form and filed, and only then sent it to Ms. Bender; he only considered sending a draft to get the Wife's point of view in front of Ms. Bender, who at that point only had the Husband's papers, but in the end, decided against rushing to send an unfinished draft. [Wiener Affir. at 7-8, NYSCEF doc. 143]. Wife and her attorneys never asked or even contemplated asking for Ms. Bender to either review or comment on the draft, as alleged by Husband, and there is nothing to suggest otherwise. [Id. ] Even if Wife's attorneys had shared their client's draft affirmation with Ms. Bender (of which there is no evidence whatsoever), that would not be inherently improper, and would be similar to sending any other email, letter, or verbal statement from one side to the Attorney for the Child, as did happen in this case: Father and his attorneys did send numerous emails to Ms. Bender. [NYSCEF doc. 130, Bender Affir. ¶15; NYSCEF doc. 139, Bender Affir. Ex. I].
Husband also quotes another email from Wife's attorneys to Wife, regarding Ms. Bender, stating, "Are we waiting for [Ms. Bender's] response. We've asked several times without a response. Our response is hostage to her response." [NYSCEF doc. 128 at 18, Jewell Affir. ¶48]. The rest of the email [id. at 210-1] makes it clear that Wife's attorneys were asking for Ms. Bender's permission before Wife forwarded to Dr. Kaplan an email that Ms. Bender had sent to all counsel (in which she stated "[Husband's] version of what I represented in Court is a serious mischaracterization. If [Husband] fails to correct his email to Dr. Kaplan then I will ask the Court for permission to send the transcripts to Dr. Kaplan"), and therefore, Wife and her attorneys were waiting for Ms. Bender's permission before forwarding that email. Nevertheless, Husband quotes the use of the words "hostage to her response" throughout his papers, alleging that Wife's attorneys are doing something more nefarious than waiting for Ms. Bender's permission before Wife forwards to Dr. Kaplan the email written by Ms. Bender, even though the "hostage" email is clear why that word was used. None of the emails attached to Husband's motion stand for the nefarious propositions for which they are cited. In one way or another, they are considerations and advice from Wife's counsel regarding proposed communications in this custody case, with no evidence of impropriety.
Husband also alleges, without Husband providing a basis for his allegations, that Ms. Bender either improperly substituted judgment or acted as Wife's attorney, instead of as O.'s attorney. Section 7.2 of the Rules of the Chief Judge sets out the requirements for the attorney for the child:
Section 7.2 Function of the attorney for the child.
(a) As used in this part, "attorney for the child" means a[n attorney] appointed by family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex-parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.
(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.
(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.
22 NYCRR 7.2(d)
An attorney for the child is not either parent's advocate, he or she is an attorney duly appointed by the court to perform a clearly defined duty: representing the child to the best of his or her ability (see 22 NYCRR § 7.2 [d] ["Where the child is the subject, the attorney for the child must zealously advocate the child's position"] ). The role "is to be an advocate for and represent the best interests of the child, not the parents." Zappin v. Comfort , 49 Misc 3d 1201(A), 26 N.Y.S.3d 217 (Sup. Ct., NY Co. 2015), aff'd , 146 AD3d 575, 49 N.Y.S.3d 6 (1st Dept. 2017), citing In re Brittany W. , 25 AD3d 560, 806 N.Y.S.2d 426, 427 (2d Dept. 2006). An attorney for the child may, of course, advocate for a position that either agrees or disagrees with one or both parents — logically, in a custody case between two parents, it may well be that the attorney for the child sometimes agrees with one parent or another on at least some issues, or disagrees with one or both parents on at least some of the other issues. It would not be possible (or reasonable) for there to be, what Husband seems to be advocating for, a rule that an attorney for the child would be required to always take a position that deviates from what either parent is asking for, lest the attorney for the child be accused of "taking sides." There is, of course, no such rule. An attorney for the child, of course, may sometimes agree with one or both parents. Accordingly, Father is not correct when he states (without supporting legal basis or citation) that "Mr. Wiener and Ms. Bender are adversaries in the instant action with Mr. Wiener representing [Wife] and Ms. Bender representing the parties' son, O." [Jewell Affir. ¶35]. An attorney for the child is not necessarily an "adversary" or "ally," for, against, with, or opposed to either parent. As the Appellate Division, Second Department has held, there is no evidence of an inappropriate "bias" against one parent merely because an attorney for the child adopts a position favoring the child's placement with the other parent. In re Brittany W. , 25 AD3d 560, 806 N.Y.S.2d 426, 427 (2d Dept. 2006). To require otherwise would not be logical, possible, or in the children's best interests.
