Opinion
09-19-2016
Crocker C., Plaintiff, v. Anne R., Defendant.
Coffinas & Lusthaus, P.C. Meredith Lusthaus, Esq. Attorney for Plaintiff 186 Joralemon Street, Suite 910 Brooklyn, New York 11201 Raoul Felder and Partners By: Raoul Felder, Esq. Attorney for Defendant 437 Madison Avenue New York, New York 10022
Redacted Coffinas & Lusthaus, P.C.
Meredith Lusthaus, Esq.
Attorney for Plaintiff
186 Joralemon Street, Suite 910
Brooklyn, New York 11201 Raoul Felder and Partners
By: Raoul Felder, Esq.
Attorney for Defendant
437 Madison Avenue
New York, New York 10022 Jeffrey S. Sunshine, J.
Introduction and Background
On May 6, 2016, defendant-wife moved by notice of cross-motion [motion sequence # 16] requesting the following relief: "a) compelling the Plaintiff to fully and completely disclose all Spyware (newly discovered OwnSpy, mSpy or otherwise) used and/or purchased by the Plaintiff or on his behalf, including, but not limited to, dates of utilization and/or purchase as well as all other relevant and material information concerning the foregoing; b) compelling the Plaintiff's appearance at his deposition (he did not appear for his last-scheduled deposition — the details are discussed in this cross-motion); and c) granting Defendant such other and further relief as this Court deems just, proper and equitable." In support, defendant's counsel provides his affirmation dated May 6, 2016 and an expert's affidavit from defendant's computer expert, Yalkin Demirkaya, dated May 4, 2016.
Plaintiff, pro se, filed an affidavit in opposition dated May 18, 2016. Defendant's counsel filed an affirmation in reply on May 23, 2016. On May 16, 2016, immediately after filing motion sequence #16, plaintiff filed motion sequence #17 seeking an award of counsel fees from defendant. The parties and counsel, including the attorney for the children, were present for a previously scheduled court appearance on May 24, 2016. Based upon the record in open court on May 24, 2016 the Court issued a sua sponte order pursuant to which motion sequence #16 was held in abeyance pending briefing, oral argument and written decision of plaintiff's application for counsel fees. The Court issued an oral decision on the record on June 24, 2016 granting plaintiff's motion sequence #17 to the extent of awarding him additional pendente lite counsel fees in the amount of $35,000.00 to be paid by defendant. The Court subsequently issued a written order dated June 29, 2016 so ordering the minutes of that oral decision. Plaintiff retained counsel who appeared by filing a consent to change attorney dated July 1, 2016. A court appearance was scheduled for August 9, 2016; however, that court appearance was advanced, on consent after a conference call between chambers staff and all counsel, from August 9, 2016 to August 5, 2016.
The parties and counsel, including the attorney for the children, appeared for oral argument of this motion on August 5, 2016.
This Court previously issued an extensive sixty-one (61) page written decision dated September 18, 2015 which fully details the facts and procedural history of the prior motion practice between the parties involving defendant's allegations that plaintiff installed spyware on her iPhone in the weeks immediately before he commenced this divorce action and that he used that spyware to surreptitiously monitor her confidential and privileged communications including, allegedly, communications between her and her counsel in this proceeding. Neither party appealed the September 18, 2015 decision and the time to appeal that decision has expired. The Court's finding in that decision, including but not limited to the negative inference against plaintiff as it relates to his invoking his Fifth Amendment right against self-incrimination on the issue of whether he installed spyware on defendant's iPhone, are now law of the case (see generally People v. Evans, 94 NY2d 499, 706 NYS2d 678 [2000]).
See Crocker C. v. Anne R., 49 Misc 3d 1202(A), 2015 NY Slip Op. 51365(U) [Sup. Ct. 2015].
Thereafter, on consent of the parties by stipulation dated October 28, 2015, the Court issued a written order dated November 5, 2015 appointing retired Justice of the Appellate Division Honorable Ariel Belen as the attorney referee to review plaintiff's computing devices and issue a report on the extent to which plaintiff used the spyware he installed on defendant's iPhone to monitor her confidential and/or privileged communications, including whether he intercepted and monitored her communications with her attorneys in this action based upon this Court's written decision dated September 18, 2015. The parties and their respective counsel and computer experts have had several conferences with the court-appointed attorney referee and they entered into a stipulation dated April 4, 2016 which details, inter alia, the mechanics, procedure and protocols by which plaintiff's computing devices will be examined by the computer experts and what communication is permitted between counsel and the experts and the court-appointed attorney referee.
New Allegations of More Extensive SpyWare
The previous motion practice which resulted in the September 18, 2015 decision involved allegations raised by defendant related to a spyware program called "mSpy." Now, in his expert's affidavit annexed to defendant's current motion, which is the subject of this decision, the defendant's computer expert, avers that he has uncovered log files on defendant's iPhone that show that plaintiff also installed another spyware program — called "OwnSpy" — in addition to "mSpy" on defendant's iPhone in the weeks before plaintiff commenced this divorce action.
In his May 4, 2016 affidavit defendant's computer expert argues that OwnSpy has more invasive features than mSpy because OwnSpy can "turn the compromised iPhone...into an open microphone , allowing the attacker to surreptitiously eavesdrop on room conversations and record them [emphasis in original]" in addition to monitoring the victim's e-mails, texts, telephone calls and physical location using the GPS feature of the iPhone. The defendant's computer expert avers that OwnSpy has "GPS features, which enable the attacker to monitor and track the whereabouts of the target and remotely turn on the AudioSpy feature of the spyware to listen to and record room conversations" so that the attacker can pin-point when certain conversations may take place and specifically listen in on those conversations.
Defendant annexes documentation showing that a 30-day license of OwnSpy "Gold", the version her computer expert uncovered on her iPhone, can be purchased from Mobile Innocations SL using PayPal and that it costs "?.99 (approximately $64)...." Defendant annexed copies of plaintiff's PayPal statements showing payments of $64 to Mobile Innovations on October 7, 2014 and on October 15, 2014.
Defendant's counsel avers that plaintiff refused to provide his PayPal records despite a demands being made for them during depositions of plaintiff on April 30, 2015 and May 5, 2015. Defendant's counsel contends that he had to subpoena PayPal because plaintiff continued to ignore defendant's demands for his PayPal records. Defendant's counsel asserts that the subpoena was served on notice to plaintiff, pro se, and the attorney for the children and that no objections were raised. In his opposition dated May 18, 2016 plaintiff denies that he failed to produce his PayPal records: he contends that they were provided through his prior counsel "in May of 2015" and that he directly provided updated PayPal records to defendant's counsel "in January of 2016" in response to a request for updated financial disclosure.
Defendant's computer expert asserts, and defendant annexed documentation supporting this position, that in the weeks before plaintiff downloaded mSpy to defendant's iPhone the mSpy software discontinued the feature that allowed an attacker to activate the microphone feature and record ambient room conversations. Defendant's computer expert avers that in October 2014 the version of OwnSpy that was installed on defendant's iPhone still provided the feature that permitted the attacker to activate the "bugged" iPhone's microphone in order to "listen in" and record room conversations. Defendant's computer expert's affidavit details that the attacker has to manually — albeit remotely — activate the open microphone feature to "listen in" and record room conversations where the victim's iPhone is located.
