Opinion
2020-381/B
04-21-2021
In the MATTER OF the Proceeding Pursuant to SCPA 2103 to Discover and Turnover Assets of the ESTATE OF Kenneth MABIE, Deceased.
Eric J. Weinhold, Esq., attorney for petitioner Ann Conlon, Whiteman Osterman & Hanna LLP, Albany Joseph L. Kay, Esq., attorney for respondent Melissa Gross, East Greenbush Philip A. DiGiorgio, Esq., nonparty witness, DiGiorgio Law Firm, PLLC, Utica
Eric J. Weinhold, Esq., attorney for petitioner Ann Conlon, Whiteman Osterman & Hanna LLP, Albany
Joseph L. Kay, Esq., attorney for respondent Melissa Gross, East Greenbush
Philip A. DiGiorgio, Esq., nonparty witness, DiGiorgio Law Firm, PLLC, Utica
Stacy L. Pettit, J.
Presently before the Court is a motion by petitioner for an order compelling disclosure from nonparty witness Philip A. DiGiorgio, Esq. DiGiorgio is an attorney who performed legal services for decedent prior to his death, including preparation of a power of attorney, a healthcare proxy and a deed to respondent Melissa Gross (hereinafter "respondent") for real property in the Town of Berne. Petitioner seeks discovery of electronic and other forms of communication between DiGiorgio and respondent's counsel, Joseph L. Kay. Also before the Court is a cross motion by respondent for a protective order pursuant to CPLR 3103 relieving nonparty DiGiorgio of the obligation to disclose the foregoing information.
By way of background, decedent executed the deed conveying real property in the Town of Berne to respondent, subject to a retained life estate, as well as a power of attorney and health care proxy appointing respondent as his agent, on March 23, 2020. He did not execute a new will at that time, and his prior will dated April 25, 2008 left his residuary estate to petitioner Ann Conlon (hereinafter "petitioner") and named her as executor. Decedent died a resident of Albany County on April 10, 2020. His April 2008 will was admitted to probate in July 2020, and letters testamentary were issued to petitioner.
Petitioner commenced the instant proceeding by order to show cause pursuant to SCPA 2103 and 2104 seeking turnover of certain property, including the real property deeded to respondent. Jurisdiction was obtained over all necessary parties. Respondent promptly moved to vacate the order to show cause due to the restraints imposed therein and petitioner opposed the motion. A conference was held on September 23, 2020 and the parties agreed to resolve the motion to vacate by modifying the restraints. The parties further agreed that litigation would continue pursuant to a scheduling order issued by the Court which provided that discovery was to be completed by December 11, 2020, and that the parties would comply with 22 NYCRR 202.7 to resolve any discovery disputes before requesting a conference with the Court and filing any discovery motions.
On October 15, 2020, petitioner's counsel served a subpoena on nonparty DiGiorgio seeking, among other things, the production of "any and all emails, text messages, records of telephonic conversations, notes, internal memoranda, or other documents related to this lawsuit, including documents and records related to communications and conversations with third parties, including without limitation ... [respondent's counsel] Mr. Joseph L. Kay, Esq." DiGiorgio provided petitioner with his responses to the items demanded in the subpoena by letter dated November 5, 2020 with enclosures. On December 2, 2020, petitioner conducted a deposition of DiGiorgio requesting disclosure of the communications that are the subject of this motion. Thereafter, counsel for petitioner and respondent and nonparty DiGiorgio exchanged several correspondences, on notice to the Court, disputing the propriety of petitioner's demand for the subject communications, including DiGiorgio's and Kay's objections to disclosure of the communications.
Missing from the record before the Court is any proof of service of the nonparty subpoena upon respondent Gross (see CPLR 3120 [3] ).
Pursuant to the Court's discovery schedule, petitioner's attorney contacted the Court seeking permission to bring a motion regarding the undisclosed communications. It was clear to the Court that the parties and nonparty DiGiorgio had made several unsuccessful attempts in good faith to resolve the dispute, and the Court granted counsel's request to bring a motion. Petitioner submitted an order to show cause to hold DiGiorgio in contempt, which the Court did not sign, followed by the instant motion to compel the undisclosed information. Respondent opposes the motion to compel and cross moves for a protective order pursuant to CPLR 3103 relieving nonparty DiGiorgio from the obligation to provide such information on the grounds that it constitutes attorney work product and material prepared in anticipation of litigation and is otherwise privileged. Petitioner opposes the cross motion. Nonparty DiGiorgio filed a brief affidavit asserting that the information sought is not discoverable and "join[ing] in Respondent's reply papers opposing the motion to compel."
