Opinion
10-17-2014
J.F.D., Plaintiff, v. J.D., Defendant.
Opinion
The following papers were read on this motion:
| Order to Show Cause, Affirmation and Affidavit in Support, and Exhibits | 1 |
| Affirmation and Affidavit in Opposition | 2 |
| Reply Affirmation | 3 |
| Affirmation of Attorney for the Children | 4 |
PROCEDURAL BACKGROUND
The Plaintiff (“Husband”) brings this application seeking an order: a) directing Husband's former counsel, XX, Esq., to release the entire file maintained by his firm on Husband's behalf, as concerns the above-captioned matter, to Husband's current counsel, and b) directing the Court appointed forensic evaluator, XX, Ph.D., (the “Forensic Evaluator”) to release her entire file in connection with her forensic evaluation, and the report issued further thereto, of the parties and their children to XX, M.D., as a forensic expert retained on behalf of the Husband in connection with the above-captioned matter. The Defendant (“Wife”) takes no position as to branch “a)” but opposes Husband's request for the release of the Forensic Evaluator's entire file. The Attorney for the Children, Patricia M. Latzman, Esq., supports the Husband's request for the release of the Forensic Evaluator's entire file.
DISCUSSION
This matter is currently scheduled for trial regarding custody and finances on XXXXXX. The Husband submitted a Consent to Change Attorney form from his former counsel, XX, of XX & XX, (the “Firm”), to his present counsel, dated May 22, 2014. Since said date the Firm has refused to release the file and has a retaining lien until the outstanding balance of its fee is paid. Husband argues that the file in the Firm's possession contains numerous original records, as well as copies of all motions, correspondence, and anything that has occurred in the last year of this litigation. Husband argues that without the complete file, he will be prejudiced as his attorneys will not be able to properly prepare for, and represent him appropriately at, the upcoming trial. As is a matter of course in many matrimonial actions, Husband disputes many of the fees owed to the Firm. Husband makes various allegations against the Firm's representation of him and alleges that since it was discharged for cause, the Firm has no right to a retaining lien on Husband's file.
One of the allegations is that XX provided a copy of the Forensic Report to his client, in direct contravention of the Stipulation for Release and Use of Forensic Reports and Order signed by XX himself and So–Ordered by the undersigned, which at the execution of same, was the rule in this Part regarding the release of forensic reports.
This Court's rules regarding parties' accessibility to forensic reports will be addressed in further detail below.
Even in situations in which a retaining lien has been validly asserted, which Husband argues is not the case here, courts have still directed files to be turned over. When a litigant has shown an unrefuted or uncontroverted showing of exigent circumstances, the court will relegate the outgoing attorney to a charging lien on the proceeds of the action pursuant to Judiciary Law § 475. (see Katsaros v. Katsaros, 152 A.D.2d 539 [2d Dept 1989] ; Pileggi v. Pileggi, 512 N.Y.S.2d 142 [2d Dept 1987] ). Here, as this matter is scheduled for trial to commence in approximately 1 month, and the seriousness of the custody issues, this Court deems it appropriate that Husband be provided his entire file immediately. Accordingly, it is hereby ORDERED that the Firm turn over their entire file with regard to this matter to the Husband within 10 days of service of this Decision and Order. Failure to do so as directed herein may be considered contempt of court and may expose the Firm to the possibility of the imposition of sanctions. It is further
ORDERED, that Husband and/or his counsel shall serve his former counsel, XX & XX, by overnight mail, return receipt requested.
FORENSIC FILE
In this case, the undersigned appointed the Forensic Evaluator to conduct a forensic examination regarding the parties and their children. The report provided by the Forensic Evaluator, (the “Forensic Report”) was distributed to counsel for the parties as well as the Attorney for the Children pursuant to the Stipulation for Release and Use of Forensic Reports and Order in which this Court allowed the attorneys to receive the Forensic Report and discuss it with the parties, but not distribute the Forensic Report to the parties. Apparently, here, Husband's prior counsel provided him a copy of the report in direct violation of this Court's directives and rules. To rectify same, this Court permitted, by Order dated September 19, 2014, the Wife to review the Forensic Report in the presence of counsel, at counsel's office with an attorney present in the room with her, with the restriction that no notes or pictures be taken and no copies made. The circumstances surrounding this Forensic Report, as well as the instant motion for the release of the Forensic Evaluator's entire file has required this Court to conduct a close examination of the issue of discovery during custody litigation regarding forensic reports and the raw data, notes, and overall entire file maintained by forensic evaluators which are compiled during the course of the evaluation process.
