Selected Cases Relating to Discovery and Trial Preparation



Privilege -- Law Guardian’s social worker.

Sensitivity of Family Court custody proceedings requires stricter limitations:


“In reviewing the voir dire testimony of this witness with respect to her prior use of the file, we find her responses far too equivocal to support the Family Court's conclusion that the law guardian should be charged with a wholesale waiver of the confidential communication privilege (CPLR 4508), as well as the immunity from disclosure of both counsel's work product (CPLR 3101 [c]) and materials "prepared in anticipation of litigation or for trial" (CPLR 3101 [d] [2]). Entirely ignored was the mandate of the last cited paragraph that, assuming the intervenor had made the threshold showing of necessity (which she clearly had not), "the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation" (emphasis added). We hold that a social worker, employed by a law guardian in a Family Court proceeding to determine custody in the best interest of an infant, is a "representative" of the infant for the purpose of this statute. And, while we recognize that a more liberal approach to discovery where a witness makes use [627/28] of material to refresh recollection has been deemed appropriate in the context of ordinary civil litigation ( Doxtator v Swarthout, 38 AD2d 782; Stern v Aetna Cas. & Sur. Co., 159 AD2d 1013), the confidentiality and sensitivity of Family Court custodial litigation clearly call for stricter limitations.”  In re Lenny McN., 183 A.D.2d 627, 627-28, 584 N.Y.S.2d 17 (1st Dep’t 1992). 



Mental health disclosure:


“It is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition (see, CPLR 4504) by actively contesting custody (see, Baecher v Baecher, 58 AD2d 821; People ex rel. Chitty v Fitzgerald, 40 Misc 2d 966). However, "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (Perry v Fiumano, 61 AD2d 512, 519).  McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (2d Dep’t 1994).



Sanction for failure to comply with discovery;  dismissal or preclusion disfavored:

”We conclude that the ultimate sanction of dismissal is an inappropriate penalty to impose upon petitioner for his counsel's delay of approximately 30 days in responding to respondent's
interrogatories and a demand to produce (see, Zletz v Wetanson, 67 NY2d 711, 713-714). "In the absence of conduct 'so blatantly contumacious as to require the ultimate penalty' ... the drastic sanction of dismissal is not warranted" [633/34] ( Farrell v New York State Elec. & Gas Corp., 120 AD2d 778, 779, quoting Spancrete Northeast v Travelers Indem. Co., 99 AD2d 623, 624).  Without a showing "of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation", the record will not support an order of dismissal ( Forman v Jamesway Corp., 175 AD2d 514, 515), particularly in a child custody matter where the child's best interest is at stake.

”It is our view that although counsel's failure to respond until after respondent had moved to dismiss is inexcusable, the delay was relatively brief and there is nothing in the record to suggest the type of evasive, misleading and uncooperative course of conduct or strategy of delay that would justify the drastic penalty of dismissal, particularly where, as here, the delay is attributable to petitioner's counsel rather than to petitioner (see, Lowitt v Korelitz, 152 AD2d 506, 507-508). We conclude that a monetary penalty in the amount of $ 500, imposed on petitioner's counsel personally, is appropriate in the circumstances (see, Wolfson v Calamel, 162 AD2d 959; see also, Farrell v New York State Elec. & Gas Corp., supra).

Beauregard v. Millwood-Beauregard, 207 A.D.2d 633, 633-34, 615 N.Y.S.2d 938 (3d
Dep’t 1994) (split decision).



See also Fox v. Fox, 9 A.D.3d 549, 550, 779 N.Y.S.2d 291 (3d Dep’t 2004):  similar ruling in a support case, which Court refers to as “a proceeding potentially implicating the best interest of a child.” 



Discovery of tapes: 


“In connection with the divorce proceeding pending between the parties, each moved for interim custody of their son and daughter, both age eleven. At issue on this appeal is whether audio and video tapes made by the defendant wife over a period of time in the home, where the parties continue to reside, and which have been submitted as exhibits to her custody motion, are admissible at trial, and whether other tapes made by her are discoverable.

”Supreme Court denied defendant's motion for a protective order as to those tapes that were not submitted to the court, and directed that defendant turn them over to plaintiff, finding that discovery of this material was appropriate in the circumstances of the custody dispute between the parties, citing Kosovsky v Zahl (165 Misc 2d 164). This was correct. However, we disagree with the court that there was any issue of eavesdropping relating to the tapes, which would warrant suppression under CPLR 4506 (3), and we reverse the court's order to the extent that suppression was granted. As Supreme Court properly observed, however, their use does have the potential to undermine the trust and confidence that should exist between parent and child. For this reason, therefore, it should be [217/18] left to the sound discretion of the Trial Judge to determine whether and how to use any of this material, if at all, keeping in mind the paramount consideration of the best interests of the two children.”  Johnson v. Johnson, 235 A.D.2d 217, 217-18, 652 N.Y.S.2d 504 (1st
Dep’t 1997).



Trial preparation  -- child in California.   Respondent’s requested relief to modify custody and place child in therapeutic school should not have been granted without appointing a Law Guardian or holding a hearing.


“A forensic evaluator should be chosen based on his or her ability to travel to California to examine the child at the CEDU program [an educational program in California]; alternatively, the court may appoint a forensic evaluator from California. A Law Guardian should be chosen who is willing to travel to interview the child at CEDU. The Supreme Court should also explore the feasibility of conducting the forensic examination and the interview of the child by teleconference. At oral argument of this appeal the wife offered to pay the cost of travel to California by the forensic evaluator and Law Guardian and the cost of returning the child to New York for the hearing. If such travel is deemed necessary by the Supreme Court, it should make an order directing the wife to pay therefor.”   Lisa X. v.  George Y., 308 A.D.2d 488, 491 (2d Dep’t 2003)



Discovery of psychiatric records, etc.  Family Court committed reversible error in terminating father’s visitation rights in his absence, without assistance of counsel and without a best interests hearing.  His failure to sign psychiatric releases did not warrant contempt finding.  “Under the particular circumstances presented here, it was error for Family Court to resort to the contempt statute when other remedies were available (see Family Ct Act § 156; Matter of Murray, 98 A.D.2d 93, 97 [1st Dep’t 1983]). Family Court could have, among other things, authorized a deposition of the psychiatrist (see CPLR art 31; Family Ct Act § 165), permitted the Law Guardian to subpoena the medical records for review and/or the psychiatrist for testimony at trial (see CPLR art 23), or ordered a full psychiatric evaluation (see Family Ct Act § 251 [a]).”  Frierson v. Goldston, 9 A.D.3d 612, 615 (3d Dep’t 2004). 



Last updated January 8, 2005

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