Father's allegation that Ms. Bender improperly substituted judgment for her client is also not supported. Indeed, where Ms. Bender substituted judgment, as for example, she did regarding his school placement, she did so following Section 7.2(d) rule: she stated that she was substituting judgment, cited to the relevant rules, explained that she spoke with her client, his mental health providers and other professionals and reviewed his records, as well as other papers provided by both parents, and then, she stated her detailed reasons for substituting judgment because of concerns of actual harm, then, she stated her recommendation, making clear that it is substituted judgment, and she also informed the court and all parties what her client's expressed wishes were, and that the client (O.) authorized her to reveal his wishes. [June [redacted by the court], 2018 Tr. 4-6, NYSCEF doc. 128 at 69-73; regarding O.'s school placement]. Ms. Bender's presentation is fundamentally different from Michael H. v. April H. , where closing arguments by the attorney for the child directly contradicted the child's wishes as expressed at the Lincoln hearing (with the judge and attorney for the child present, but not parties or their attorneys), and, during the closing argument, the attorney for the child neither stated that she was substituting judgment instead of directly representing her client, nor presented any reasons to substitute judgment. Michael H. v. April H. , 34 Misc 3d 519, 520, 934 N.Y.S.2d 685, 686 (Fam. Ct., Clinton Co. 2011) (declaring a mistrial and assigning new attorney for the child where prior attorney made closing statements that were not what the child wanted, did not state that attorney was substituting judgment, and there were no reasons presented to substitute judgment).
Father's allegations of inappropriate bias towards the Mother are further undermined by the fact that Ms. Bender substituted judgment to take a position on the child's schooling that was contrary to that advocated by the Mother, although, at that time, recommended by the child's treating mental-health professionals. [Id. ] After completing a proper inquiry, "it is entirely appropriate, indeed expected" for the attorney for the child to take a position. VanDee v. Bean , 66 AD3d 1253, 1256, 888 N.Y.S.2d 230 (3d Dept. 2009) Here, as in VanDee , there is "no evidence" that the Attorney for the Child "improperly developed her position or reached conclusions" before obtaining sufficient information. The parents ultimately decided for O. to continue at O's then-current school, and whereas the two parents agreed on O.'s schooling, their choice was different from that recommended by Ms. Bender. Here, as in many cases involving children, both parents or attorneys for the child or the court (or any combination of those individuals) may accept the same recommendation or provision as being in the child's best interests, without those agreeing individuals becoming biased or unethical merely because they agree on that custodial issue. It is not correct to say that everybody's custodial interests are always diametrically opposed and not overlapping, or that whenever any two "sides" agree on something, there is inappropriate bias or ethical violations.
"Absent a conflict of interest or failure to diligently represent the best interests of the child, the attorney for the child should not be removed." Sagaria v. Sagaria , 2019 NY Slip Op. 04980, 2019 WL 2518503, at *1 (2d Dept. June 19, 2019). Here, Husband does not present any evidence to remove the attorney for the child. Father makes no substantiated allegations against Ms. Bender that would be considered a disabling conflict of interest or failure to "diligently" represent the best interests of her client the child. To the contrary, according to time records (which were not disputed), Ms. Bender has spent well over one hundred hours on this case, including numerous court appearances, by, among other things: reviewing the parents' court filings, emailing with attorneys for the parents and the attorney for other the children in the case, meeting with the parents and their attorneys, reviewing the child's medical and mental-health records and assessments, speaking with parents' attorneys about the child's school and therapy, meeting with the child on multiple occasions, including either meeting with or telephoning the child after court appearances that changed O's parenting-access schedule, emailing parents' attorneys regarding substituting judgment, speaking with all counsel about the role of a Parent Coordinator and the role of the child's therapist, emailing regarding the child's parenting time schedule, speaking with the Parent Coordinator and the child's therapist (after receiving HIPAA releases and forwarding those to the therapist), discussing proposed parenting plans, speaking with the child's school principal, reviewing the forensic report, and reaching out to potential mental health professionals to assist her with the report and potential next steps, filing a motion to "prevent non-party from having access to information about O.", and preparing this opposition to Father's motion. [NYSCEF doc. 140, Bender Affir., Ex. I]. The court notes that Ms. Bender's billing rate as an attorney for the child in this case, per the court's appointment order (on consent of Ms. Bender) is substantially lower than rates she may charge party clients as part of her practice, even though the parents in this case have represented that each one's annual income is in the seven figures. Ms. Bender also attaches her invoices as sent out to the parties, within the requirements of the appointment order or otherwise. [NYSCEF doc. 140-1, Bender Aff., Exs. J-K], and Husband's papers do not dispute any specific line item or specifically allege any inappropriate delay in billing. It also appears from the invoices that Father has not paid his invoice to Ms. Bender for some time, including amounts at least 120 days overdue, although Ms. Bender has not brought this to the court's attention, or sought to enforce fees due to her.
In this case, as in Sagaria , recently affirmed by the Appellate Division, Second Department, the movant "offered no evidence of any conflict of interest or bias on the part of the attorney for the child in favor of the [other parent], nor did the [movant] offer any evidence that the attorney for the child was neglecting her obligations to the child," and accordingly, it is within this court's discretion to deny Father's request to remove Ms. Bender. Sagaria v. Sagaria , 2019 NY Slip Op. 04980, 2019 WL 2518503, at *1 (2d Dept. June 19, 2019) (upholding the Supreme Court's determination denying motion to remove the attorney for the child, as provident exercise of discretion).