The CPLR mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" ( CPLR 3101 ; see DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193 [1992] ). It is well settled that the trial court has broad discretion to supervise and control discovery (see Matter of Scaccia, 66 AD3d 1247, 1249 [2009] ; Saratoga Harness Racing v Roemer, 274 AD2d 887, 888 [2000] ). CPLR 3124 provides that, "[i]f a person fails to respond or comply with any request, notice, interrogatory, demand, question or order under [CPLR article 31], the party seeking disclosure may move to compel compliance or a response." Significantly, "[i]t is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" ( D'Alessandro v Nassau Health Care Corp., 137 AD3d 1195, 1196 [2d Dept 2016] ). Conversely, "[a] trial court ... may, on its own initiative or on the motion of a party, issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device so as to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" ( DiCostanzo v Schwed, 146 AD3d 1044, 1045 [3rd Dept 2017] [internal quotation marks and citations omitted]; see CPLR 3103 ).
"The CPLR extends ‘full disclosure of all matters material and necessary in the prosecution or defense of an action’ to nonparties" ( Loisell v Progressive Cas. Ins. Co., 190 AD3d 17, 19 [3d Dept 2020] ). "The words ‘material and necessary’ are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial [I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense" ( Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968] [internal quotation marks and citation omitted]). "Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty" ( Kapon v Koch, 23 NY3d 32, 38 [2014] ).
In order to prevail on her motion under rule 3124, petitioner must first establish that the undisclosed information is relevant to her claim that certain property is being wrongfully held by respondents and should be returned to decedent's estate or " ‘is reasonably calculated to lead to the discovery of information bearing on the claim[ ]’ " (see D'Alessandro v Nassau Health Care Corp., 137 AD3d at 1196 quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d at 421 ). Here, petitioner challenges decedent's due execution of the power of attorney, health care proxy and deed. She contends in the petition, in relevant part, that at the time of his execution of the documents decedent was in hospice care receiving "a number of prescription medications," that he "felt helpless to resist pressure from [respondents] Gross and ... Crounse and was unduly influenced to change his entire estate plan by transferring the majority of his estate to [respondent] Gross," and that he "lacked the capacity to understand the nature and effect of his actions." To establish her claims, petitioner seeks, among other things, communications between decedent's former counsel, nonparty DiGiorgio, and respondent's counsel, Joseph L. Kay, Esq.
Petitioner's reliance on the shifting burden set forth in Reda v Port Auth. of NY & N.J., (188 AD3d 1278 [2d Dept 2020] ), is misplaced. There, plaintiff did not seek an order compelling disclosure but rather brought a motion to quash a subpoena served upon nonparties by defendants. The Court explained that in considering such a motion "the party who served the subpoena has an initial minimal obligation to show that the nonparty was apprised of the circumstances or reasons that the disclosure is sought, and once that is satisfied, it is then the burden of the person resisting the subpoena to establish the inevitability or obviousness of the futility of the process to uncover anything legitimate or that the information sought is utterly irrelevant to any proper inquiry" (id. at 1279 ).
The Court finds that petitioner has offered sufficient proof through the deposition testimony of nonparty DiGiorgio to establish that the demanded communications between DiGiorgio and Kay are relevant to this proceeding and that her demand is not merely based on " ‘bare allegations of relevancy’ " (see D'Alessandro, 137 AD3d at 1197 ). Attorney DiGiorgio was retained by decedent to prepare the power of attorney, the health care proxy and the deed — the legal validity of which is material to the underlying proceeding - and to render legal advice to decedent with respect to those documents. It therefore cannot be disputed that DiGiorgio has direct knowledge of his representation of decedent. DiGiorgio was present during March 2020 when decedent signed the documents and appointed respondent to be his agent and conveyed his real property. DiGiorgio estimated that, following commencement of this proceeding, he engaged in "a handful" to a dozen phone calls with respondent's attorney, Kay, in addition to the exchange of several emails, regarding the underlying proceeding. He testified that during the course of those communications Kay provided suggested language to him in drafting his August 2020 affidavit submitted in connection with this proceeding, that he shared with Kay at least one draft of his affidavit before signing it, and that at one point DiGiorgio may have been privy to Kay's "version" of DiGiorgio's affidavit. DiGiorgio testified that he considered the communications with Kay privileged because they might divulge Kay's litigation strategy. DiGiorgio testified that it was possible his communications with Kay may have included discussions about decedent's intent, raising possible questions regarding the consistency of his earlier and later descriptions of decedent's intent. DiGiorgio further testified that a review of his emails with Kay would refresh his recollection of the nature of those communications.
DiGiorgio denied an attorney-client relationship with Kay and indicated that he has remained self-represented during the pendency of this proceeding.