Defendant's computer expert avers that OwnSpy "creates log files of its activity in the target's...phone" which includes details about which features of the software are activated by the attacker and when each feature was being used. He also avers that the open microphone feature can only be activated manually. As such, he avers, when the log files show that the open microphone feature was in use the attacker was purposefully and actively using the spyware to listen in to specific conversations. An attacker using OwnSpy would have access to the victim's calendar, GPS location and the open microphone so the attacker could cross-reference the victim's location and calendered activities and meetings to listing in on specific conversations. Here, the allegation is that plaintiff purposefully used OwnSpy to listen in on defendant's conversation with her counsel the day before plaintiff commenced this divorce action.
Defendant's computer expert avers that he uncovered OwnSpy log files on defendant's iPhone for each day from October 25, 2014 to October 31, 2014. He states that those log files contain "over 7,000 pages of logging information" showing, among other things, what software features the attacker was using at any given date/time. According to Defendant's computer expert's affidavit the uncovered OwnSpy log files show that plaintiff's e-mail and telephone number were used to register, install and set-up the OwnSpy software on defendant's iPhone. He also avers that as late as October 31, 2014, the OwnSpy software was "configured to track the target's...location; collect her web history, her call history, her pictures taken, her SMS/text messages, her address book, her keystrokes, and her e-mails; and her calling recording was configured to automatically record all conversations between the target...phone" and certain telephone numbers including her mother and siblings.
Defendant's counsel argues that because plaintiff had access to OwnSpy he was able to, in effect, steal defendant's passwords using OwnSpy's keystroke recording feature so that he had access to all of defendant's password protected accounts, including her e-mail, even after he may have stopped using spyware to monitor her. He argues that having stolen defendant's passwords using the spyware plaintiff was able to log into defendant's e-mails and gain assess to her confidential and/or privileged communications directly.
He further avers that the uncovered OwnSpy log files show that on October 27, 2014 the attacker activated the "Live Audio (Audio Spy) feature, allowing surreptitious eavesdropping on room conversations" and that the GPS records on defendant's iPhone reveal that the attacker activated that feature at the exact times that day when defendant was in a session with her treating psychiatrist and later when she was at her counsel's law firm meeting with her attorneys in this action. Defendant's computer expert also avers that "[t]he capabilities of this spyware [OwnSpy], which was implanted from October 10, 2014 to October 31, 2014, suggest that [plaintiff] could intercept, record, and download privileged and confidential conversations with [defendant's] attorneys, physician, her family and their attorneys, financial advisors, etc."
Defendant's computer expert asserts that a thorough review of plaintiff's computing devices is required to determine whether or not plaintiff intercepted defendant's confidential and/or privileged communications even after the date of any spyware software may have stopped because plaintiff had activated the keystroke record feature of OwnSpy in October 2014 and therefore he had access to defendant's passwords and key codes so he could access her communications even after any spyware was no longer in use. He contends that "it is now more important than ever that all of [plaintiff]'s computing devices be forensically examined in order to determine the full extent of his actions."
Defendant's counsel contends that plaintiff should "affirmatively disclose — fully and completely — all spyware...used and/or purchased by the Plaintiff or on his behalf, including, but not limited to, dates of utilization and/or purchase, actual utilization, what he learned or recorded, the people he shared the information with as well as all other relevant and material information concerning the foregoing." Defendant's counsel adds a footnote that this relief is necessary because any subpoena power, he states, "is limited and likely of no effect with respect to OwnSpy (a Spanish entity — basically an illegal business, which we understand does not maintain records) and mSpy (a British entity — also operating basically an illegal enterprise). At oral argument defendant's counsel argues that plaintiff remotely tracking defendant's location through the GPS function of her iPhone and then purposefully activating the "open microphone" feature of OwnSpy when she was located at her psychiatrist's office and her attorney's office on October 27, 2014 clearly demonstrate that plaintiff violated defendant's attorney-client privilege and doctor-patient privilege.
In his attorney affirmation, defendant's counsel argues that the OwnSpy log files uncovered by defendant's computer expert are extremely relevant because they show that plaintiff remotely turned defendant's cell phone into a "surreptitious microphone, picking up what was said, and transmitting it to the perpetrator — in this case even [defendant's] meeting with her psychiatrist and attorney" just one day before plaintiff commenced this divorce action. Defendant's counsel argues, in effect, that if plaintiff continues to invoke his Fifth Amendment right against self-incrimination and refuses to fully disclose all spyware he installed on defendant's iPhone and whether or not he used it to monitor her confidential and/or privileged communications that defendant's iPhone and the OwnSpy logs uncovered by defendant's computer expert should be provided to the court-appointed attorney referee to consider when issuing the report.
Defendant's counsel contends that during the dates in October 2014 when he alleges plaintiff activated OwnSpy on defendant's iPhone she attended "a family meeting in Arizona with her mother..., her brother..., her sister... and their attorneys and financial advisors." He argues that plaintiff used OwnSpy in an attempt to "gain an upper hand in this litigation" and in fact caused an "unlevel playing field dating back to the commencement of this action in October 2014 (even beforehand)."
During oral argument defendant's counsel asserted:
...[plaintiff], by virtue of not disclosing the OwnSpy records and any other spyware that may be out there, because the only person in the room, Judge, that knows the extent of this is [plaintiff], better than any expert and better than his wife, by virtue of him not disclosing this and us only finding this information out with a lot of luck in March of 2016, what the Court had previously indicated in September, 2015, wtih respect to the mSpy allegations and whether [defendant's] ability to participate in this proceeding involving the custody of her children, equitable distribution, child support and maintenance, given the OwnSpy discovery, we don't think there will ever be a level playing field because [plaintiff] acted the very next day and what [defendant] confides in with her counsel and her therapist was intercepted the very day before commencement and that tainted the whole proceeding.
Defendant's counsel requests that the Court expand the order of reference to the court-appointed attorney referee to "direct Judge Belen to get these log files" found on defendant's iPhone because the order of reference only directs the examination and report on plaintiff's computing devices. Defendant's counsel, at oral argument, requested that "[i]n the interest of justice, and given what's been discovered, we would ask that [defendant's] phone and these log files be provided forthwith to Justice Belen."
In his opposition affidavit dated May 18, 2016 plaintiff argues that defendant is not entitled to the relief she requests regarding OwnSpy and an affirmative statement from him regarding any and all spyware he acquired. He argues, in effect, that defendant's iPhone has been "unsecured by the Court or any third party" during the year since his computing devices were seized by the Sheriff of the City of New York pursuant to this Court's September 18, 2015 decision and order and that she, or someone else, could have tampered with her iPhone so the Court should not consider it or any log files alleged to have come from it.