Husband also states that since her May 2018 appointment, although Ms. Bender met with O. initially, and several times since, and emailed and spoke with him, and was accessible to him, nevertheless, there was allegedly a 4.5-month period during which Ms. Bender did not meet with him. There is no specific temporal requirement for how often an attorney for the child must physically meet with her client. This is fundamentally different from Mark T. v. Joyanna U., a case where a newly-assigned appellate attorney for the child took a position on appeal that was different from that taken at trial by the child's attorney, and did so without ever meeting with the eleven-year-old child, and without presenting any reasons to substitute judgment. Mark T. v. Joyanna U. , 64 AD3d 1092, 882 N.Y.S.2d 773 (3d Dept. 2009) (sua sponte relieving counsel who never met with client, and assigning a new attorney for the child). It is not appropriate for the court to micro-manage the attorney-client relationship and mandate a minimum frequency of meetings, especially under the circumstances here, where Ms. Bender reviewed the record, spoke with the parents, her client, and his providers frequently and extensively, and maintained contact and access to her client. To mandate monthly meetings may not be in a child's best interest.
Further, it appears that Husband is attempting to hinder Ms. Bender's ability to properly develop the complex representation of her client and for her to determine, with the advice of a licensed mental health professional (Dr. Sigalow), whether it would be either appropriate or necessary for Ms. Bender to substitute judgment in order to potentially advocate for "extraordinary measures on behalf of" her client, based on certain findings in Dr. Kaplan's forensic report. The court notes that Ms. Bender did not state what those potential "extraordinary measures" might be, but instead, she has sought the court's permission (as allowed under the appointment order) to hire a licensed mental health professional to assist her with the next steps, given certain findings in Dr. Kaplan's forensic report. Extensive search of Father's papers does not reveal any argument to support his request to vacate the order allowing Ms. Bender to retain Dr. Sigalow, Ph.D., as a consulting expert, only a repetition of the request itself.
Husband provides no legal authority for limiting Ms. Bender's ability to seek the advice of a licensed mental health professional, especially before Ms. Bender advocates for what she describes as potentially "extraordinary measures" on behalf of her client. Nor is there any such legal authority, and the court has already issued the order for Ms. Bender's consulting expert [NYSCEF doc. 117]. There is no legal reason presented to vacate that order or delay this case any further.
Husband also seeks to vacate the order appointing Dr. Kaplan, mandating that all involved in this action disregard the forensic evaluator's report, and for Dr. Kaplan to disgorge his fees. Husband states that "Dr. Kaplan's forensic report which amounts to a 62 page rambling diatribe that amounts to incoherent rubbish." [Jewell Affir. at 17]. The court is not entirely sure what Husband means by this statement, which is best characterized as an opinion. To the extent that Husband means to allege that Dr. Kaplan's report or any of his conclusions are not based on "generally accepted" medical practices, then, his testimony can be subject to either voir dire , cross-examination, or testimony by a rebuttal expert. See, e.g., Straus v. Strauss , 136 AD3d 419, 420, 24 N.Y.S.3d 76, 77 (1st Dept. 2016) (upholding denial of a parent's motion to exclude the forensic report, stating that even if a forensic report failed to cite specific professional literature in support of its analyses and opinions, movant could cross-examine the forensic evaluator regarding the lack of citations, and such an omission is relevant to the weight to be accorded to the evaluator's opinion, not to its admissibility) (citing Frye v. United States , 293 F. 1013 (D.C. Cir. 1923) (permitting expert testimony where it is based on scientific principles, procedures, or theories if they gained "general acceptance" in the relevant scientific field) and Zito v. Zabarsky , 28 AD3d 42, 46, 812 N.Y.S.2d 535 (2d Dept. 2006) (discussing New York's application of Frye ).) Husband alleges that because attorneys for Wife, Husband, and Child O. have each stated that they intend to hire their own expert in connection with the report, therefore, they have each "requested the help of other mental health professionals to interpret and understand Dr. Kaplan's useless report." [Jewell Affir. at 18]. Attorneys for Wife and for Child O. have never stated that the above quote is the reason they are hiring their own experts, and indeed, the opposite could also be true: they may be hiring experts to move forward with conclusions or recommendations. Indeed, as Ms. Bender stated regarding Dr. Sigalow's review of Dr. Kaplan's report, discussed supra , that such help may be necessary if seeking "drastic measures," presumably as triggered by findings, statements, or recommendations in the report. Husband also states that he originally objected to the appointment of Dr. Kaplan, citing a 2005 Nassau County Supreme Court case, where Dr. Kaplan was hired by the wife as her expert, where the court reached a different credibility determination than Dr. Kaplan did. Anonymous AB v. Anonymous DB , 9 Misc 3d 1122(A), 862 N.Y.S.2d 806 (Sup. Ct., Nassau Co. 2005). Husband's detailing of the Anonymous AB case does not include important information from the published decision: that Dr. Kaplan did not have access to certain information to which the court did have access and, which information was crucial to the court's credibility determination:
After an exhaustive review of the trial testimony and exhibits and the proceedings herein, the Court finds that the record is replete with instances where the [wife] withheld and/or misrepresented information. Most telling, is the Court's finding that the plaintiff misled Dr. Tripodi in an effort to convince him that her bruises were the result of abuse, by advising him that she had been seen previously at Lenox Hill Hospital. It appears that the plaintiff went to Dr. Tripodi's office in December 2002, specifically for the purpose of documenting the bruises on her hip and thigh; and it further appears that the bruises were, in reality, the result of a vein stripping procedure. The Court notes that plaintiff's expert, Dr. Kaplan, relied to some extent on Dr. Tripodi's records in assessing plaintiff's credibility and forming his opinion.
