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
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
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.
”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
See also Fox v. Fox, 9 A.D.3d 549, 550, 779 N.Y.S.2d 291 (3d
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
Trial preparation -- child in
“A forensic evaluator should be
chosen based on his or her ability to travel to
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;
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