He also argues that defendant and her counsel violated the provision of the parties' April 4, 2016 stipulation which provides that the parties' computer experts "shall cooperate, in good faith, to work towards resolving, with Justice Belen, the issues presented by the Court's September 18, 2015 Decision and Order...." when they permitted defendant's computer expert perform additional forensic research on her iPhone without plaintiff's computer expert. He further argues that defendant "had ample opportunity to raise" the issue if she believed her iPhone should be included in the forensic examination. Plaintiff asserts in his affidavit in opposition that "the Court should consider appropriate judicial sanctions" against defendant, her counsel and her computer expert because they uncovered potential evidence that he installed additional spyware on defendant's iPhone outside the supervision of the court-appointed attorney referee.
In his affirmation dated May 23, 2016 defendant's counsel denies that the additional review of defendant's iPhone by her computer expert violated the April 4, 2016 stipulation in any way and avers that the stipulation expressly provides that the parties are permitted to speak with their respective computer experts, specifically providing that communication is permitted between the experts and their clients regarding "communications made in connection with any motion made..." Additionally, defendant's counsel asserts that the more "particularly detailed analysis" of defendant's iPhone by defendant's computer expert took place on March 25, 2016 before the parties' entered into the April 4, 2016 stipulation. He also asserts that even if the April 4, 2016 had been in effect as of March 25, 2016 that defendant's computer expert's additional review would not have violated the stipulation because there was a specific carve-out allowing the experts to speak with their clients regarding motion practice. Lastly, defendant's counsel argues that the April 4, 2016 stipulation does not apply to defendant's iPhone because the stipulation is limited to how the parties' experts will work together under the court-appointed attorney referee's supervision relating to plaintiff's computing devices. Defendant's counsel argues that plaintiff's "[c]ourt Orders are taken very seriously. Attempting to improperly use a Court Order in Court papers and in open Court to violate attorneys and their experts should be treated even more seriously."
This issues was discussed extensively on the record during the court appearance on April 4, 2016 [transcript pages 21 - 25].
Defendant's counsel argues that plaintiff "never once disclosed to the Court, to counsel, or to [defendant], his purchase and utilization of OwnSpy" and that plaintiff neither denied that he purchased and utilized OwnSpy nor did he invoke his Fifth Amendment privilege against self-incrimination in his affidavit in opposition. At oral argument, defendant's counsel requested that the Court deem plaintiff's failure to deny the allegations as set forth in defendant's cross-motion to be an admission. At oral argument, plaintiff's newly retained counsel argued that plaintiff's failure to respond to defendant's allegations should not be deem as admissions because "[p]laintiff was pro se at that time" and that he "has repeatedly and continually taken the fifth amendment of all of these issues and he continues to do so."
Defendant's counsel asserted at oral argument that plaintiff's failure to reveal that he had discontinued using mSpy before the date of commencement and was instead using the more expansive spyware OwnSpy to monitor defendant's location, intercept her communications and her keystrokes (including her passwords) and to activate the microphone on her iPhone to listen in and record conversations she had, including those with her psychiatrist and counsel, was "a fraud on Judge Belen, fraud on the Court, given the Court's order, because [plaintiff] knew quite well...that of course you are not going to see the mSpy records, you are not going to see mSpy functioning around the time of commencement...because at that point in time he [was] using OwnSpy...."
Plaintiff's counsel at oral argument on August 5, 2016 asserted that defendant should not be permitted to provide her iPhone and the OwnSpy logs uncovered on her iPhone to the court-appointed attorney referee because the Court's originally order of reference only includes plaintiff's computing devices.
MS. LUSTHAUS: "...The order of reference to Judge Belen is very clear that it's to determine if confidential communications were intercepted, and if so, to what extent, by looking at the emails, the documents, whatever data has been stored on plaintiff's computing devices."
THE COURT: So, your argument is now that they found more it's off limits?
MS. LUSTHAUS: No, not now that they found more it's off limits. What they are claiming to have found on her devices I don't think furthers that investigation.
The Court inquired on the record whether plaintiff installed the OwnSpy spyware alleged by defendant.
THE COURT: Ms. Lusthaus, did your client install the latest spyware that they allege on this phone, how do you respond on behalf of your client?
MS. LUSTHAUS: My client is taking the fifth amendment on that question.
The Court subsequently inquired again of plaintiff through his counsel on the record.
THE COURT: ...He is taking the Fifth Amendment on issues related to Own[Spy] and he is refusing to answer any of the questions, correct, —
MS. LUSTHAUS: Judge — —
THE COURT: — — under the Fifth Amendment?
MS. LUSTHAUS: There is no question, these are broad topics. I can't say with regard to each broad topic. I can say with regard to the question your Honor posed that, yes, he will take the Fifth Amendment.
Plaintiff's counsel asserted at oral argument that plaintiff was unwilling to make any affirmative disclosure related to spyware, as defendant seeks in her cross-motion, because "there aren't specific questions" and because plaintiff will continue to invoke his Fifth Amendment right against self-incrimination on any questions related to his use of spyware in this action.
Scheduling Continued Depositions Dates of Plaintiff
Defendant's counsel contends that plaintiff has willfully failed to appear to continue his deposition despite defendant properly serving a Notice to Take Continued Deposition upon plaintiff for December 17, 2015. Defendant's counsel avers that plaintiff requested to adjourn the December 17, 2015 date and defendant consented to the mutually agreed upon date of January 26, 2016, which plaintiff agreed to in an e-mail dated December 14, 2015. Defendant's counsel contends that plaintiff was unavailable for other deposition dates at the end of December 2015 because he was traveling out of the country with his girl-friend. Defendant's counsel avers that on January 19, 2016 — a week before the agreed upon adjourn date of the continued deposition — plaintiff requested a further adjournment of the continued deposition. At that time, defendant did not consent and defendant's counsel notified plaintiff on January 25, 2016 that the previously agreed upon deposition date of January 26, 2016 would not be adjourned. Defendant's counsel avers that on January 26, 2016 defendant was ready to proceed with the continued deposition of plaintiff with a stenographer and videographer present but plaintiff did not appear. Defendant's counsel argues that plaintiff's failure to appear was willfully in as much as plaintiff offered no reason for his non-appearance and his SoberLink reports from that day show that plaintiff was in Princeton, New Jersey at 9:14 a.m.; 1:36 p.m. and 7:29 p.m.. Defendant's counsel points out that plaintiff's girl-friend lives in Princeton, New Jersey.
Defendant's counsel argues that without a court order plaintiff will not appear for his continued deposition which will prejudice defendant's "rights as well as delaying the completion of discovery."
In his opposition affidavit dated May 18, 2016 plaintiff argues that "it would be inequitable and inefficient to devote more days to deposition until the Hear & Report [sic] process is resolved..." because, he alleges, defendant "has never complied with the majority of the financial discovery requests" he made and "given the significant amount of time that has elapsed since the initial production of financial documents in March of 2015...much of the financial data is currently stale and is likely to be stale again by the time the Hear & Report [sic] process is concluded."
Plaintiff also opposes defendant's demand to continue his deposition on the basis that defendant "has already had three full days of videotaped deposition to review the Plaintiff's very well documented and uncomplicated financial circumstances."