Anonymous AB v. Anonymous DB , 862 N.Y.S.2d 806.
Although Husband states that Dr. Kaplan did "atrocious work" and reached "baseless conclusions" in Anonymous AB, that court did not use any of those words, did not criticize Dr. Kaplan's work at all, and merely stated that the court had access to trial testimony and exhibits to which Dr. Kaplan did not have access in reaching a credibility determination. Here, Husband seems to suggest that because the Anonymous AB court did not agree with Dr. Kaplan in that case, that therefore, Dr. Kaplan did "atrocious" work, even though that is not stated anywhere in the decision. Courts are not required to follow the findings or recommendations of forensic evaluators (see, e.g., Tatum v. Simmons , 133 AD3d 550, 551, 21 N.Y.S.3d 208, 210 (1st Dept. 2015) ; Matter of John A. v. Bridget M. , 16 AD3d 324, 332, 791 N.Y.S.2d 421 (1st Dept.), lv. denied 5 NY3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 (2005) ), and there is no requirement that a court may choose not to follow the recommendations of a forensic only after dismissing, disqualifying, or otherwise finding the forensic work "atrocious" or "baseless," as Husband seems to suggest. Husband, with no legal basis, suggests that Dr. Kaplan should be disqualified from acting as a forensic in this case in 2018 and 2019 on the basis of a fourteen-year-old case, where the court reached a different credibility determination than Dr. Kaplan (who found his then-client to be a credible victim of domestic violence, based in part on a different doctor's report of thigh and hip bruises, in part because Dr. Kaplan did not have information that those bruises were the result of a vein-stripping procedure instead, which information was available to the court but not Dr. Kaplan), and where there were no findings of wrongdoing by Dr. Kaplan.
Husband also makes several allegations, which might go to the weight of the report in this case, but are not a basis to dismiss the report: (1) Dr. Kaplan's report "contradicts" what Husband says is his greatly improved relationship with O.; (2) Dr. Kaplan made "repeated misrepresentations ... concerning his preparation" of the report because a "review of the report makes clear Dr. Kaplan did no work during the period of time where the parties conducted five (5) court conferences, namely September 2018 to January 2019;" and (3) "If Dr. Kaplan repeatedly lied to this Court about his working on it and when it would be produced, who knows how many other misrepresentations and distortions are contained in the document." [Jewell Affir. at 17-18]. The court does not, at this time, decide whether any of the above factual allegations are true. If the non-opinion factual portions of the above allegations are true, then, they can be raised by Husband during cross examination, and would go to the weight of the report, not its admissibility. Straus , 136 AD3d at 420.
As discussed above, there is no evidence of wrongdoing by the attorneys for the Wife, Attorney for Child O., or the forensic evaluator, and therefore, there is no legal basis to disgorge any of their fees, vacate appointment orders, or to refer to disciplinary authorities, as requested in Father's motion.
Under all of the circumstances in this case, some of which are described supra , it is appropriate to order an expedited updated forensic report, especially in light of new mental-health developments for [redacted by the court] children. Both parents and attorneys for the children report that [redacted by the court]. The parents, who were living in the same apartment during the first Dr. Kaplan evaluation, physically separated several weeks before the report was issued, and have now completed some six months of separate parenting time, and are about to embark on extended summer parenting-time schedules. Accordingly, the court will issue, simultaneous with this decision, an Order Reappointing Forensic Evaluator Dr. Kaplan to provide an expeditious update for this family.
Dr. Kaplan has assured the court that the updated report would be completed within sixty days from date of this order.
Husband bases his motion upon certain emails between Wife and her attorneys, which emails he apparently accessed on his laptop during this action, while the parties were still living in the same residence. The exact circumstances of how Husband was able to access Wife's emails is not entirely clear, and Husband's original moving papers and in-court statements are especially circumspect on this issue, stating in his first affidavit that "I noticed that [Wife] had logged into the Guest Account on my laptop computer, and left an open browser with numerous emails related to our divorce action available for anyone including our children- to view. [Wife] cannot claim that I broke into her e-mail, as I never had the password to her e-mail account." [NYSCEF doc. 120, February 13, 2019 [Husband] affidavit, redacted and filed by Wife].
Wife points out what she calls Husband's inconsistencies and "changing" narrative regarding whether Husband saw the actual open emails on his laptop, a screen listing Wife's emails in order (i.e., the summary or preview screen, from which he would have to click on each email's line representation in order to view and print the full email) or a general Yahoo page (which may have allowed him to click through to Yahoo Mail, see Wife's email summary page, and then click through to individual emails). [NYSCEF doc. 149, Wife Atty Affir. at 3-6]. In his March 13, 2019 submission, Husband explained how he apparently was able to access the emails: "I turned on my computer to find [Wife's] e-mail account open and in front of me with the inbox listing out the subject headings and sender names of the various emails contained therein. At the top of the inbox were e-mails that each had the following subject heading: ‘Any reason for [Wife] not to send this email to Dr. Kaplan?’ I clicked on these and the other e-mails discussed below ... There are effectively 8 e-mails at issue: May 7th ... May 31... November 1st... November 8th" [NYSCEF doc. 125, March 15, 2019 Husband's Reply; emphasis added] (note that this March 15, 2019 reply was erroneously filed on NYSCEF as a reply on motion sequence 002, which was resolved in June 2018, see NYSCEF doc. 107). Husband does not state whether he was able to "click" to open the May and November emails from the same "inbox" screen, or whether he also had to click to get to different inbox summary pages.