The determination whether to direct a social or psychological evaluation in custody and visitation matters is within the sound discretion of the court. (In the Matter of Elaine Sassower–Berlin v. Stephen Berlin, 31 AD3d 771 [2d Dept 2006], citing Kesseler v.. Kesseler, 10 N.Y.2d 445 [1962] ; Matter of Farnham v. Farnham, 252 A.D.2d 848 [3d Dept 1998] ). Here, this Court made the determination that due to the custody and visitation issues, a forensic report was needed to assist the Court in its determination.
The best interest of the children is of paramount concern and consideration to the court in all custody determinations. (DRL §§ 70, 240(1) ; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982] ; Eschbach v. Eschbach, 56 N.Y.2d 167 [1982] ). Before making a custody determination, the court should exercise every means possible to ensure it has all relevant information. (see CPLR 3101 ; Burgel v. Burgel, 141 A.D.2d 215 [2d Dept 1988] ; Ochs v. Ochs, 193 Misc.2d 502 [Sup.Ct., Westchester County 2002] ; S.C. v. H.B., 9 Misc.3d 1110(A) [Fam. Ct., Rockland County 2005] ).
As this Court pointed out in J.C. v. A.C., decided on April 7, 2014 and published in the New York Law Journal on May 5, 2014, the forensic reports and the evaluation process as a whole in child custody matters are valuable tools which assist the trial courts in reaching a determination of the best interests of the children. It is well settled law that “the recommendations of court-appointed experts are but one factor to be considered and are entitled to some weight (see Baker v. Baker, 66 AD3d 722 [2d Dept 2009] ). Such opinions, however, are not determinative and must not be permitted to usurp the judgment of the trial judge.” (see Baker, supra; Matter of Nikolic v. Ingrassia, 47 AD3d 819 [2d Dept 2008] ; In the Matter of Sherry Pitt v. Scott Reid, 111 AD3d 946 [2d Dept 2013] ). In J.C. v. A.C., (supra) this Court pointed out that the New York State Matrimonial Commission's Report to the Chief Judge of the State of New York dated February 2006, recommended a number of elements which should be adhered to by forensic evaluators when conducting custody evaluations, and therein, this Court opined that those elements have become common, accepted standards expected to be performed during a forensic evaluation. Based upon the forensic report in J.C. v. A.C. and the standards not being met, this Court found that based upon the deviation from the accepted standards for forensic evaluations rendered the report and its recommendations completely invalid requiring the Court to appoint a new forensic evaluator and striking the report previously admitted into evidence during the trial.
Disclosure of the notes made and the data prepared by experts is routinely permitted in areas of the law. (see e.g. People v. Almonor, 93 N.Y.2d 571 [1999] ). Each counsel cited Ochs and argued that it supports their claim. In fact, even a recently published decision, R.L. v. L.T., decided by Justice Susan M. Capeci (Supreme Court, Westchester County), published on October 3, 2014 in the New York Law Journal provides the reader with an analysis of the Ochs case and the standard which has routinely been followed by fellow Supreme Court and Family Court judges with regard to whether or not a Court should permit disclosure of the forensic evaluator's raw data including but not limited to notes, recordings, test data and testing materials. Justice Capeci recites the following:
Discovery is typically limited in custody cases because the potential for abuse is “so great” (Garvin v. Garvin, 162 A.D.2d 497 [2d Dept 1990] ; see also Lohmiller v. Lohmiller, 118 A.D.2d 760 [2d Dept 1986] ; A.L. v. C.K., 21 Misc.3d 933 (Sup, Ct, Kings County 2008, Sunshine, J.] ). Consistent with this limitation, New York courts have generally not allowed pretrial discovery of the notes, raw data and tests results of the forensic evaluator, absent special circumstances (CP v. AP, 32 Misc.3d 1210(A) [Sup. Ct, New York County 2011] ; Ochs v. Ochs, 193 Misc.2d 502 [Sup.Ct., Westchester County 2002, Spolzino, J.] ). Such “Special circumstances” would include a showing of bias on the part of the evaluator, or a deficiency in the report (Ochs, supra ).”
In conducting its research with regard to this decision, the Court reviewed Bill A8342–2013 (“the Bill”) proposed by Helene E. Weinstein, chair of the Assembly Standing Committee on the Judiciary. The Bill purports to amend Domestic Relations Law §§ 70 and 240, as they relate to court ordered forensic evaluations and reports in child custody and visitation proceedings. The justification for the Bill is set forth, in pertinent parts, as follows:
The limitations on access to the reports raise serious due process concerns including the inability of parents to adequately and effectively challenge the quality and trustworthiness of forensic reports that play a critical and often decisive role in shaping a court's decision about parental access to their children Thorough analysis of the reports including any defects therein requires a lot of time and even expert resources Since the parents are most familiar with the facts of their lives, they are best positioned to identify factual errors in the forensic reports Without the ability to thoroughly examine the report and challenge its contents, a litigant's right to a fair trial is severely hampered. A parent's interest in the care, custody and management of his or her child/ren is one of the oldest and most fundamental liberty interests recognized by law. This right has also been recognized by the United State Supreme Court in its decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). In light of the interest at stake, it is important to afford parents and litigants in child custody and visitation cases due process protections and evidentiary safeguards However, under the proposal, at each step, the court has the ability to make a protective order limiting or conditioning access to the forensic report or the evaluator's file This proposal balances important due process rights against any countervailing concerns relating to a harmful impact on the child/ren subject to the litigation that may result from unfettered access to forensic reports and underlying data in child custody and visitation cases.
