Opinion
112337/07
11-21-2011
Vladimira Koch, a/k/a VLAD'KA KOCH, MICHAEL KOCH, EUROPA DOCU-SEARCH, INC., EUROVID, INC., EUROVID FKK, HELIO NATURA, EUROPA DOCU-SEARCH, s.r.o, EUROVIDFKK, s.r.o., Plaintiffs, v. Sheresky, Aronson & Mayefsky LLP, DAVID ARONSON individually, BRAGAR, WEXLER, EAGEL & MORGENSTERN, P.C., RAYMOND A. BRAGER individually, RAGUES & MIN, ESQ., RAYMOND RAGUES, individually, D'AGOSTINO & SALVI, LLP, FRANK J. SALVI individually, Defendants.
, J.
Motion sequence numbers 19, 20 and 21 are consolidated for disposition.
In this action, plaintiff seeks compensation for the alleged negligence/legal malpractice of all of the defendants, except D'Agostino & Salvi and Frank J. Salvi (together, the Salvi Defendants), in an underlying matrimonial action against her former husband, Robert Koch (Robert). Plaintiff's claim against the Salvi Defendants is for violation of Judiciary Law § 487. The allegations of the complaint are fully detailed in the July 7, 2009 decision and order in this action. The court's decision, on motion sequence number 18 in this action, also briefly addresses the complaint allegations, which will not be repeated.
Plaintiff seeks an order, pursuant to CPLR 3126, striking the respective answers and affirmative defenses of the defendants and precluding them from giving evidence at trial in support of their respective answers and affirmative defendants. Plaintiff also seeks an order, pursuant to CPLR 3124, compelling defendants to appear for continued depositions and to comply with her document discovery demands. In addition, plaintiff moves to enforce a subpoena served on McManus, Collura & Richter, P.C. (MCR) and attorney Scott Tuttle. MCR and Tuttle represent defendants Brager, Wexler, Eagel & Morgenstern, P.C. (BWEM) and Raymond Brager in this action (together the Brager Defendants). Defendants move to compel plaintiff's continued deposition.
The Defendants' Depositions
Plaintiff complains that defendants have not complied with this court's order of May 2010, which permitted defendants to chose from among several alternatives for conducting the plaintiff's deposition, as she resides in the Czech Republic. The alternative that the defendants chose provided that their depositions be conducted prior to plaintiff's deposition in the Czech Republic. There is no dispute that the depositions of most or all of the defendants were commenced prior to the commencement of the plaintiff's deposition. Plaintiff contends that with the exception of defendant Aronson's deposition, the defendants' depositions were not completed prior to the parties' planned trip to the Czech Republic. The record indicates that the depositions were not completed because the parties ran out of time, and there is no dispute that plaintiff's deposition was also commenced, but was not completed, because the parties ran out of time. Therefore, this record does not demonstrate that the defendants have not substantially complied with the court's May 2010 order.
As to continued depositions of the defendants, plaintiff argues that she provided defendants with potential deposition dates, but that they failed to act in good faith by timely responding or providing dates for depositions. Plaintiff's attachments in support reveals that her letter concerning depositions is dated July 22, 2010, and that the letter in response is dated a week later. While perhaps not speedy, this was not an untimely response. In addition, the court has reviewed the letters and the difference in the suggested deposition dates in them amounts to a few weeks. Attorneys are supposed to attempt to work out mutually acceptable dates for depositions, and attempts to do so, as revealed by these letters, do not constitute a lack of good faith, as plaintiff contends.
Regarding deposition dates:
"Ideally, the deposition is set up by agreement among all parties, so that whatever notices pass among them merely confirm what they have already agreed to. . . . As previously indicated, it may be idle to set a day arbitrarily without first consulting other parties for their convenience. Without that consultation, the court is less likely to visit any penalty on a nonappearance"(Siegel, NY Prac § 354 [Note: on-line treatise]).