Wife also points out that the date stamp of when the emails were printed (not the dates of the emails themselves, which are different) include November 7, 8, and 9, 2018 — meaning that Husband may have continued being able to access and print her emails. She also states that the emails he was able to print (from May 2018 through November 2018) are not on the same summary page of her Yahoo email, meaning that Husband may have scrolled through numerous summary pages of her emails to find and select the emails he did print. Wife states that she does not know when Husband started or stopped accessing her emails, including privileged emails with her attorneys, and how many of her emails Husband viewed or retained. She does not know if he is privy to her litigation strategy, including financial discussions or negotiation posturing she may have discussed with her attorneys. Wife alleges that Husband's actions may well be a violation of state and federal laws, as well as greatly prejudicing her in this action.
Wife seeks extensive discovery related to emails Husband may have accessed, including those he may have shared with his then-attorney Mr. Jewell. Wife does not seek her emails that were sent to Mr. Jewell or to Husband directly, of course, but rather only those emails to, from, cc'ing, or bcc'ing Wife that do not include either Mr. Jewell or Husband as top-line recipients ("Wife's Emails"). There is no date limitation on the request, since Wife does not know which of her emails Husband accessed.
The Preliminary Conference Order, signed in this case on April [redacted by the court], 2018 by both parties and their then-attorneys, and filed with this court's County Clerk on May [redacted by the court], 2018, includes the following preservation orders:
Preservation of Evidence:
(b) Electronic Evidence: For the relevant periods relating to the issues in this litigation, each party shall maintain and preserve all electronic files, other data generated by and/or stored on the party's computer system(s) and storage media (i.e. hard drives, floppy disks, backup tapes), or other electronic data. Such items include, but are not limited to, e-mail and other electronic communications, word processing documents, spreadsheets, data bases, calendars, telephone logs, contact manager information, internet usage files, offline storage or information stored on removable media, information contained on laptops or other portable devices, and network access information.
April [redacted by the court], 2018 Preliminary Conference Order at 5.
The court specifically reminded the parties and counsel of this preservation order at the February [redacted by the court], 2019 appearance, during the first in-court discussion of Wife's Emails, and Husband reaffirmed his understanding of the order. [NYSCEF doc. 119, February [redacted by the court], 2019 Tr. 38:18-39:13]. Crocker C. v. Anne R. , 58 Misc 3d 1221(A), 100 N.Y.S.3d 609 (Sup. Ct., Kings Co. 2018) (Preliminary Conference Order is a "clear, concise and unambiguous directive[ ] about spoliation."); see also Resnik v. Coulson , 2019 WL 1434051, at *7 (E.D.NY Mar. 30, 2019).
Husband is ordered to provide copies of all of Wife's Emails (as defined above) in his possession, whether stored electronically, on paper, or both, to Wife's counsel within 5 days of this order. Husband is also to provide copies of all forwarding emails (i.e., if Husband forwarded or shared any of Wife's Emails to anybody, including to his own accounts or to others, those forwarding emails or transmissions are to be provided). Husband is also ordered to provide copies of any storage, including any cloud storage of Wife's Emails, whether on computer, flash, memory, or electronic devices in Husband's control, his own emails, on electronic "cloud" storage systems such as Drobox, Google Drive, Microsoft OneDrive, Apple iCloud or similar systems, or on servers, computers, storage, or cloud systems that he has access to or had access to at any time since commencement of this action. Wife's counsel is to notify Husband of the name and contact information for her forensic specialist within 2 days of this order. Husband is to provide access to that forensic specialist to the "native" files within 5 days of this order.
Wife also seeks Husband's laptop on which he allegedly accessed her email. Husband brought what he said was that laptop to court on February [redacted by the court], 2019, and offered to provide it to counsel. [NYSCEF doc. 119, February [redacted by the court], 2019 Tr. 14:13-15:4; 40:3-6.] Although Wife's counsel stated that he would take it, if that laptop had not yet been transferred to Wife's counsel, Husband is to transfer that laptop directly to a forensic specialist selected by Wife's counsel within 5 days of this order. If Mr. Jewell has the laptop (February [redacted by the court], 2019 Tr. 40:3-6), he is to transfer that laptop directly to a forensic specialist selected by Wife's counsel within 5 days of this order. Wife's counsel is to notify Husband (and Mr. Jewell, in case he has the laptop) of the name and contact information for her forensic specialist within 2 days of this order. Husband may not open, access, clean, or otherwise use the laptop from receipt of this order until he transfers the laptop to the forensic specialist. Husband is to provide the forensic specialist with any and all passwords that may be necessary to access the laptop and storage of Wife's Emails on or via the laptop. At this time, Wife is to pay for her forensic specialist, subject to reallocation.