Plaintiff argues that if defendant is allowed to continue his deposition that "it is highly probable" that she will "attempt to pose additional questions related to the allegations of computer surveillance" and that those issues should all be dealt with "under the supervision of Justice Belen, rather than through yet another attempt to circumvent that process by the Defendant and her counsel."
Plaintiff, in his affidavit in opposition, requests that the Court stay any further deposition dates and financial discovery should not proceed until after a report is issued by the court-appointed attorney referee.
Plaintiff asserts, in effect, that defendant's counsel should not have prepared to continue his deposition on January 26, 2016 because plaintiff shared these scheduling concerns with him by correspondence dated January 19, 2016 but that defendant's counsel "went ahead with holding the event and hiring a videographer and court reporter, demonstrating a disregard for wasteful financial expenditures and the bottomless resources the Defendant brings to this litigation."
In his attorney affirmation in reply dated May 23, 2016 defendant's counsel argues that plaintiff "advances a meritless position, and one without any supporting authority" in opposition to defendant's demand that he continue his deposition. Defendant's counsel argues that "inequitable and inefficient" are, under the circumstances presented here, not a "sufficient bases, as a matter of law, for a party to not appear at a duly noticed deposition." Defendant's counsel argues that there "is not any stay of our discovery rights and the Plaintiff should be compelled to appear at his continued deposition."
At oral argument defendant's counsel argued that it would be "unfair to [defendant] who has done nothing wrong here" to stay all discovery, as plaintiff wants to do, until the final report of the court-appointed attorney referee is completed.
Plaintiff's counsel represented at oral argument that plaintiff was "under the impression that all discovery and inspection was stayed." Plaintiff's counsel represented on the record that "if that stay is lifted...[she] would certainly schedule an EBT, you know, as soon as our schedules permit thereafter."
The Court inquired of plaintiff's counsel on the record how plaintiff's position did not prejudice defendant's rights to seek discovery. Plaintiff's counsel insisted that her client believed that all discovery should be stayed, including any further discovery sought by defendant regarding any additional spyware plaintiff may have used to collect confidential and/or privileged communications and information from her iPhone without her permission, until after Judge Belen issues his report on the extent of spyware use.
Plaintiff's counsel represented on the record that plaintiff had fully complied with defendant's discovery demands and that "[i]f defendant's attorney tells me what it is they deem to be missing I will certainly look...I will get it to them."
The attorney for the children took no position other than to note on the record that she has "said to counsel many times it's in my client's best interest to get this finished."
During oral argument, defendant's counsel represented that defendant's position remains that the only Court ordered stay of discovery is the specific stay of defendant's responses to plaintiff's interrogatories as detailed in the September 18, 2015 decision and order. Defendant's counsel argues that plaintiff remains "free to serve a notice for a continued deposition" and to seek updated financial discovery as permissible under the Civil Practice Law and Rules and Domestic Relations Law.
Defendant's Application to Amend Order of Reference to Include iPhone
Defendant's counsel further argued that "[i]t would be the most inefficient exercise for Judge Belen to report on point one, whether plaintiff used spyware from these devices when at this point in time he doesn't have the log files. He doesn't have the data that was extracted from [defendant's] phone because we are here on this motion and we would, as we asked earlier, that the Court amend the reference so that, as the Court indicated, Judge Belen can efficiently and effectively report to your Honor on the issue that he has been directed to report on." Defendant's counsel argued at oral argument that defendant is "operating on the defensive" because plaintiff has continuously asserted his Fifth Amendment against self-incrimination regarding any inquiries related to his installation and/or use of spyware on defendant's iPhone.
Plaintiff's counsel further argued that the order of reference should not be amended and defendant's iPhone and the OwnSpy logs uncovered on it should not be provided to the court-appointed attorney referee to consider in preparing the report because, she argued, the phone has "been in their custody and possession for all these many months...in the hands of their expert who is privately retained...[t]heir expert has clearly done work on this phone." She argued that "[w]e don't know what that phone would have shown prior to it being tampered with by their expert." She argues that this is vastly different from the precautions put into place when the Court ordered the Sheriff of the City of New York to seize and hold plaintiff's computing devices based on defendant's emergency order to show cause in May 2015 (see 49 Misc 3d 1202(A), 26 N.Y.S.3d 724). At oral argument on August 5, 2016 defendant's counsel represented on the record that defendant and defendant's expert were prepared to file affidavits that the iPhone had not been tampered with if defendant is permitted to turn the iPhone and the approximately 7,000 pages of OwnSpy logs over to the court-appointed attorney referee for examination. Defendant's counsel noted that pursuant to the parties' April 4, 2016 stipulation the parties' computer experts are working together with the court appointed attorney referee in examining the plaintiff's computing devices and, he argues, the same process would extend to examination of defendant's iPhone.
At the conclusion of oral argument the Court, noting with concern that the parties' extensive motion practice in this litigation has repeatedly delayed the custody trial, offered to advance the custody trial to September 19, 2016; however, counsel represented on the record that they were not available for an expedited trial date of September 19, 2016. As such, the prior custody trial dates detailed in the scheduling order dated July 21, 2016, which were selected on consent of all the parties' through counsel shall remain.
Defendant's Prayer for Relief, OwnSpy Allegations and Plaintiff's Fifth Amendment
Article 1 §6 of the New York State Constitution states that, "No person...shall...be compelled in any criminal case to be a witness against himself or herself..." This language is substantially identical to that of the Fifth Amendment of the United States Constitution, "No person...shall be compelled in any criminal case to be a witness against himself" (US Const amend. V, full text). A party to a civil suit may also take advantage of the Fifth Amendment, "...since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution" (Lefkowitz v Cunningham, 431 US 801, 805 [1977]; however in the context of a civil action, a witness' Fifth Amendment privilege is more constrained:
Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff's case. (McDermott v Manhattan Eye, Ear and Throat Hosp., 15 NY2d 20, 28 [1964].)Furthermore, a party who invokes the Fifth Amendment privilege in a civil action may be subject to an adverse inference:
In New York, unlike the rule in a criminal case, a party's invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert (citation omitted) (Kuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160, 178-79 [2d Dept 1988] affd, 73 NY2d 875 [1988]).It is well-established that when a witness invokes the Fifth Amendment in a civil action the Court may draw an adverse inference against that party (see El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept.,2013] (holding that in a matrimonial action the Supreme Court was correct to draw an adverse inference against the defendant in a contempt hearing where the defendant invoked his Fifth Amendment privilege); affirmed 26 NY3d 19, 19 NYS3d 475 [2015]).
The New York Court of Appeals has held that drawing the adverse inference against a party based on invocation of the Fifth Amendment privilege is "...akin to that arising when a party fails or refuses to produce a material witness who is within his control..." (Marine Midland Bank v John E. Russo Produce Co., Inc., 50 NY2d 31, 42, 427 NYS2d 961 [1980]).