The Bill itself, proposes to make the following specific modifications, in pertinent parts:
Any report or evaluation prepared by the court ordered evaluator, to be known as a forensic report' for the purposes of this subdivision, shall be confidential and kept under seal except that, all parties, their attorneys and the attorney for the child shall have a right to receive a copy of any such forensic report upon receipt of such a report by the court, subject to the provisions of section three thousand one hundred three of the civil practice law and rules. Provided, however, in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial to enable competent representation and trial preparation upon application by counsel or a party the court shall permit a copy of the forensic report and a copy of the court ordered evaluator's files as provided for under paragraph two of this subdivision to be provided to any person retained to assist counsel or any party,
Pursuant to a demand made under rule three thousand one hundred twenty of the civil practice law and rules, the court ordered evaluator shall provide to a party, his or her attorney or the attorney for the child the entire file related to the proceeding including but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court ordered evaluator and any records, photographs or other evidence for inspection and photocopying. There shall be a rebuttable presumption that the court ordered evaluator's file related to his or her appointment, including all the aforementioned materials, is discoverable subject to the provisions of section three thousand one hundred three of the civil practice law and rules
A failure to comply with a court order conditioning a limiting access to a forensic report shall be contempt of court and may be punishable as such. The court shall notify the parties and counsel on the record that a failure to comply with the court order shall be contempt of court which may include punishment of a fine or imprisonment or both
It is beyond dispute that full disclosure of all relevant and material information has proven to be the surest method of sharpening the issue for trial and thereby presenting the trier of fact the best information available in the most efficient manner. The notes and raw data of a court appointed neutral forensic psychologist are certainly relevant and material to the issue of custody. It cannot be denied that providing such disclosure will be of assistance in preparing for trial, particularly to the party seeking to challenge the psychologist's conclusions. (Ochs, supra ).
Ms. Latzman, the Attorney for the Children, argues that in order for the Court to be certain that the forensic report is unbiased and based upon good science rather than the prejudice of the evaluator, it is necessary to be provided with all supporting documents. She further argues that for the Court to properly consider the evaluation, it must determine whether tests were administered and whether those tests are adequate on scientific grounds, whether claims made by the evaluator have any basis in science, the empirical data relied on by the forensic in making her recommendations, and whether the interviews support her conclusions. “Without reviewing the raw data, it is impossible for the Court to make determinations regarding the appropriateness of the recommendations and without cross examination based upon this information, the Court will never have all the necessary information to make a proper determination.”
Affirmation of Attorney for the Children.
The Husband points out that he is simply seeking to have the raw data and notes released for his personal expert to review same to be able to prepare for cross examination. Husband is not requesting that the information be released to either party.
Wife argues that since the “potential for abuse in matrimonial and custody cases is great, the court has broad discretionary power to limit disclosure” (Worysz v. Ratel III, 101 AD3d 893 [2d Dept 2012] ). In Worysz, the husband sought to compel disclosure of the mother's personal psychiatric records for the five (5) years leading up to the custody litigation. The Wife also cites to the case of McDonald v. McDonald, 196 A.D.2d 7 (2d Dept.1994) where the husband sought disclosure of the wife's in vitro fertilization records in the context of a custody litigation. Neither of the appellate division cases relied upon by the Wife are analogous to the instant matter.
This Court disagrees with the standard established in Ochs which has, for the most part, been followed by the subsequent cases as set forth above. As times continue to change, so too must certain standards in the law. Specifically, this Court does not believe that “special circumstances” need to be present to direct the release of the raw data, notes and test results, or any other material which creates the forensic evaluator's entire file. This Court fails to understand how a party can show bias on the part of the evaluator or a deficiency in the report without the careful review of the raw data and notes of the forensic evaluator. Otherwise, the litigator is limited to cross examination of the forensic evaluator and a forensic report without knowing which questions to ask and without being able to properly establish to the Court, the trier of fact in matrimonial cases, any deficiencies in the report or bias on the part of the evaluator. The Court is tasked with applying a certain amount of weight to the conclusions in a forensic report, and it is the parties' job to bring any deficiencies in the report to the Court's attention and same cannot be properly completed, or attempted, without the raw data and notes available during trial preparation.
