Parnes v. ParnesParnes v. Parnes
When the parties began experiencing marital difficulties, defendant contacted Paul Van Ryn, an attorney who had represented him in a prior divorce and related proceedings (see Parnes v Parnes, 41 AD3d 934 [2007]). Van Ryn had also represented and dealt with both parties in their capacities as principals in a limited liability company. Defendant and Van Ryn exchanged e-mails discussing a strategy for defendant to gain advantage in future matrimonial and custody litigation. Defendant acted in response to some of these e-mails, including sending a letter to plaintiff‘s physician stating that defendant—also a physician—disagreed with certain medication being prescribed and would no longer pay for this treatment, which was considered medically unnecessary as evidenced by an insurance company‘s refusal to cover the medication.
Plaintiff commenced this divorce action. At defendant‘s deposition, plaintiff‘s trial counsel questioned defendant about his e-mails with Van Ryn. Plaintiff apparently discovered a page of one of the e-mails on defendant‘s desk and, while searching for the remainder of the letter, discovered the user name and password for defendant‘s e-mail account. She used the password to gain access to defendant‘s account, printed the e-mails between him and Van Ryn, and turned them over to her counsel. Plaintiff then amended the complaint to reflect that defendant conspired with Van Ryn to cause plaintiff anguish. Counsel subpoenaed Van Ryn for a deposition and to produce documents.
Van Ryn moved to quash the subpoena. Defendant cross-moved to, among other things, quash the subpoena of Van Ryn, preclude plaintiff from using any privileged communications between defendant and Van Ryn, strike the portions of the amended complaint based on privileged information and disqualify plaintiff‘s counsel. Supreme Court found that the
Supreme Court correctly determined that the e-mails were privileged. Initially, a trial court has considerable discretion to supervise the discovery process, and we will not disturb its determinations absent an abuse of that discretion (see Superintendent of Ins. of State of N.Y. v Chase Manhattan Bank, 43 AD3d 514, 516 [2007]). Defendant met his burden of demonstrating that he and Van Ryn communicated as an attorney and client and “that the information sought to be protected from disclosure was a ‘confidential communication’ made to the attorney for the purpose of obtaining legal advice or services” (Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]; see
Despite the e-mails being privileged, defendant waived the privilege with respect to one page of one e-mail. As the proponent of the privilege, defendant bore the burden of proving that he did not waive it (see Oakwood Realty Corp. v HRH Constr. Corp., 51 AD3d 747, 749 [2008]). Plaintiff averred that she discovered a single printed page of a five-page e-mail on a desk in the marital residence. The parties acknowledge that this desk was located in a room used as an office and the parties, their nanny and babysitters all used that room. Defendant contends that the desk contained only his papers and plaintiff had her own desk in the same room, but plaintiff appears to disagree. Regardless of whether the parties had separate desks, by leaving a hard copy of part of a document on the desk in a room used by multiple people, defendant failed to prove that he took
On the other hand, defendant took reasonable steps to keep the e-mails on his computer confidential. Defendant set up a new e-mail account and only checked it from his workplace computer. Leaving a note containing his user name and password on the desk in the parties’ common office in the shared home was careless, but it did not constitute a waiver of the privilege. Defendant still maintained a reasonable expectation that no one would find the note and enter that information into the computer in a deliberate attempt to open, read and print his password-protected documents (see Pure Power Boot Camp v Warrior Fitness Boot Camp, 587 F Supp 2d 548, 560-562 [SD NY 2008]). Plaintiff admits that after she found the one page, she searched through defendant‘s papers in an effort to find the rest of the document, instead found the note, then purposely used the password to gain access to defendant‘s private e-mail account, without his permission, to uncover the remainder of the e-mail. Under the circumstances, defendant did not waive the privilege as to the e-mails in his private e-mail account (see Leor Exploration & Prod., LLC v Aguiar, 2010 WL 2605087, *18, 2010 US Dist LEXIS 76036, *63-65 [SD Fla 2010]; cf. Stengart v Loving Care Agency, Inc., 201 NJ 300, 321-324, 990 A2d 650, 663-665 [2010]).
We reject plaintiff‘s argument that the crime-fraud exception precludes confidentiality. The attorney-client privilege will not prevent disclosure or use of any communications made “in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct” (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]; see Superintendent of Ins. of State of N.Y. v Chase Manhattan Bank, 43 AD3d at 516). Defendant‘s letter to plaintiff‘s physician did not constitute a fraud upon plaintiff or the physician. Defendant expressed his personal opinion that plaintiff should not be taking human growth hormones, an opinion supported by the insurance company‘s refusal to cover that treatment. Defendant also informed the physician that defendant would no longer pay for this treatment. While plaintiff contends that defendant had evil motives for sending this letter and providing her a copy—namely to deprive her of necessary medicine and cause her mental anguish—defendant‘s actions
Supreme Court should not have disqualified plaintiff‘s counsel. When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party‘s right to be free from possible prejudice due to the questioned representation (see Matter of Schachenmayr v Town of N. Elba Bd. of Assessors, 221 AD2d 884, 885-886 [1995]; Demis v Demis, 168 AD2d 840, 841 [1990], lv dismissed 78 NY2d 1007 [1991]). The right to representation by counsel of one‘s own choosing is not absolute and may be overridden, but courts must “carefully scrutinize[ ]” any restriction of that valuable right (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; see Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023, 1024 [2008]). We have already determined that the e-mails between defendant and Van Ryn were privileged communications, and we certainly do not condone the failure of plaintiff‘s counsel to promptly notify defendant‘s counsel that she had obtained the e-mails or her tactic of surprising defendant at his deposition by questioning him regarding those privileged documents. On the other hand, contrary to Supreme
Supreme Court properly quashed the subpoena of Van Ryn. The privileged documents and testimony about attorney-client conversations were clearly not discoverable through a subpoena. To obtain disclosure from a nonparty, plaintiff was required to demonstrate a showing of special circumstances, namely that the information sought “is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial” (King v State Farm Mut. Auto. Ins. Co., 198 AD2d 748, 748 [1993]; see Cerasaro v Cerasaro, 9 AD3d 663, 665 [2004]). Van Ryn averred that certain demanded documents, such as executed retainer agreements, do not exist. Some of the demanded documents have already been provided. Most of the documents sought were presumably available from defendant, defeating plaintiff‘s need for disclosure from a nonparty. Although plaintiff made broad claims that this subpoena was required because disclosure from defendant has not been forthcoming, the record does not indicate that she has made any motions to compel his compliance with demands (see
Plaintiff‘s remaining contentions have been reviewed and are unpersuasive.
Mercure, J.P., Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as disqualified plaintiff‘s counsel and found that the third page of a five-page e-mail from Paul Van Ryn to defendant is privileged, and, as so modified, affirmed.