It is well-established in New York that, in equity, the prayer for relief is not controlling where there is a general prayer for relief demanding such other and further relief as the court may deem just and proper and the court may properly shape its decree in accordance with the equities of the case and the facts presented where the relief is not entirely distinct from the relief requested that would result in surprise or prejudice to the other party (see generally Thompson v. Erie R. Co., 45 NY 468, 1871 WL 9722 [1871]; Weil v. Atlantic Beach Holding Corp., 1 NY2d 20, 150 NYS2d 13 [1956]; HCE Associates v. 3000 Watermill Lane Realty Corp., 173 AD2d 774, 570 NYS2d 642 [2 Dept.,1991]; Frankel v. Stavsky, 40 AD3d 918, 836 NYS2d 90 [2 Dept.,2007]).
The prayer for relief detailed in defendant's notice of cross motion does not explicitly request amending the order of reference to the court-appointed attorney referee to include a review of defendant's iPhone and any OwnSpy log files; however, the prayer for relief item "A" requests that plaintiff disclose, inter alia, any and all spyware, including OwnSpy, that he purchased and used against defendant in connection with this matrimonial action. Additionally, defendant's counsel requested that the Court grant defendant "such other and further relief" as the Court deems just, proper and equitable. In connection therewith, both the expert affidavit and defendant's counsel's affirmation in support of the cross-motion clearly and explicitly request that the Court grant defendant's request that her iPhone and the uncovered OwnSpy records be provided to the court-appointed attorney referee. In his opposition affidavit plaintiff explicitly addressed and opposed defendant's application, albeit made in defendant's counsel's affirmation in support, to amend the order of reference to include providing defendant's iPhone and the OwnSpy logs to the court-appointed attorney referee. At oral argument plaintiff's counsel raised no procedural objection to defendant's application to amend the order of reference to include defendant's iPhone and the OwnSpy logs and no objection raised in any written submission. In fact, plaintiff's counsel engaged in extensive oral argument opposing the relief requested by defendant. It is clear that both sides had a full and fair opportunity to brief and argue the issue.
The Court inquired of plaintiff through counsel on the record whether plaintiff would provide an affirmative response to defendant's application that he "fully and completely disclose all Spyware...used and/or purchased..." by plaintiff in connection with this action. Plaintiff's counsel, with plaintiff present, represented on the record that the plaintiff would continue to invoke his Fifth Amendment right against self-incrimination to any and all questions posed related to spyware. As such, to deny defendant's application under the specific facts and circumstances presented here because the relief was not specifically delineated in the prayer for relief would be a waste of judicial resources, would result in the parties incurring additional counsel fees and would cause a further delay of these proceeding, including the previously scheduled custody trial. Based upon the foregoing and all the facts and circumstances presented here the Court deems defendant's application to compel plaintiff to disclose his spyware use in connection with this action as also an application to amend the order of reference to the court-appointed attorney referee to include defendant's iPhone and the OwnSpy logs uncovered by defendant's computer expert based upon the following: the record established by defendant including the PayPal records showing plaintiff purchased OwnSpy; the exert's affidavit and support documentation alleging that plaintiff utilized the OwnSpy spyware to listen in on defendant's appointments with her psychiatrist and counsel on the day before plaintiff commenced this divorce action; counsel's affirmation in support of defendant's cross-motion; and plaintiff's invocation of his Fifth Amendment right against self-incrimination.
Plaintiff's counsel's objections to defendant's iPhone and the OwnSpy logs being provided to the court-appointed attorney referee are, essentially, that the iPhone may have been tampered with in the months since the OwnSpy spyware was allegedly activated by plaintiff. When the Court was call upon to address the alleged spyware use by plaintiff against defendant it was also called upon to provide that plaintiff was not provided an opportunity to remove evidence of any spyware use before the computing devices could be examined. Here, the situation is vastly different: defendant certainly has no interest in removing evidence that may support her allegations against plaintiff. Certainly, the parties' respective computer experts who are, on consent of the parties pursuant to the April 4, 2016 stipulation, working together with the court-appointed attorney referee on the forensic examination of the computing devices will have a full opportunity to review the logs and the iPhone. It is clear to the Court that the parties entered into a detailed stipulation on consent regarding the mechanisms and protocols that would be used to examine plaintiff's computing devices. All parties agree that the April 4, 2016 stipulation was negotiated in detail by the parties, the parties' respective counsel and their respective computer experts before it was entered into on consent and presented to the court-appointed attorney referee and, thereafter, to this Court to be so ordered on consent. The mechanisms, protocols and safe-guards established on consent pursuant to the April 4, 2016 stipulation to control the examination of plaintiff's computing devices shall also apply to the examination of defendant's iPhone.
Plaintiff's counsel, in effect, argues that the Court should not consider the allegedly newly discovered evidence — the approximately 7,000 pages of OwnSpy logs discovered on defendant's iPhone — because the Court may ultimately not find that evidence has much/any weight if plaintiff establishes that defendant's computer expert manipulated defendant's iPhone or somehow, as plaintiff appears to argue, tampered with the OwnSpy logs in a nefarious manner. The Court does not adopt plaintiff's argument on this issue. Certainly, if the forensic assessment reveals that defendant nefariously manipulated or caused someone else to tamper with her iPhone to create "false" evidence plaintiff has not waived his right to seek the appropriate relief; however, plaintiff continues to asserted, as he has a full right to do, his Fifth Amendment right against self-incrimination on all questions related to his purchase, installation and use of any/all spyware to monitor and or intercept defendant's confidential and/or privileged communications. The Court notes that it is law of the case that a negative inference has been drawn against plaintiff as to these issues. The continuing issue, which is the basis for the court-appointed attorney referee — is to report on the extent of spyware use by plaintiff against defendant so that the Court can assess the extent of that negative inference. The Court is concerned that the plaintiff, while continuing to exercise his Fifth Amendment right against self-incrimination, is simultaneously attempting to interfere with defendant's ability to present information that may, or may not, be relevant in the task the court-appointed attorney referee was appointed on consent to complete. To permit plaintiff to do so would be to restrict defendant, who is because of plaintiff's choice, forced to take a completely defensive posture as it relates to the allegations of extensive spyware use by plaintiff against her. Plaintiff cannot refuse to answer and simultaneously deny defendant an opportunity to present relevant evidence for consideration on the underlying issue. A party's choice to assert his or her Fifth Amendment right against self-incrimination does not unilaterally terminate the other party's right to continue the inquiry by discovery and presenting his or her case especially where significant documentary proof is provided to allege that the spyware intrusion may have been significantly greater than previously alleged.