Husband is to continue to preserve any and all copies of Wife's Emails, or documents regarding Wife's Emails, whether electronic or on paper, and may not delete, reboot, overwrite, or otherwise alter any Wife's Emails, or documents regarding Wife's Emails, and must preserve all such paper and electronic evidence, however stored or maintained, until further order of the court. Crocker C. v. Anne R. , 58 Misc 3d 1221(A) (internal citations omitted). At this time, the court denies without prejudice Wife's request to preclude or strike Husband's financial claims in this action, although the court notes that striking Husband's claims as to custody or child support would likely not be appropriate because it could implicate children's rights to parenting time and support. Crocker C. v. Anne R. , 58 Misc 3d 1221(A).
Mr. Jewell, who filed at least some of Wife's Emails in this case, is similarly ordered to provide copies of all of Wife's Emails in his possession, whether stored electronically, on paper, or otherwise, to Wife's counsel within 5 days of this order. There is no allegation that Mr. Jewell had independent access to Wife's Emails, other than those that Husband provided to him, and accordingly, there is no demonstrated need at this point for extensive discovery or deposition from Mr. Jewell. He is, however, required to continue to preserve any of Wife's Emails or any communications regarding those emails, including attorney-client privileged, work product, and any other privileged and non-privileged documents regarding Wife's Emails, and he may not destroy them, either on purpose or in the regular course of business, if he has a regular document retention and destruction protocol in place, which protocol is to be suspended and all evidence preserved, until further court order.
Wife's request for a deposition of Husband related to the emails is also granted: Husband's then-attorney already consented to a deposition on this issue at the February [redacted by the court], 2019 appearance (NYSCEF doc. 119, February [redacted by the court], 2019 Tr. 14:8-20), and Husband did not specifically oppose that requested relief in his filings.
Wife also seeks reimbursement and sanctions pursuant to 22 NYCRR § 130-1.1, including attorney's fees spent as a result of Husband's accessing Wife's Emails. Wife cites Strauss v. Strauss , 171 AD3d 596, 597—98, 99 N.Y.S.3d 7 (1st Dept. 2019), where the Appellate Division, First Department upheld sanctions against a matrimonial defendant and his counsel, who, in that case, "obtained access to plaintiff's iPad and private text messages, falsely told her that he did not have the iPad and that it was lost, and provided the text messages to his counsel, who admittedly failed to disclose to opposing counsel or the court the fact that defendant was in possession of the iPad and text messages, until two years later when they disclosed that they intended to use the text messages at trial. Nor does defendant explain how or why he was legally permitted to retain plaintiff's iPad without her knowledge, and to access and take possession of plaintiff's personal data located on her iPad." Id. at 597. The exact amount of attorney's fees in Strauss was, however, remanded to the trial court to be determined after "a reasonable opportunity to be heard," because the "plaintiff's application did not include an affirmation from [wife's attorneys] explaining its invoices, and, although defendant was given the opportunity to submit a sur-reply on the issue, he was deprived of the opportunity to question the [attorney] invoices." Id. Despite a searching review of the record on both motions, the court has not been able to find detailed invoices from Wife's attorneys or an affirmation "explaining its invoices," per Strauss. Accordingly, the issue of attorney's fees pursuant to 22 NYCRR § 130-1.1 is denied at this time, without prejudice to renewal upon a proper showing, and an opportunity to oppose the invoices. The court notes that such an application may also be filed after the allowed discovery pursuant to this order, depending, of course, on the outcome of that discovery process.
At this time, a deposition of Mr. Jewell, the former attorney for Husband, is denied, on the current record before the court, without prejudice upon a further showing, including proposed safeguards against unnecessarily invading attorney-client privilege. See Brito v. Gomez , 168 AD3d 1, 4, 88 N.Y.S.3d 166 (1st Dept. 2018) ("Discovery determinations are discretionary and must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure"); see also Kuriakose v. Motor Vehicle Accident Indem. Corp. , 169 AD3d 502, 92 N.Y.S.3d 873 (1st Dept. 2019) (upholding discovery order as a "provident exercise of discretion").
Husband's cross motion [NYSCEF doc. 167] to Wife's cross-motion (setting aside that a cross-motion to a cross-motion is contrary to Part Rules and CPLR) seeks an order directing attorneys for Wife and both attorneys for the children to produce e-mail correspondence between themselves and/or Dr. Kaplan, and for Wife's attorneys to submit unredacted invoices.