As the court previously ordered that plaintiff pay for defendants' costs for the Czech Republic depositions, contrary to plaintiff's assertion, defendants' attempt to make arrangements for payment also does not amount to bad faith. Perhaps in an attempt to demonstrate her own good faith, or defendants' bad faith, plaintiff states that defendants failed to agree to hire a special master, outside of the court system, to monitor discovery while she agreed to do so. As defendants were under no obligation to enter into such an agreement, this does not demonstrate a lack of good faith.
Plaintiff argues that the defendants have continued their defiance of the court's orders and directives and the CPLR, by directing their clients not to answer questions without reasonable grounds. The plaintiff does not demonstrate that a court order was violated by this conduct, however. Plaintiff complains that the defendants' depositions were dragged out due to defendants' refusal to answer multiple questions without appropriate grounds, but does not seek a ruling on any deposition question here or demonstrate that the depositions, held over the course of several days for certain defendants, were, overall, unnecessarily protracted by the defendants' conduct.
While plaintiff complains that defendants adjourned depositions, it was her counsel that adjourned the examination of Harris, after Harris' refusal to answer what, from the limited submissions provided by plaintiff here, appears to have been just a few questions. 22 NYCRR (Rule) § 221.1 (a) requires that parties generally answer a question posed at a deposition, preserving limited, nonspeaking objections for rulings. However, if a party fails to answer a question, generally this does not permit counsel to unilaterally adjourn depositions (id.; CPLR Rule 3113 [b] ["The deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree"]). Therefore, the deposition should have continued, marking for a ruling any questions that Harris refused to answer.
"If the parties disagree on a question and the deponent on counsel's advice declines it, the examination, as CPLR 3113 (b) would have it, should continue on other matters until the questioner has exhausted all of her questions, answered or not. Any unanswered ones to which the questioner thinks answers are required may be made the subject of a later motion for a disclosure order" (Siegel, NY Prac § 356 [Note: on-line treatise]).
Plaintiff argues that the continued deposition of Brager is required because he refused to answer question about the factual background of affirmative defenses. Article 31 of the CPLR governs discovery and, in general, there shall be "full disclosure of all matter material and necessary" to prosecute or defend an action (CPLR 3101 [a]). Discovery procedures are to be liberally construed, with the word "material and necessary" interpreted to "require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968] [emphasis added]). "The burden of showing that the disclosure sought is improper is upon the party seeking the protective order" (Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257, 258 [1st Dept 1994]).
Plaintiff's counsel does not point to page numbers in the text or make arguments about specific questions that were not answered that should have been, but improperly submits a transcript for the court to sift through. Nonetheless, the court has reviewed the submitted portion of the transcript, and parts of the transcript submitted in opposition by the Brager Defendants. The transcripts show instances when defense counsel made speaking objections, which should not have occurred, although attempts to help clarify an unclear question do not necessarily indicate an attempt to interfere with the deposition's orderly progress (see e.g. Pl. Mot. to Compel, Strike and Preclude, Exh. J., at 641-642). The colloquy between the plaintiff's counsel and Brager's counsel, in certain instances, was unwarranted and inappropriate. However, plaintiff does not demonstrate that an appropriate question was posed but not answered by the witness.
For example, the deponent answered almost every question in the transcript submitted by plaintiff in moving (see e.g. id. at 637, 639, 651,656, 658, 664, 666-669 [questions answered]; 658 [question not answered concerning conclusion of law regarding defense that complaint failed to specify with particularity the circumstances constituting fraud]; 660 [objection about question concerning defense to cause of action previously dismissed]). That plaintiff's counsel was not satisfied with the answers given by the witness does not change this, and plaintiff's counsel was previously instructed by this court that he was to accept the answers given by deponents.
Plaintiff has not discussed this question and whether or not this claim was dismissed. While the scope of a pretrial examination is broader than at trial, where a cause of action has been dismissed, it is not apparent how discovery directly concerning a defense to the dismissed claim is useful, or would assist in preparation for trial, as the dismissed claim will not be tried.