This Court fully agrees with the explanation of the summary of the Weinstein Bill. Specifically, this Court believes that there should be a rebuttable presumption of pre-trial discovery of the forensic report and the evaluator's entire file, including raw data, notes, tests, test results and any other materials utilized and same should be provided in every case, unless a specific motion is made to restrain the release of those materials based upon a showing of substantial prejudice. This Court believes that the weight to be given to a forensic report must be measured, not only by the conclusions rendered, but by the process taken to reach those conclusions. Custody determinations are the most important and most difficult determinations which the Court is required to make, and restricting a proper cross examination by not allowing the raw data to be distributed could be detrimental to the best interests of the child and this Court's ultimate decision.
A party must be provided the opportunity to bring to the Court's attention, through extensive and proper cross examination, any issues with regard to the forensic report so the Court's determination is not only based on an edited version of the forensic evaluator's conclusions. This Court is keenly aware of the alleged effect this may have on forensic evaluators' concerns about lengthy cross examination into their thought process and how they reached their conclusion, but the utmost important task is for the Court to be provided with the most reliable data to make such decisions when it comes to custody. The same discovery issues and cross examinations occur for a forensic accountant, and the value of a business, or a party's enhanced earning capacity, means little when compared to a judge having to decide what he/she believes is in the best interests of a child, when that child's parents cannot come to that determination amongst themselves.
In addition, this Court likens the discovery of the raw data to the “Rosario” rule regarding pre-trial statements of witnesses in criminal cases. Prince–Richardson on Evidence, as edited by Professor Richard Farrell, Eleventh Edition, 1995, § 6–413 states, in pertinent part, as follows:
Rosario imposes a clear obligation that “if the prosecution possesses or has the power to produce a statement of its prospective witness which relates to the substance of that witness' testimony, defense counsel must, in fairness, be given a copy because ordinarily counsel would have no knowledge of it and no other means of obtaining it.' People v. Jones, 70 N.Y.2d 547. See also People v. Haupt, 71 N.Y.2d 929. Incident to this obligation is the requirement of preserving statements in the possession or control of the prosecution, including any preliminary notes made by police officers who later file formal reports based on those notes.
It is this Court's view that a forensic evaluator's raw data material clearly relates to the substance of that witness' testimony, which both counsel would be unaware of unless the raw data material is provided in advance of trial. Likewise, a police officer's preliminary notes, i.e., memo book entries, are discoverable in criminal cases and official, more formal, police reports are based upon those entries. The same is true for the raw data material gathered and utilized by a forensic evaluator, as their preliminary notes and test data are transformed into their forensic report. Further, as a litigant standing trial facing criminal charges is entitled to due process to protect his/her liberty interests, so too is a parent, as expressed in the Weinstein Bill, whose interest in the custody of his or her children is “one of the oldest and most fundamental liberty interests recognized by law” which is entitled to “appropriate due process protections and evidentiary safeguards.”
Accordingly, it is this Court's belief that the forensic evaluator's raw data, recordings, notes, tests, test results, and all material relied upon and created during the evaluation process are discoverable by both parties and by the Attorney for the Children. Likewise, this Court, while coming to this decision, shall, from this day forward, allow the parties themselves to read the report, as well as the raw material. However, the parties shall not be provided a copy of the report or the raw materials, but will be allowed to review the report and raw materials in their attorney's office with an attorney present. They will be permitted to take notes, but will be precluded from taking photos and/or copies of the report and/or the raw data. This Court's orders appointing forensic evaluators for custody purposes will address the evaluator's responsibility to maintain and provide copies of all the raw data materials to the Court, which in turn, will provide same to counsel as set forth above with the signing of a Stipulation for Release and Use of Forensic Reports and Order as outlined above. Only in doing this can a party truly assist their counsel in preparing for an effective cross-examination.
Specifically for this case, the Husband's request for the raw material prepared and utilized by the Forensic Evaluator to be provided is GRANTED in that the Forensic Evaluator shall, within 10 days of the date of this Decision and Order provide this Court with 4 copies of her raw data and material. Once received by the Court, the Court shall notify counsel, who shall execute a confidentiality agreement, to be So–Ordered by the Court, allowing them to take a copy of the material, show it to the litigants, (only in counsel's office), allow the litigant to take notes, but not take any pictures or copies of any kind of the material, so they can assist with trial preparation.
Likewise, it is hereby ORDERED that Husband may provide a copy of the Forensic Evaluator's notes and raw material to his privately retained expert. However, said expert must execute a confidentiality agreement likened to the one executed by counsel for the parties, which must be filed with the Court prior to the release of the report and/or the Forensic Evaluator's raw data.
Any other requested relief not specifically addressed herein is DENIED.
This is the Decision and Order of this Court.