In a divorce action, "broad pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets." Jaffe v. Jaffe , 91 AD3d 551, 553-4, 940 N.Y.S.2d 1 (1st Dept. 2012) (citing Kaye v. Kaye , 102 AD2d 682, 686, 478 N.Y.S.2d 324 (2d Dept. 1984) ). Discovery related to support and expenses may also be allowed. Id. Husband does not seek any financial information he does not already have (Husband apparently already has Wife's attorneys' invoices, which were partially redacted on the claim of privilege, he is seeking a fully unredacted version, but "uncovering" of redactions describing tasks billed for would not provide any additional "financial" information than already provided in the time and billed amounts). He seeks emails related to custody and parenting-time claims. It does not appear, however, that Husband has met the necessary "showing of special circumstances" and "substantial merit" for seeking custody related discovery. See Hunter v. Hunter , 10 AD2d 291, 294, 198 N.Y.S.2d 1008, 1012 (1st Dept. 1960) ; c.f., S.R.E.B. v. E.K.E.B. , 48 Misc 3d 1217(A), 20 N.Y.S.3d 294 (Sup. Ct., Kings Co. 2015) (allowing limited custody-related discovery of father's travel itineraries and certain videotapes in his possession after mother met her burden, stating "While the subject of pretrial discovery in custody matters has been the subject of recent debate, it has been the long established policy in the First and Second Judicial Department that generally, pretrial discovery is not allowed absent court permission. The rule has been predicated upon the theory that the potential for abuse of discovery is so great in matrimonial actions that the Court is given broad discretionary power to grant a protective order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. The historical case law states, thus in matrimonial actions experience has shown that the pretrial examination too often becomes an exacerbating circumstance... [T]he possibility of abuse is so great the burden should be placed upon the party seeking the examination, and a protective order denying the examination should issue unless the burden is satisfied. Generally, depositions and demands for bills of particulars in relation to issues in custody trials have been denied.") (citing Hunter , other citations omitted). To the extent Husband seeks any attorney-client privileged information, such as unredacted invoice descriptions, such information is further protected by the attorney-client privilege. See Randall Co. LLC v. 281 Broadway Holdings LLC , 132 AD3d 452, 453, 17 N.Y.S.3d 636 (1st Dept. 2015) ("bills detailing the work done by the attorneys are clearly privileged material and are therefore subject to redaction" (citing Teich v. Teich , 245 AD2d 41, 665 N.Y.S.2d 859 (1st Dept. 1997) and De La Roche v. De La Roche , 209 AD2d 157, 158, 617 N.Y.S.2d 767 (1st Dept. 1994) ); Teich , 245 AD2d at 41 (correcting a "deficiency" in a disclosure order by "permitting the redaction of all material contained in defendant's attorney's bills other than the number of hours worked and the dollar amount charged").
Documents (including emails) provided to Dr. Kaplan by either parent have to be provided to the other side within 3 business days, pursuant to this court's May 2018 order appointing Dr. Kaplan. Attorneys were prohibited from directly contacting Dr. Kaplan other than regarding issues of scheduling or billing. Dr. Kaplan's report included a list of documents provided to him. To the extent that any documents provided to Dr. Kaplan have not been previously exchanged, they are to be exchanged, by both sides, within 3 business days of this order.
Accordingly, for the reasons stated above, it is
HEREBY ORDERED that branch (a) of motion sequence 003, which sought removal of Attorney for the Child O., Ms. Susan Bender, Esq. is DENIED; and it is further
ORDERED that branch (b) of motion sequence 003, which sought "vacatur" of order appointing Dr. William Kaplan, M.D. as forensic evaluator for custody issues is DENIED; and it is further
ORDERED that branch (c) of motion sequence 003, which sought "vacatur" of order "directing" appointment of Dr. Sherill Sigalow, Ph.D. is DENIED; and it is further
ORDERED that branch (d) of motion sequence 003, which sought an order "striking" the forensic report from Dr. William Kaplan, M.D. is DENIED; and it is further
ORDERED that branch (e) of motion sequence 003, which sought appointment of a specific replacement forensic evaluator for custody issues is DENIED; and it is further
ORDERED that branch (f) of motion sequence 003, which sought appointment of a specific replacement Attorney for the Child O. is DENIED; and it is further
ORDERED that branch (g) of motion sequence 003, which sought "disgorgement" of "all fees" paid to Ms. Bender, Esq. by Husband is DENIED; and it is further
ORDERED that branch (h) of motion sequence 003, which sought "disgorgement" of "all fees" paid to Dr. Kaplan by Husband is DENIED; and it is further
ORDERED that branch (i) of motion sequence 003, which sought a "referral" of attorneys for the Wife Elliot Wiener, Esq. and Athena Mihalos, Esq., and Attorney for the Child O. Susan Bender, Esq. to "appropriate disciplinary authorities" is DENIED; and it is further
ORDERED that branch (j) of motion sequence 003, which sought an order requiring Mr. Wiener, Ms. Mihalos, and Ms. Bender to pay for "all attorneys' fees and costs for drafting, executing and responding to instant application" is DENIED; and it is further
ORDERED that branch (k) of motion sequence 003, which sought "disgorgement" of "all fees" paid to Ms. Bender, Esq. by Husband is DENIED; and it is further
ORDERED that branch (1) of motion sequence 004, which sought a preclusion order as to any and all emails "retrieved, possessed, accessed, viewed, copied, printed or forwarded by any means from Plaintiff's email account" is GRANTED solely to the extent that Defendant may not use any emails obtained from Plaintiff's email account other than the emails already attached to this motion, subject to an application by Plaintiff upon a proper showing, branch (1) is denied as to the emails already attached to this motion, without prejudice to renew upon a proper showing; and it is further
ORDERED that branch (2) of motion sequence 004, which sought dismissal of Husband's custodial and financial claims in this action is DENIED as to Husband's custodial and child-support claims, if any, and DENIED without prejudice to renew upon a proper showing for Husband's other financial claims in this action (including, without limitation, maintenance, equitable distribution, or counsel fees); and it is further
ORDERED that branch (3) of motion sequence 004, which sought an order pursuant to 22 NYCRR § 130-1.1, "directing Defendant to reimburse Plaintiff for actual expenses reasonably incurred and reasonable attorney's and experts' fees" related to motion sequences 003 and 004, including related appearances and memoranda of law, is DENIED without prejudice to renewal upon a proper showing, and an opportunity to oppose the invoices; and it is further
ORDERED that branch (4) of motion sequence 004, which sought an order pursuant to 22 NYCRR § 130-1.1, imposing financial sanctions against Defendant and his prior counsel R. Kenneth Jewell, Esq. is DENIED without prejudice to renewal upon a proper showing; and it is further
ORDERED that branches (5) - (8) of motion sequence 004, which sought discovery with respect to the emails that Defendant acquired from Wife, from each of Husband and Mr. Jewell, Esq. is GRANTED solely to the following extent:
(i) Wife's counsel is to notify Husband and Mr. Jewell with the name and contact information for Wife's forensic computer specialist within 2 days of this order, if Wife chooses to hire a forensic specialist ("Wife's Forensic").