Moreover, some of the questions that plaintiff's counsel asked Brager were inappropriate, and could be viewed as harassment. For example, plaintiff's counsel's questions and comments about the deponent's ability to locate things quickly from a file of over 1,600 pages that the deponent had not worked on in years was not appropriate and merely wasted time. Moreover, if plaintiff's counsel knew where a document was in the voluminous file, he should not have wasted time by repeatedly requesting that the deponent search the file for it.
Furthermore, the interpretation of a pleading is not properly a matter for testimony (Blitz v Guardian Life Ins. Co. of Am., 99 AD2d 404, 405 [1984]). While, of course, it is permissible to ask questions about the facts upon which a pleading is based, essentially the purpose of discovery, here plaintiff's counsel asked the deponent about his knowledge of facts supporting a defense of failure to state a cause of action that is contained in the Brager Defendants' answer to the complaint. The defense of failure to state a cause of action is generally interpreted as a defendant's assertion that the facts of the complaint, even if presumed true, do not state a legally viable claim. Plaintiff's query, as to whether or not the deponent was aware of facts that would support this defense, while containing the word "facts," required the deponent to discuss the Brager Defendants' legal theory for contending that certain of plaintiff's causes of action failed as a matter of law.
Rule 221.2 forbids a direction not to answer a question except where doing so would violate a privilege or a "right of confidentiality". . . or where the question is both "plainly improper" and "would, if answered, cause significant prejudice to any person." Directing a party to answer a question about current legal theory or strategy would be the cause of significant prejudice to that party, and is improper. Furthermore, this type of question does not concern the events that occurred while the Brager Defendants were representing the plaintiff in the underlying matrimonial action, and therefore is irrelevant.
Plaintiff's counsel indicated that he was adjourning the deposition because he sought to continue this type of questioning, stating at the deposition that he had given opposing counsel several warnings and "apparently you didn't listen" (see e.g. Pl. Mot. to Compel, Strike and Preclude, Exh. J., at 672), but does not request a ruling on the questions. While plaintiff may be entitled to a continued deposition, if she has other types of questions that she wants to put to the witness, she has not stated that here. Therefore, plaintiff's motion to compel Brager's continued deposition, is denied without prejudice to renewal after the completion of the other party depositions in this action.
Plaintiff's counsel submits a letter which states that Attorney Tuttle misinformed the court on several occasions that the deposition of Brager was cancelled, rather than adjourned. The transcript page plaintiff submits in support of the letter, however, merely demonstrates that plaintiff's counsel stated on the record that the deposition was adjourned (Pl. Mot. to Compel, Strike and Preclude, Exh. M). As plaintiff's counsel was not permitted to unilaterally adjourn the deposition, whether or not the deposition was adjourned or cancelled is a quibble over semantics.
Plaintiff's counsel "adjourned" the Brager deposition, after posing the question "[a]re you aware of the final decision and order in the matrimonial matter which we have reviewed together" (id. at 670), to which defense counsel objected to the form, and began a speaking objection.
While there is no excuse for any counsels' failure to strictly adhere to every aspect of Rule 221, the conclusion to be drawn from reading the submitted deposition segments is that plaintiff's counsel is also responsible for the delays about which he complains. In addition, the record does not otherwise support the harsh sanctions plaintiff seeks of striking the defendants' pleadings. However, all of the counsel in this action should generally refrain from rephrasing questions being asked by an attorney conducting a deposition, from asking for clarification of a question (allowing the witness to do so), and from inserting information into the questioning attorney's question. Certainly the defendant-deponents in this action, all of whom are attorneys, are well-equipped to ask for clarification of something that they do not understand.
Preclusion at trial is also not warranted based on these alleged deposition infractions, or, as discussed below, the failure to exchange paper discovery. Furthermore, plaintiff's motion is not specific enough that the court could make any ruling "precluding defendants from giving evidence at trial in support of their answers and affirmative defenses or matters set forth in their responsive pleading to which defendants have failed to give the answers at the deposition or through disclosure" (Pl. Notice of Mot. to Compel, Strike and Preclude). Plaintiff fails to specify a particular defense that should be struck, accompanied by the reference to a specific related, relevant and proper unanswered deposition question, or a specific disclosure device, or portion thereof, to which a response has not been provided, despite plaintiff's good faith effort to resolve any dispute. The court will not search the record to find evidence in support for an argument. Moreover, plaintiff's counsel's affidavit, filled with conclusory assertions (id., Exh. N), is insufficient to support the harsh sanctions of striking a pleading or preclusion at trial.
