Opinion
V-02035-18/18A
06-26-2019
In the Matter of an Article 6 Proceeding and an Article 8 Proceeding M.M., Petitioner, v. K.M., Respondent.
Petitioner father represented by: Lauren E. Michaeli, Esq., Farrauto Berman Slater & Michaeli, 1250 Central Park Avenue, Yonkers, New York 10704 Respondent mother represented by: Alicia Cember, Esq., 10 Esquire Road, Suite 12, New City, NY 10956
Petitioner father represented by: Lauren E. Michaeli, Esq., Farrauto Berman Slater & Michaeli, 1250 Central Park Avenue, Yonkers, New York 10704
Respondent mother represented by: Alicia Cember, Esq., 10 Esquire Road, Suite 12, New City, NY 10956
Keith J. Cornell, J.
Before the Court is the motion of Respondent K.M. (the "Mother") to quash a subpoena duces tecum that was so ordered by the Court on May 15, 2019. The return date of the motion was June 19, 2019. Petitioner M.M. (the "Father") did not file opposition to the motion. Both parties are represented by counsel, as is the child, R.M.
Background
The Father filed a petition for sole legal and physical custody of the child on July 27, 2018, alleging that the Mother was using corporal punishment, abusing alcohol and drugs, had resumed a relationship with an abusive paramour, and was suffering from mental illness that impaired her parental judgment. On the same date, the Father filed a family offense against the Mother. A CPS case was opened, but later closed as unfounded.
In January 2019, the Court ordered a forensic study. The forensic report was completed by Dr. Dominic Ferro on April 18, 2019. By letter dated April 23, 2019 and at the April 26, 2019 appearance, the Father indicated that he did not consent to the Court reviewing the report. Instead, he made an oral application for an independent review of the report and the methodology by a separate forensic evaluator. The Mother objected that an oral application for an independent review was procedurally improper. She also argued that the Father was required to show a substantial basis to justify the need for the independent review. She pointed out that Dr. Ferro is an expert who has performed a significant number of forensic evaluations for Rockland County Family Court.
The Court found that an oral application was procedurally proper. The Court also noted that when a fact finding hearing is held, if Dr. Ferro is called as a witness and the report is offered into evidence, then the Father would be allowed to call a witness to refute or challenge any conclusions in the report. The Father argued that he believed that there was "pretty egregious misconduct" in the report's methodology because "vastly" unequal amounts of time were spent with each parent, only one parent's collateral contacts were reviewed, and the report did not indicate whether any psychological testing was done. Based on these arguments, the Court granted the application for an independent review.
The Father pointed out that the Court would need to so order a subpoena for Dr. Ferro's notes and full file. The Father explained that the raw data from Dr. Ferro would be necessary for an independent review of another forensic evaluator. The Father was directed to submit a proposed subpoena on notice.
The Father filed and served a "Notice of Settlement and "Forensic Report Disclosure Order" on April 26, 2019. The Mother filed an affirmation in opposition on May 3, 2019 that raised procedural and substantive concerns. Procedurally, the Mother objected to the use of Notice of Settlement, the failure to include an affirmation of service, the failure to provide notice to Dr. Ferro's employer, the Rockland County Mental Health Department, and the failure to include a CV for Dr. Allison J. Bell, whom the Father had selected to do the review. Substantively, the Mother objected that the "Forensic Report Disclosure Order" did not identify the Father's specific concerns with the methodology of the Dr. Ferro report.
The Court acknowledged the Mother's objections in an email to the attorneys, but pointed out that the decision to allow the review had already been made at the appearance a week earlier. In response to one of the Mother's procedural concerns, the Court directed the Father to serve a copy of the proposed subpoena on the County Mental Health Department.
On May 7, 2019, the Father submitted the subpoena again with proof of service on the County Mental Health Department with a one day return notice of motion. The subpoena was so ordered on May 9, 2019.
On May 14, the Mother filed the instant motion to quash. In the motion, the Mother again argued that the subpoena was procedurally defective because it was not brought by a notice of motion. The Mother also argued that the subpoena should be quashed because the Father had not provided the necessary showing of special circumstances that would justify release of the underlying notes and data, citing Ochs v. Ochs , 193 Misc 2d 502, 510 (Sup. Ct. Westchester Co. 2002) (limiting disclosure to cases where it could be shown, "on the basis of the report itself or through extrinsic evidence, of special circumstances, such as a deficiency in the report, a potential bias or other cause."). The Father did not respond to the motion to quash.
Discussion
Upon the issuance of a subpoena, a party to the proceeding may bring a motion to quash pursuant to CPLR § 2304 in the court wherein the subpoena is made returnable. The moving party bears the burden to establish that the subpoena should be vacated based upon the underlying circumstances. See Matter of Kapon v. Koch , 23 NY3d 32 (2014). In determining a motion to quash, consideration must be given as to the necessity of the witness or documents and the grounds alleged in the motion to quash. See Matter of G.R. , 59 Misc 3d 1101 (Fam. Ct. Onondaga Co. 2018).