Having determined that the requested material is relevant, the Court must decide whether the material is privileged. "While CPLR 3101 (a) provides that ‘there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action,’ this principle is limited by CPLR 3101 (b) and (c), which make ‘privileged matter’ and ‘attorney's work product’ absolutely immune from discovery" ( Teran v Ast, 164 AD3d 1496, 1498 [2d Dept 2018] ). Furthermore, CPLR 3101 (d) (2) provides that material prepared in anticipation of litigation or for trial is subject to a conditional privilege and "may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means" (see CPLR 3101 [d] [2] ; see Teran 164 AD3d at 1498 ). CPLR 3101 (d) (2) also provides that "in ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."
" ‘[T]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation’ " ( Cioffi v S.M. Foods, Inc., 142 AD3d 520, 522 [2d Dept 2016] quoting Ural v Encompass Ins. Co. of Am. , 97 AD3d 562, 566 [2012] ). " ‘The [work product] exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy’ " (id. quoting Hoffman v Ro-San Manor , 73 AD2d 207, 211 [1980] ). With respect to material prepared in anticipation of litigation, "[i]t is ... incumbent upon ‘the party resisting disclosure to[, in the first instance,] show that the materials sought were prepared solely for litigation and this burden cannot be satisfied with wholly conclusory allegations’ " ( Hewitt v Palmer Veterinary Clinic, PC, 145 AD3d 1415, 1415-1416 [3d Dept 2016] quoting Claverack Coop. Ins. Co. v Nielsen, 296 AD2d 789, 789 [2002] ).
Regarding the privilege issue, the Court finds that it must conduct an in camera review of the information sought before determining whether it should be disclosed to petitioner. CPLR 3103 (a) permits a court "at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought [to] make a protective order." Here, respondent seeks a protective order on the grounds that the communications are privileged and exempt from disclosure. Even if respondent had not moved for a protective order, the Court would nonetheless be compelled to exercise its discretion to determine whether such an order is necessary. To date, none of the communications sought have been produced and DiGiorgio did not adequately respond to the subpoena with the notice required by CPLR 3122 (b). Consequently, the Court is unable to discern whether any portion of the communications are exempt from disclosure pursuant to CPLR 3101 absent an in-camera review. Petitioner's motion to compel is therefore granted subject to the Court's determination whether any of the demanded material is exempt from disclosure following its in camera review of the material and consideration of nonparty DiGiorgio's privilege log (see In re Estate of Seelig, 302 AD2d 721, 724 [3d Dept 2003] ; Stephen v State, 117 AD3d 820, 820-821 [2d Dept 2014] ; see also Savage v Kredentser, 2017 WL 9703609 ).
Here, like the defendant in Stephen v State, (117 AD3d 820, 820-821 [2d Dept 2014] ), DiGiorgio did not adequately comply with the notice requirements of CPLR 3122 (b) in responding to the subpoena by indicating "the legal ground for withholding each [demanded] document ... the type of document ... the general subject matter of the document ... the date of the document; and ... such other information as is sufficient to identify the document for a subpoena duces tecum." Rather, DiGiorgio provided petitioner with a copy of his handwritten notes made on the face of the subpoena. The Stephen Court concluded that "the appropriate remedy for the defendant's failure to produce an adequate privilege log is to allow the defendant to produce an adequate privilege log and, thereafter, for the [court] to review in camera the allegedly privileged documents, along with the privilege log" (id. at 821 ).
Accordingly, it is hereby
ORDERED that petitioner's motion to compel is granted subject to the Court's in camera review of those documents responsive to the disputed portion of petitioner's subpoena and its determination whether any portion of those documents are privileged; and it is further
ORDERED that nonparty DiGiorgio is directed to provide to the Court for in camera review, within thirty (30) days from the electronic filing of this decision and order, copies of all documents responsive to the disputed portion of petitioner's subpoena; and it is further
ORDERED that nonparty DiGiorgio is directed to provide to the Court a privilege log, which shall accompany the copies of documents provided, wherein he shall identify the type of document, the general subject matter of the document, the date of the document, and the privilege, if any, asserted with respect to each such document; and it is further
ORDERED that respondent's motion for a protective order is stayed pending further determination of the Court.
This constitutes the decision and order of the Court.
Papers Considered:
Notice of Motion dated February 3, 2021;
Petitioner's Memorandum of Law dated February 3, 2021;
Affidavit of Eric J. Weinhold, Esq. dated February 3, 2021, with exhibits;
Admission and Waiver of Service of Philip A. DiGiorgio, Esq. dated February 5, 2021;
Notice of Cross Motion dated February 22, 2021;
Affidavit of Joseph L. Kay, Esq. sworn to on February 22, 2021;
Affidavit of Philip A. DiGiorgio, Esq. dated August 19, 2020;
Affidavit of Philip A. DiGiorgio, Esq. sworn to on February 19, 2021;
Respondent's Memorandum of Law in Opposition to Motion to Compel and in Support of Cross Motion;
Petitioner's Reply Memorandum of Law dated March 4, 2021; and
Affirmation of Eric J. Weinhold, Esq. dated March 4, 2021, with exhibits.