In the interest of not putting form over substance, the court will permit the continued limited deposition of Harris and Ragues. Ragues' deposition has been addressed more fully elsewhere in the decisions rendered in response to this round of the parties' motions. Regarding these depositions, counsel for plaintiff is directed to continue on with deposition questions until he has completed his deposition, without adjourning the deposition. If the deponent does not answer a question, any party may seek appropriate judicial relief by calling the court, or upon a proper record.
The court will not outline the scope, or nature, or type of questions that may be asked at Ragues's or Harris's deposition, as this type of prospective order is not favored. However, it is established law that a defendant attorney may, to a certain extent, be questioned as an expert in a legal malpractice action (Lippel v City of New York, 281 AD2d 327, 328 [1st Dept 2001] [stating the McDermott rule is not limited to medical malpractice cases]; Lingener v State Farm Mut. Auto. Ins. Co., 195 AD2d 838 [2d Dept 1993] [cited to in Lippel, supra]). Therefore, defendants are not shielded from questions as to: the criteria for taking or not taking certain actions as counsel in the matrimonial action; the witness's opinion or knowledge about required standards and whether or not counsel's actions conformed to them; or about other issues "that bear on the controversy" (Lingener, 195 AD2d at 838; Lippel, 281 AD2d at 328; see also Gardner v Wider, 32 AD3d 728, 730 [1st Dept 2006] [defendant doctor in a medical malpractice action may be called to testify to the facts of the case and to his "knowledge of the proper medical standard as well as his possible awareness of his deviation from that standard"] [citation omitted]). Such questions must bear on the controversy, however, and where they do not (see e.g. Ecker Op. Aff,. to Pl. Mot. to Strike, Preclude or Compel, Exh. U, at 177-181 [reflecting continued argument over validity of objection about irrelevant hypothetical question about interest on money owed to a client by a law firm]), they may not be appropriate.
This is not to imply that plaintiff's counsel's question to Harris about her knowledge about attorney disclosure requirements to a client when an attorney believes that her firm has committed malpractice, while perhaps warranting an objection as to form, was otherwise improper. An attorney may testify as to her knowledge, if any, concerning the existence and parameters of such an obligation.
As Harris only billed for work on the matrimonial action for about 11 hours, and has already been deposed for approximately seven hours, while the court will permit her continued deposition, unless there are extenuating circumstances, the deposition should last no longer than a day, if that much time is even required.
The Parties' Document Discovery
While plaintiff moved to compel defendants to comply with various discovery demands, other than unsupported or barely supported assertions concerning alleged missing documents from the legal files from the matrimonial case, she points to no discovery demand that has not been complied with. Plaintiff's mere dissatisfaction with defendants' production, without more, is not a sufficient basis for a finding of willfulness, for striking a pleading or for a preclusion order (see Commerce & Indus. Ins. Co. v Lib-Com, Ltd., 266 AD2d 142 [1st Dept 1999]). The Plaintiff's Deposition
The defendants in this action seek plaintiff's continued deposition. The commencement of plaintiff's deposition in the Czech Republic was an accommodation to her stated inability to travel freely to the United States. From three options provided by this court in a prior order concerning plaintiff's deposition, defendants chose to travel to Prague. Plaintiff's counsel informed defendants' counsel that the depositions had to be conducted from Monday to Friday, and that depositions could not be conducted on weekends (see Def. Jt. Affirm. to Compel Pl.'s EBT, Exh. J). The record reveals that plaintiff's deposition did not commence until Tuesday at 1:30 p.m., and plaintiff does not dispute that she caused the deposition to be commenced at that hour. It is also undisputed that there was an issue with the interpreter, and that the deposition was not completed by Friday.