In response to defendant's request that he disclose any and all spyware he used against defendant plaintiff, through counsel, has asserted that he will not answer and will instead invoke his Fifth Amendment privilege against self-incrimination. As this Court previously detailed in great length in the September 18, 2016 decision, plaintiff's invocation of the Fifth Amendment right against self-incrimination does not simultaneously terminate defendant's right to pursue the information sought using other available methods of discovery which do not involve plaintiff's testimony. "While a party may not be compelled to answer questions that might adversely affect his criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding..." (Access Capital, Inc. v. DeCicco, 302 AD2d 48, 752 NYS2d 658 [1 Dept.,2002]). This is consistent with the Appellate Division, Second Department's decision in In re Astor, 62 AD3d 867, 869 [2d Dept 2009]. In In re Astor, the movant in a probate proceeding sought a protective order arguing that if the Court compelled production of certain documents during discovery it would violate his Fifth Amendment privilege against self-incrimination. In denying the movant's application for a protective order the Appellate Division, Second Department explained that,
Here, although some of the subject demands are for documents that could be incriminating in connection with the relevant counts in the criminal indictment against the appellant, "that the witness may invoke the privilege against self-incrimination is not [necessarily] a basis for precluding civil discovery" (State of New York v. Carey Resources, 97 AD2d at 509, 467 N.Y.S.2d 876).The Appellate Division, Second Department further held in In re Astor, 62 AD3d 867, 870 [2d Dept 2009], that
...the appellant must show that the very act of producing the documents, if compelled by the court, would have testimonial aspects and an incriminating
effect' (United States v. Doe, 465 U.S. at 612, 104 S.Ct. 1237; see Fisher v. United States, 425 U.S. at 410—411, 96 S.Ct. 1569). The act of production of documents may be testimonial in that it establishes the existence, authenticity, and custody of items that are produced' (United States v. Hubbell, 530 U.S. 27, 40—41, 120 S.Ct. 2037, 147 L.Ed.2d 24).In the case before this Court, plaintiff invoked his Fifth Amendment privilege and refuses to answer any questions posed by defendant related to his use of spyware. Now, plaintiff argues that defendant should be prohibited from providing her iPhone and OwnSpy logs discovered on her iPhone to the court-appointed attorney referee even though the logs allegedly show that plaintiff used OwnSpy to listen in on, among others, a meeting she had with her attorneys the day before plaintiff commenced this action. Plaintiff contends, in effect, that the Court should, without ever seeing the OwnSpy logs, find that they are inadmissible evidence.
The Fifth Amendment privilege cannot be used as a shield and a sword. Plaintiff cannot invoke the privilege and refuse to answer questions regarding the extent of his spyware use against defendant and then refuse to allow defendant to present information that may answer that very question.
Plaintiff offered no legal basis, and this Court is not aware of any, that would substantiate his legal theory that by invoking of his Fifth Amendment privilege plaintiff effectively bars defendant from pursuing the discovery she seeks through other discovery methods that do not involve plaintiff's testimony. To the contrary, the United States Supreme Court has ruled that the Fifth Amendment privilege only extends to "the person asserting the privilege" and, further, "only from compelled self-incrimination." (United States v Doe, 465 US 605, 610, 104 S Ct 1237, 1241, 79 L Ed 2d 552 [1984], citing 425 U.S., at 396, 96 S.Ct., at 1573.) Furthermore, in United States v Doe the United States Supreme Court detailed that there is no compulsion present where production of documents, which were voluntarily created, is sought from a person asserting the Fifth Amendment privilege in that the mere act of production does not compel the person to "restate, repeat, or affirm the truth of the contents of the documents sought" (id at 610-11). Certainly, if any log files were created on defendant's iPhone as a result of plaintiff's spyware use against her she should have the right to present those log files especially where plaintiff has invoked his Fifth Amendment right against self-incrimination. Plaintiff's argument that defendant is barred from any further discovery related to those issues on which he has invoked his Fifth Amendment privilege is unavailing. To permit plaintiff to do so would be, in effect, allowing him to interfere with defendant's ability to litigate this action and to ever learn the extent, if any, to which plaintiff violated her attorney-client privilege using spyware. Plaintiff cannot bar defendant's right to seek discovery on the extent of his alleged use of sypware against her by refusing to answer questions related to his alleged use of spyware and also objecting to defendant's right to seek discovery through other available discovery methods. To do so would allow a party to benefit by their failure to disclose and would, in effect, allow that party to unilaterally control what information was discoverable. Plaintiff's assertion of his Fifth Amendment privilege does not bar defendant from presenting the log files uncovered on her iPhone which is, under the facts and circumstances presented here, tantamount to document discovery. Plaintiff's Fifth Amendment privilege against compelled self-incrimination is not violated by defendant providing the iPhone and log files to the court-appointed attorney referee. What weight, if any, the court-appointed attorney referee assigns to defendant's iPhone and the OwnSpy log files in preparing the report on the extent of plaintiff's use of spyware, if any, against defendant is soundly within the discretion of the referee. The Court believes that the court-appointed attorney referee should have access to all relevant information and records when preparing the report as ordered by the Court so that the task that he was appointed to complete in the appointment order, on consent of the parties, can be expeditiously completed. Whether the log files are on plaintiff's computing devices or on defendant's iPhone is less significant than whether, and to what extent if any, spyware was used to intercept defendant's confidential and/or privileged communications. Additionally, the Court notes that the procedure of having the examination conducted by a court-appointed attorney referee was to ensure that the Court — the trier of fact in this case — did not see any confidential communications to or from both attorneys that may be uncovered in the examination while permitting defendant's counsel to learn the scope of any intrusion on the attorney-client relationship and on plaintiff's confidential communications by plaintiff's use of spyware. The parties stipulated to this methodology. This limited expansion of providing the newly discovered information of additional spyware to the court-appointed attorney referee is consistent with the underlying purpose of the original reference and consistent with the agreed upon methodology.
The order of reference presented the court-appointed attorney referee with the task of assessing the extent to which, if any, the plaintiff surreptitiously intercepted defendant's confidential and/or privileged communications. At the time of the original order of reference there was no information before the Court which indicated that review if defendant's iPhone and any logs stored on it may be useful to the court-appointed attorney referee in issuing a report on those issues. At this time the Court believes that in the interest of justice and judicial economy that, based upon the record presented by defendant related to motion sequence #16, the court-appointed attorney referee should have access to defendant's iPhone, including but not limited to the OwnSpy logs uncovered on defendant's iPhone in order to prepare the report as directed by the Court. This does not in any way preclude plaintiff's expert from examining defendant's iPhone and the OwnSpy logs as offered by defendant within the protocols and parameters established on consent by the court-appointed attorney referee for similar examination of plaintiff's computing devices.
Along with providing her iPhone and the OwnSpy log files uncovered by her computer expert to the court-appointed attorney referee on notice to all sides the defendant and her computer expert shall provide affidavits as to whether and to what extent, if any, they engaged in any manipulation or tampering of the defendant's iPhone that resulted in any material alteration of the OwnSpy logs on the iPhone. These affidavits shall be provided to the court-appointed attorney referee, to opposing counsel, to the attorney for the children and to the Court. The Court notes that on the record during oral argument on August 5, 2016 defendant's counsel, with defendant present, represented that defendant would provide such an affidavit.
If the Court were to adopt plaintiff's position it would, in effect, allow plaintiff to not answer any questions about any spyware he used against defendant while simultaneously barring defendant from presenting evidence that may answer the pending questions about the extent of his spyware use against her.