(ii) Husband is ordered to provide copies of all of Wife's Emails (as defined above, i.e. , all emails to, from, cc'ing, or bcc'ing Wife that do not include either Mr. Jewell or Husband as top-line recipients, with no date limitation) in his possession, whether stored electronically, on paper, or both, to Wife's counsel or to Wife or to Wife's Forensic, at Wife's discretion, within 5 days of this order;
(iii) Husband is to provide copies of all forwarding emails (i.e., if Husband forwarded or shared any of Wife's Emails to anybody, including to his own accounts or to others, those forwarding emails or transmissions are to be provided) to Wife's counsel or to Wife or to Wife's Forensic, at Wife's discretion, within 5 days of this order;
(iv) Husband is ordered to provide copies of any storage, including any cloud storage of Wife's Emails, whether on computer, flash, memory, or electronic devices in Husband's control, in his own emails, on electronic "cloud" storage systems such as Drobox, Google Drive, Microsoft OneDrive, Apple iCloud or similar systems, or on servers, computers, storage, or cloud systems that he has access to or had access to at any time since commencement of this action to Wife's counsel or to Wife or to Wife's Forensic, at Wife's discretion, within 5 days of this order;
(v) Husband is to provide full access, including any necessary passwords or passcodes, to Wife's Forensic to the "native" files in parts (i)-(iv) within 5 days of this order;
(vi) Husband is to transfer the laptop on which he allegedly accessed Wife's Emails directly to Wife's Forensic within 5 days of this order, unless the laptop has already been transferred to Wife's counsel; and if Mr. Jewell has this laptop, he is to transfer that laptop directly to Wife's Forensic within 5 days of this order;
(vii) Husband may not open, access, clean, or otherwise use the laptop from receipt of this order until he transfers the laptop to Wife's Forensic;
(viii) Husband is to provide the forensic specialist with any and all passwords that may be necessary to access the laptop and storage of Wife's Emails on or via the laptop;
(ix) Husband is to continue to preserve any and all copies of Wife's Emails, or documents regarding Wife's Emails, whether electronic or on paper, and may not delete, reboot, overwrite, or otherwise alter any Wife's Emails, or documents regarding Wife's Emails, and must preserve all such paper and electronic evidence, however stored or maintained, until further order of the court;
(x) Mr. Jewell, who filed at least some of Wife's Emails in this case, is ordered to provide copies of all of Wife's Emails in his possession, whether stored electronically, on paper, or otherwise, to Wife's counsel or to Wife or to Wife's Forensic, at Wife's discretion, within 5 days of this order;
(xi) Mr. Jewell is to continue to preserve any of the Wife's Emails or any communications regarding those emails, including attorney-client privileged emails, work product, and any other privileged and non-privileged documents regarding Wife's Emails, and he may not destroy them, either on purpose or in the regular course of business, if he has a regular document retention and destruction protocol in place, which protocol is to be suspended and all evidence preserved, until further court order;
(xii) Husband is to appear for a deposition related to Wife's Emails, to be noticed by Wife's attorneys;
(xiii) At this time, Wife's deposition of Mr. Jewell, the former attorney for Husband, is denied, on the current record before the court, without prejudice upon a further showing, including proposed safeguards against unnecessarily invading attorney-client privilege;
(xiv) At this time, branch 6(f), seeking an order that Husband "[r]eturn all copies of [Wife's] Emails to Plaintiff," is DENIED without prejudice, because Husband is not allowed to make any deletions, and therefore, at this time, it does not appear to be possible for Husband to "return" copies of Wife's Emails (which could require giving Wife the emails and deleting his copy of them, which Husband is absolutely barred from doing); and it is further
ORDERED that branch (9) of motion sequence 004, which sought an order directing "Defendant to pay Plaintiff's counsel and expert fees related to discovery with respect to the emails that Defendant copied from Plaintiff's email account" DENIED without prejudice to renewal upon a proper showing, and an opportunity to oppose the invoices; and it is further
ORDERED that branch (1) of cross-motion sequence 004, which sought an order directing attorneys for Wife and both attorneys for the children to produce e-mail correspondence between themselves and/or Dr. Kaplan is GRANTED solely to the extent that any documents provided to Dr. Kaplan that have not been previously exchanged, are to be exchanged, by both sides, within 3 business days of this order; and it is further
ORDERED that branch (2) of cross-motion sequence 004, which sought an order requiring Wife's attorneys to produce unredacted invoices is DENIED.
Any relief requested but not granted above is denied.