Plaintiff argues that because defendants picked the option to perform the deposition in Prague, with plaintiff paying the costs, they must remain with that option, which included conducting defendants' depositions before plaintiff. The court does not agree. Defendants went to Prague to accommodate plaintiff's stated inability to come here, the reason that the plaintiff was put to the expense of paying for the trip and the defendants to the inconvenience of traveling to the Czech Republic in winter. No fault of any party is demonstrated concerning the interpreter issue that arose, an unfortunate and unanticipated occurrence. Despite the limited time, plaintiff, did not appear for the deposition until mid-afternoon on Tuesday. In addition, despite her counsel's argument about defendants' speaking objections, the transcript demonstrates innumerable instances where plaintiff's counsel had much to say on the record.
The circumstances since the last order written concerning the plaintiff's depositions have changed. Furthermore, it is well known that the court has broad discretion to make any discovery order that is just, appropriate and needed (CPLR 3103). Defendants do not wish to return to Czech Republic, in winter, and plaintiff states no reason why her continued deposition should be there, when videoconferencing is less expensive, more convenient for the majority of litigants in this action, adequate (see Rogovin v Rogovin, 3 AD3d 352 [1st Dept 2004] [permitting teleconferencing]), and the method proposed by plaintiff earlier in the action. There is also no longer a reason not to follow normal deposition priority.
Therefore, plaintiff's deposition is to be conducted by video-conference, and to commence within 45 days of the date of this order. The deposition is to be conducted from 8:00 a.m. to 2 p.m. EST, on weekdays that are not holidays. The plaintiff may chose to allow the deposition to continue later, if that is more efficient in possibly finishing the deposition in fewer days, and if defendants agree to this. Furthermore, the plaintiff's deposition will be conducted before the remaining continued depositions of the defendants, except for the Salvi deposition, which is to be conducted commencing on November 24, 2011, as stated in the October 27, 2011 discovery order, regardless of whether or not the plaintiff's deposition has at that time begun.
On a prior motion, plaintiff stated that a deposition from 8 a.m to 4 p.m. EST was acceptable, therefore, from 8 a.m. to 2 p.m. should not be a hardship.
If the parties cannot agree on exact dates for the depositions, which should be sent to the court, by e-mail, on a so-ordered stipulation, within 20 days of the date of this order, then they should alert the court that this is the case, and the court will issue an order with a deposition schedule for the parties, about which they will not be consulted, and to which no changes will be permitted, barring a documented emergency situation. In the event of such an emergency, the court will again choose dates for the parties, without their input. Once depositions are scheduled in this case, there are no adjournments of any date without prior court consent, to be granted only upon the submission of written proof of an emergency situation.
The Subpoena of McManus, Collura & Richter, P.C. and Scott Tuttle
The plaintiff moves to enforce a subpoena served on MCR and Tuttle, who represent defendants BWEM and Brager in this action. In addition to testimony, the subpoena commands production of the MCR's entire legal file in this case, as well as the legal file of BWEM. Plaintiff also demands that MCR produce documents relating to any retainer agreement, invoices and payments exchanged between MCR and any defendant to this action. The subpoena also requests all documents concerning evidence related to any defendant's cross claim or affirmative defense, with 38 demands in all, including, as an example, any and all documents "concerning evidence relating to any and all meetings and/or communications with any other person or entity not identified above or any of its attorneys, agents, brokers and or employees or similarly situated entities on behalf of Defendants in the Koch Malpractice Action" (Kovarik Aff. in Op. to Mot. to Quash, Exh. B, ¶ 34). A subpoena, like the one here, that fails to specify with reasonable precision the records sought is not enforceable (Grotallio v Soft Drink Leasing Corp, 97 AD2d 383 [1st Dept 1983]). In addition, the court is not required to go through this overly broad, burdensome document to prune it (cf. Petraglia v Laiacona, 86 AD2d 747 [4th Dept 1982]; Butler v District Council 37, Am. Fedn. of State, County & Mun. Empls., AFL-CIO, 72 AD2d 720 [1st Dept 1979]; see also Itzloff v Allstate Ins. Co., 59 AD2d 854 [1st Dept 1977] [burden of serving a proper demand is upon counsel, not the courts]).