Depositions and Outstanding Discovery
The issues and cross-allegations raised in motion practice in this litigation have been extensive and have embroiled the parties in a time consuming and costly course of motion practice. There have been seventeen (17) motion sequences files in this action so far. The parties agree that discovery on financial issues, including depositions, are not complete. It is important that the trial on the issues of custody and parenting time are not unnecessarily delayed by the ongoing motion practice and delays in completing discovery resulting from the ongoing examination by the court-appointed attorney referee, on consent, regarding the issue of whether or not plaintiff's use of spyware on defendant's iPhone resulted in him monitoring her confidential and/or privileged communications including those protected by the attorney-client privilege and, if so, the extent of the violation.
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" (Wegman v. Wegman, 37 NY 940, 941, 380 N.Y.S.2d 649 [1975], quoting CPLR 3103; see also generally Garvin v Garvin, 162 AD2d 497, 556 NYS2d 699 [2 Dept.,1990]). As such, the fact that the parties have not completed discovery on financial issues is not a bar to the trial on custody and parenting time continuing as previously scheduled. The Court notes that there is a scheduling order dated July 21, 2016 which, on consent, set trial dates selected by the parties through counsel on the issues of custody and parenting time for a pre-trial conference on Monday October 24, 2016 at 9:30 a.m. and trial dates of Monday November 14, 2016 at 9:30 a.m.; Tuesday November 15, 2016 at 2:15 p.m.; Wednesday November 16, 2016 at 9:30 a.m.; Monday November 28, 2016 at 9:30 a.m.; and Tuesday November 29, 2016 at 2:15 p.m.. Any remaining outstanding discovery on financial issues has no impact on the ability of the parties to proceed to trial as previously scheduled on consent on the issues of custody and parenting time.
Defendant's counsel argued during oral argument on August 5, 2016 that the extent to which plaintiff used spyware against defendant may be relevant to the issues of custody; however, the court-appointed attorney referee has indicted that he anticipates completing the report on the extent of plaintiff's spyware use by the end of October 2016 which is, the court notes, several weeks before the custody trial is schedule to begin.
During the court appearance on August 5, 2016 the Court offered on the record earlier trial dates on the issues of custody and parenting time but the parties through counsel declined the expedited trial dates.
There are financial issues between the parties that are, at this point, unresolved. The Court must weight the value of the parties completing outstanding financial discovery and preparing for trial on the financial issues in a timely manner against the prejudice to defendant that would result if she were required to be deposed by plaintiff and if plaintiff was permitted to demand responses to interrogatories without defendant knowing the full extent to which plaintiff may have used spyware to intercept her confidential and/or privileged communications. The allegations, and documentation in support of those allegations presented by defendant, against plaintiff are serious and include that he "listened in" on meetings between defendant and her attorneys in this action.
Defendant's counsel previously represented that as many as two hundred e-mails were sent between his law firm and defendant before the spyware was discovered and, he argues, that plaintiff may have used the spyware he installed on defendant's iPhone to access some, or all, those communications. These allegations were fully detailed in this Court's written decision dated September 18, 2015 (Crocker C. v. Anne R., 49 Misc 3d 1202(A), 2015 NY Slip Op. 51365(U) [Sup. Ct. 2015]). As long as there was a reasonable expectation of confidentiality e-mail communications between client and attorney are, like any other communication between client and attorney, protected by the attorney-client privilege (see Willis v. Willis, 79 AD3d 1029, 914 NYS2d 243 [2 Dept.,2010]; see also Parnes v. Parnes, 80 AD3d 948, 915 NYS2d 345 [3 Dept.,2011]).
CPLR 4503 (a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment and prohibits disclosure of an attorney-client communication by any person who acquires evidence of the communication without the knowledge of the client, such as eavesdroppers or interlopers, who intercept the communication secretly. CPLR 3101 (b) vests privileged matter with absolute immunity. There is a strong public policy surrounding the privilege of attorney-client communications. The New York Court of Appeals has stated that attorney-client privilege is the oldest among common-law evidentiary privileges and is intended to foster the open dialogue between lawyer and client that is deemed essential to effective representation (see Spectrum Systems Intern. Corp. v. Chemical Bank, 78 NY2d 371, 575 NYS2d 809 [1991]).
The Supreme Court of the United States has held that the attorney-client privilege protects confidential communications whether made by client to attorney and by attorney to client (Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682 [1981]). A fundamental requirement of the attorney-client privilege is a showing that the client intended the communication with counsel to be confidential (see People v. Harris, 57 NY2d 335, 343, 456 NYS2d 694 [1982]). The privilege "depends on whether the client had a reasonable expectation of confidentiality under the circumstances" (People v. Osorio, 75 NY2d 80, 84, 550 NYS2d 612 [1989]).
To ensure that both parties' confidential and/or privileged communications are protected and to shield the Court — the trier of fact in this action — from seeing any privileged communications the parties stipulated that a court-appointed attorney referee conduct the examination and issue a report on these issues. The parties subsequently entered into a detailed stipulation related to protocols and procedure for how the examination would take place including how the parties' respective computer experts would participate and that the court-appointed attorney referee could communicate directly with the Court regarding, inter alia, logistically matters which the Court so-ordered on April 4, 2016. The parties consented in the stipulation dated April 4, 2016 that the court-appointed attorney referee can communicate directly with the Court regarding logistical matters. Pursuant to that stipulation the court-appointed attorney referee advised the Court that the examination is ongoing and that, based upon the information available at this time, he anticipates issuing the report by the end of October 2016.
The Court so-ordered the consent stipulation dated October 28, 2015. The Court subsequently issued a written order appointed the attorney-referee dated November 5, 2015.
It is well-established that the trial court is vested with "broad discretion to supervise disclosure to prevent unreasonable annoyance, expense, embarrassment, disadvantage and other prejudice[emphasis added]" (Obermueller v. Obermueller, 24 AD3d 641, 808 NYS2d 324 [2 Dept.,2005]).
Certainly, under those circumstances, it would be patently unfair to permit plaintiff to depose defendant or to demand answers to interrogatories from defendant on financial issues until defendant knows the extent, if any, that plaintiff violated her attorney-client privilege and what ill-gotten information he may have gained by that violation and to have an opportunity to make any application to the Court based upon that information as she believes is appropriate. While it is important that discovery be completed in a timely manner, based upon the facts and circumstances presented in this case, the Court must provide defendant with an opportunity to learn the extent, if any, that plaintiff's use of spyware violated her attorney-client privilege because she can be deposed or be required to answer interrogatories. Otherwise, if plaintiff did violate defendant's attorney-client privilege he may use the ill-gotten information from the violation when deposing defendant and in framing his demands for interrogatories which would prejudice defendant. Furthermore, if plaintiff gained information from violating defendant' attorney-client privilege the Court could be called upon to consider whether evidence offered by plaintiff was obtained through legitimate means or as a result of his violation of defendant's attorney-client privilege (see generally Berliner v. Berliner, 33 AD3d 745, 823 NYS2d 189 [2 Dept.,2006]).