While procedural defects can be grounds for quashing a subpoena, cf. Jack Mailman & Leonard Flug DDS, PC v. Belvecchio , 195 Misc 2d 275 (2d Dept. 2002) (declining to hold defendant in contempt for failure to comply with a subpoena when proper service was not proven), the defects identified here are not significant enough to warrant quashing the subpoena. The affirmation of service was later provided, and the County Health Department was properly put on notice after the Mother pointed out the failure of the Father to serve the County with the proposed subpoena.
However, the substantive issue raised by the Mother in the motion is significant. The practice of appointing independent forensic experts is specifically sanctioned by the rules of the court, see , 22 NYCRR §§ 202.16(g), 202.18, and the reports may be admitted into evidence without consent of both parties, as the equivalent of the expert's direct testimony, subject only to each party's right to cross-examine. See Matter of C.S. v. A.L., 55 Misc 2d 1212(A) (Fam. Ct. Bx. Co. 2017).
In general, in the First and Second Departments, discovery on custody matters is limited. See A.L. v. C.K. , 21 Misc 3d 933 (Sup. Ct. Kings Co. 2008) (citing Ginsberg v. Ginsberg , 104 AD2d 482 (2d Dept. 1984) ). This general hesitation to allow pretrial discovery has been extended to the data underlying a forensic report. See Ochs , 193 Misc 2d at 509. In Ochs , the Court reasoned that, while the information in the expert's notes might shed some light on the psychologist's thought process, the Court found that the benefits of the additional information were outweighed by the likelihood that pretrial access to the notes would make the litigation lengthier, more expensive, and further contribute to the deterioration of the relationship between the parties. The Court also expressed concern that disclosure of the raw data and notes would undermine the effectiveness of the evaluations by creating a chilling effect on the willingness of forensic evaluators to commit their impressions to paper. In light of these potential detrimental effects of disclosure, the Court declined to order that the psychologist produce the notes without a showing of special circumstances. See id. at 510. Numerous courts have adopted the reasoning articulated in Ochs and declined to order production of psychologist notes and raw data without evidence of special circumstances. See, e.g. , C.P. v. A.P. , 32 Misc 3d 1210(A) (Sup. Ct. NY Co. 2011) ; A.L. v. C.K. , 21 Misc 3d 933 (Sup. Ct. Kings Co. 2008).
However, particularly in the last five years, courts have reconsidered the "special circumstances" limitation. See, e.g., K.C. v. J.C. , 50 Misc 3d 892 (Sup. Ct. Westchester Co. 2015) ; J.F.D. v. J.D. , 45 Misc 3d 1212(A) (Sup. Ct. Nassau Co. 2014). These decisions apply a lower standard to disclosure of the expert's underlying notes and raw data, holding that the entire file supporting the forensic analysis should be discoverable, subject to a rebuttable presumption that disclosure will not cause substantial prejudice. See K.C. , 50 Misc 3d at 900 (quoting J.F.D. , 45 Misc 3d at *5). These courts have noted that full disclosure of all relevant material is the surest method for "sharpening the issue for trial and thereby presenting the trier of fact the best information available in the most efficient manner." J.F.D. at *11.
A 2005 case from the Rockland County Family Court, S.C. v. H.B. , 9 Misc 3d 1110(A), 2005 N.Y.Misc. LEXIS 2009 (Christopher, J.), rejected the "special circumstances" standard, holding that disclosure of the full forensic file did not trigger the concerns expressed in Ochs . In that case, the Court found that substantial benefit of pre-release of the data far outweighed any detriment the disclosure might cause. See S.C. , 2005 N.Y.Misc LEXIS at *7. The Court reasoned that pretrial disclosure of certain documents to the father's expert would allow full critique of the forensic report, allow for more meaningful cross-examination, and "ultimately aid the court in evaluating the scientific validity of [the] conclusions as set forth in [the] report." Id. at *11. However, to protect against any misuse, the Court prohibited counsel for the father from giving the father access to the documents.
Here, as in S.C. v. H.B. , the Court concludes that the value of disclosure outweighs the potential detrimental effects. If Dr. Ferro was biased against the Father, as the Father alleges, it is possible that Dr. Ferro's notes or raw data would contain evidence of such bias. In addition, access to the notes and underlying data may allow the Father's attorney to inquire of the expert on cross-examination in a manner that will assist the Court in making its best interest determination. Therefore, it is
ORDERED that the motion to quash the subpoena is DENIED; and it is further
ORDERED that the subpoena is MODIFIED to prohibit disclosure of Dr. Ferro's underlying notes and/or raw data to the Father personally.