Plaintiff argues that the depositions and discovery from Tuttle and MCR are necessary because they may have improperly or illegally obtained information from the Czech Republic Consulate. Plaintiff provides no copies of the law of the Czech Republic (with translations) or an affidavit from an attorney, with citation to Czech Republic law, explaining the alleged violation, and her papers are not sufficient to enable to court to even evaluate if there is a basis for this assertion (see Ponnambalam v Sivaprakasapillai, 35 AD3d 571 [2d Dept 2006] [party seeking application of foreign law did not plead its substance or provide the court with sufficient information to enable it to take judicial notice of the law at issue]; Warin v Wildenstein & Co., 297 AD2d 214 [1st Dept 2002]).
The letter plaintiff submits in support of her motion, purportedly from the Minster of Foreign Affairs of the Czech Republic, addressing plaintiff's letter complaint concerning the alleged improper contact with the Consulate, appears to indicate that the information to which plaintiff objects was from a public database and states "we cannot refuse to disclose general information from publicly available sources to anyoone [sic] who requests them" (Translation of letter of Ing. Vladimir Valky, Director General Inspection, at 2). This does not demonstrate that Tuttle improperly or illegally obtained any information. Tuttle does not deny that he received the information from the Consulate, but, in fact, affirms it. Therefore, the court does not understand plaintiff's argument that if MCR did not obtain information in the way previously stated, it would be a fraud on the court as to plaintiff's purported ownership of the company Naturist.Finally, a jointly filed motion that does not contain privileged information is not indicative of waiver of attorney-client privilege by a filing party. Plaintiff's counsel states that Tuttle has otherwise indicated that he represents the other defendants in this action, but does not state when, where or how he has done so, and this unsupported assertion is disregarded.
While plaintiff argues that Brager testified that plaintiff's file was delivered in a different format to her than to her attorney, she does not state the nature of the difference. Moreover, Brager has provided an affidavit of a good faith search to plaintiff, with which she has not taken issue here. As to what was produced, Brager avers that he has produced what the firm retained of the matrimonial file with the exception of some e-mail correspondence that a consultant that BWEM hired has not been able to retrieve. This record contains no evidence that MCR has documents from the matrimonial file that have not been exchanged, other than the e-mail correspondence just discussed. Consequently, plaintiff provides no persuasive basis for requesting Tuttle's deposition or MCR's file, and for this reason, and those discussed above, the subpoena is quashed in its entirety. No party's motion for sanctions, and or attorneys' fees and costs is granted.
To the extent that plaintiff continually contends that the defendants, and others, have not provided her legal files, the record here does not reveal support for that contention. Plaintiff's counsel also states that issues of spoliation become more apparent with every turn of this action, but this is not a spoliation motion.
Brager also testified at his deposition that everything in is possession was provided to counsel. The court has previously ordered good faith affidavits from defendants, and their counsel in this action.
The Harris and Ragues Depositions are to be conducted within 60 days after the completion of plaintiff's deposition.
In light of the foregoing, it is
ORDERED that plaintiff's motion to enforce the subpoena served on McManus, Collura & Richter, P.C. and Scott Tuttle (Motion Sequence Number 19) is denied; and it is further
ORDERED that the motion by plaintiff for an order striking the respective answers and affirmative defenses of the defendants and precluding defendants from giving evidence at trial in support of their respective answers and affirmative defendants and to compel discovery (Motion Sequence Number 20) is granted in part, as set forth above, and is otherwise denied; and it is further
ORDERED that defendants' motion to compel plaintiff's continued deposition (Motion Sequence Number 21) is granted as set forth above; and it is further
ORDERED that any party's motion for sanctions, costs or attorneys' fees is denied.
ENTER:
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J.S.C.