Based upon the foregoing, plaintiff's right to depose defendant and his right to demand responses to interrogatories is stayed until fourteen (14) days from the date the court-appointed attorney referee issues the report on the extent, if any, that plaintiff used spyware to monitor defendant's confidential and/or privileged communications includes her attorney-client privilege or further order of the Court and subject to any further application. The Court notes that based on the information available at this time the report will be completed by the end of October 2016. Once the report is completed and the information is available for defendant to know the extent, if any, to which plaintiff may have violated her attorney-client privilege the issue of plaintiff' right to continue discovery can be fully assessed and then the parties may make their respective applications related thereto as they deem necessary and appropriate.
In setting this specific and limited stay the Court is ensuring that both parties have a full and fair opportunity to review the report and to make any applications regarding plaintiff's rights to continued discovery they believe are warranted based upon the extent of the violation, if any, revealed in the report while simultaneously ensuring there is no unnecessary delay in completing discovery in the event the report reveals that plaintiff's use of spyware was, in effect, ineffective and did not actually violate defendant's confidential and/or privileged communications.
The Court previously drew a negative inference against plaintiff on the question of whether he used spyware to surreptitiously monitor defendant's confidential and/or privileged communications but the extent of the negative inference remains an open question and is, in large part, the basis for the examination by the court-appointed attorney referee.
The Court does not, however, find that there is at this juncture a basis to stay plaintiff's right to seek general updated financial document discovery from defendant until the report is issued by the court-appointed attorney referee. The carve out permitting plaintiff to seek updated general financial document discovery is based on the fact that generally there should be "broad financial disclosure in matrimonial actions in which equitable distribution is sought to enable the parties to ascertain the nature and value of marital assets..." (Antreasyan v. Antreasyan, 245 AD2d 405, 666 NYS2d 672 [2 Dept.,1997]). Defendant would have been obligated to provide financial disclosure by way of document production in the general course of litigation. As such, this Court finds that plaintiff has a legitimate basis to demand updated financial document production from defendant inasmuch as it cannot be claimed that such a demand was a result of any spyware or ill-gotten information. Fundamentally, unlike specific questions that plaintiff could pose during a deposition or in a demand for interrogatories tailored based upon information gained from a violation of defendant's attorney-client privilege, there is a legitimate basis for plaintiff to seek general financial document discovery of defendant as part of an ongoing matrimonial action and, as such, plaintiff shall have the right to demand updated financial disclosure from defendant.
If plaintiff interfered with the attorney-client privileged between defendant and her counsel to the extent alleged by defendant it may be prejudicial to defendant to be deposed by plaintiff; however, that issue can only be addressed once the report is completed. Certainly, under the facts and circumstances presented here, defendant and her counsel have a right to know the extent to which plaintiff's use of spyware violated, if at all, the attorney-client privilege before plaintiff may depose defendant.
Plaintiff seeks that all discovery in this action be stayed pending the report of the court-appointed attorney referee; however, there is no allegation by plaintiff against defendant or any legal basis offered by plaintiff at this time that would make it appropriate to limit defendant's right to continue discovery of plaintiff. Plaintiff initially asserts that defendant should not be permitted to continue deposing him because, allegedly, defendant has not fully complied with his discovery demands; however, as fully detailed here, plaintiff's right to continue discovery of defendant remains an open issue that will not be determined until the report is issued by the court-appointed attorney referee on the extent to which plaintiff used spyware against defendant that may have violated her attorney-client privilege (see generally Berliner v. Berliner, 33 AD3d 745, 823 NYS2d 189 [2 Dept.,2006]).
In Berliner, Justice Robert Spolzino found that the appropriate sanction was to preclude the offending party from introducing at trial any documentary evidence for which he could not establish a legitimate source. In Berliner, a consultant for the wife discovered that a program known as "Home Key Logger", which records all keystrokes made on a computer, had been installed on the wife's computer without her knowledge and that, at approximately the same time, certain confidential files had been removed from her computer by disc or e-mail. In the case before this Court, it appears from the facts presented at this time that the alleged breach of defendant's privacy, if plaintiff in fact used the alleged spyware to intercept her privileged communications to the extent claimed by defendant, would be a far greater violation that what was alleged in Berliner. In Berliner only certain files were removed from the wife's computer on one occasion whereas in the case before this Court, if defendant's allegations are substantiated by the inventory of plaintiff's computing devices, the sophistication of the spyware allegedly used by plaintiff enabled him to monitor systematically all of defendant's online activity and to "listen in" on her conversations with others in the same room.
Plaintiff also argues that defendant should not be permitted to continue depositing him because he believes that defendant will ask him additional questions about his spyware use in connection with this case. The Court notes that a party, essentially, not wanting to answer questions under oath that may be posed during a deposition is not a basis for that party not to appear for a properly noticed continued deposition. It would fundamentally undermine the value of depositions as a discovery method if a party could avoid being deposed because they did not want to answer questions posed under oath.
Uniform Rule 221.2 addresses the limited context in which a deponent may refuse to answer a question posed at a deposition when an objection is made. 22 NYCRR 221.2 provides that "[a] deponent shall answer all questions at a deposition, except (I) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person." Attorneys may not instruct a deponent not to answer unless CPLR 3115 or 22 NYCRR 221.2 provides a basis for doing so. When a deponent refuses to answer a question, or an attorney instructs a deponent not to answer, such refusal or instruction "shall be accompanied by a succinct and clear statement of the basis therefor." 22 NYCRR 221.2. Also, where a deponent does not answer a question, the deposition proceeds, and "the examining party shall have the right to complete the remainder of the deposition." 22 NYCRR 221.2.
CPLR 3115(b), (c), and (d) provide certain limited bases for making objections during depositions including errors which might be obviated if known promptly, disqualification of the person taking the deposition, and competency of witnesses or admissibility of testimony. See CPLR 3115(b)-(d). Despite its inclusion in Uniform Rule 221.2, CPLR 3115 does not provide any separate basis for refusing to answer questions or for an attorney to direct a deponent to not answer questions. See CPLR 3115; 22 NYCRR 221.2. Furthermore, Uniform Rule 221.1(a) provides that objections made at a deposition "shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR." 22 NYCRR 221.1(a) [emphasis added]. The parties are directed to comply with the uniform rules for the conduct of depositions in 22 NYCRR 221.
Additionally, affirmative relief must be requested by the appropriate Notice of Motion, Order to Show Cause or Cross-Motion and cannot be made in opposition papers alone (CPLR 2211; see New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N.Y.S.2d 246 [2 Dept., 2007]). Here, the plaintiff seeks a stay of discovery in his affidavit in opposition, dated May 18, 2016, to defendant's cross-motion. Plaintiff's application to stay all further discovery in this action pending completion of the report by the court-appointed attorney referee is denied without prejudice.Defendant and plaintiff shall serve any demands for updated financial records within thirty (30) days of notice of entry of this decision and order. Plaintiff has offered no legal basis for his failure to comply with defendant's notice for continued deposition (see CPLR 3107; DRL 236[B]). Defendant shall renew her notice for continued deposition and plaintiff shall appear at the date and time as noticed by defendant.
Conclusion
The relief requested by defendant in motion sequence #16 is granted to the extent detailed herein.
This shall constitute the decision and order of this Court. ENTER:
JEFFREY S. SUNSHINE
J. S. C.