Jarvis v. Jarvis

• Decision Date: 22 September 1988
• Citation: 141 Misc.2d 404,533 N.Y.S.2d 207
• Parties: --Family Division, in the Matter of Peter Leslie JARVIS v. Jane Owen JARVIS. Supreme Court, New York County, IAS Part 50L
• Court: New York Supreme Court

Page 207

533 N.Y.S.2d 207

141 Misc.2d 404

In the Matter of Witnesses Examined Pursuant to Commission Issued by the Court of Common Pleas, Bucks County Pennsylvania--Family Division, in the Matter of Peter Leslie JARVIS v. Jane Owen JARVIS.

Supreme Court, New York County IAS Part 50L.

Sept. 22, 1988.

Hall, McNicol, Hamilton & Clark, New York City, for petitioner--Peter Leslie Jarvis; William G. Mulligan, Sandra W. Jacobson, Hadassah R. Shapiro, of counsel.

Liddle, O'Connor, Finkelstein & Robinson, New York City, for respondent--Jane Owen Jarvis; Jeffrey L. Liddle, Barbara R. Shweky, of counsel.

ISRAEL RUBIN, Justice.

Petitioner Peter Jarvis seeks a judgment compelling a witness in a Pennsylvania action for divorce to answer questions posed during a deposition of June 22, 1988 and to comply with a subpoena duces tecum dated July 27, 1988.

The deposition of Stanley Bryer, Esq. was conducted pursua to a commission issued out of the Court of Common Pleas, Bucks County, Pennsylvania on June 8, 1988. The witness is an attorney of this State who represented respondent Jane Owen Jarvis in the preparation of a prenuptual agreement sought to be enforced by respondent herein in the underlying Pennsylvania action.

The questions to which answers are sought were posed during cross-examination and concern the witnesses' knowledge of the then pending amendment to the Domestic Relations Law to provide for the equitable distribution of marital assets. Petitioner sought to elicit the effect of the pending bill on the advice the witness gave to Jane Jarvis and other clients. Specifically the witness was asked whether Ms. Jarvis was advised to expedite the signing of the prenuptual agreement with Peter Jarvis. To further explore the circumstances surrounding execution of the agreement, a file, described as a "skeleton file", maintained in connection with Mr. Bryer's representation of Jane Jarvis was sought by way of a subpoena duces tecum.

Objection to the disclosure of the requested information is made on the basis of attorney-client privilege, attorney's work product and material prepared for trial. Petitioner, however, argues that any objections were waived on respondent's direct examination by the posing of questions concerning Jane Jarvis's communications with the witness outside the presence of Peter Jarvis.

This matter is before this court pursuant to CPLR 3102(e). CPLR 3101 provides for "full disclosure of all evidence material and necessary in the prosecution or defense of an action ...," by which is meant any information which is "relevant" to the action (Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ). It is not subject to dispute that the answers sought to be elicited from the witness and the file sought to be obtained are relevant to the action (see Maggio v. State, 88 A.D.2d 1087, 452 N.Y.S.2d 719 [3d Dept.1982] ).

The parties disagree whether the documents sought fall within the definition of attorney's work product or material prepared in anticipation of litigation (CPLR 3101(c) and (d)). However, those rules are narrowly construed to protect only material prepared exclusively for litigation (Oppedisano v. New York Mut. Underwriters, 111 A.D.2d 452, 488 N.Y.S.2d 512 [3d Dept.1985] ) and materials produced by an attorney, qua attorney, containing his analysis of the case and trial strategy (Graf v. Aldrich, 94 A.D.2d 823, 463 N.Y.S.2d 124 [3d Dept.1983] ). The burden of demonstrating that materials sought to be disclosed are immune from discovery rests on the party asserting the immunity (Koump v. Smith, 25 N.Y.2d 287, 300, 303 N.Y.S.2d 858, 250 N.E.2d 857 [1969]; Westhampton Adult Home, Inc. v. Natl. Union Fire Ins. Co., 105 A.D.2d 627, 481 N.Y.S.2d 358 [1st Dept.1984] ). The conclusory assertions of respondent's counsel that the material sought are attorney's work product, material prepared for trial or privileged communications are insufficient to meet this burden (Koump v. Smith, supra; Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210 [2d Dept.1984]; Matos v. Akram & Jamal Meat Corp., 99 A.D.2d 527, 471 N.Y.S.2d 309 [2d Dept.1984] ). With the exception of her brief, respondent has submitted no papers in opposition to the petition.

The parties also dispute whether the questions posed to the witness fall within the protection of the attorney-client privilege and whether that privilege has been waived (CPLR 3101(b)). Material falling within the scope of the privilege is exempt from disclosure. However, the rules also provide that objections to the admissibility of testimony may be made at the trial or hearing (CPLR 3115(a)) and are not waived for failure to notice them at the deposition except where a defect in the form of a question could have been cured by timely noting it (CPLR 3115(d); Freedco Prods., Inc. v. New York Tel. Co., 47 A.D.2d 654, 366 N.Y.S.2d 401 [2d Dept.1975] ).

Recognizing the inherent tension between these two sections, the courts have taken a liberal attitude towards disclosure, ruling that its purpose of ascertaining the truth and speeding the disposition of lawsuits is best served by requiring the witness to answer questions posed, reserving any objections for trial pursuant to CPLR 3115 (Hertz Corp. v. Avis, Inc., 106 A.D.2d 246, 249, 485 N.Y.S.2d 51 [1st Dept.1985]; Byork v. Carmer, 109 A.D.2d 1087, 487 N.Y.S.2d 226 [4th Dept.1985]; McKinney v. State, 111 Misc.2d 382, 444 N.Y.S.2d 386). It is questionable whether an attorney even has the authority to direct a witness to refuse to answer a question during an examination before trial (see Spatz v. World Wide Travel Serv., Inc., 70 A.D.2d 835, 836, 418 N.Y.S.2d 19 [1st Dept.1979] ) except where the form is improper. Where a privilege might be infringed by certain responses, a protective order pursuant to CPLR 3103(a) is available to avoid abuse or prejudice (Byork v. Carmer, supra; see also Hertz Corp. v. Avis Inc., supra). In any event, rulings made on objections to questions at an examination before trial are not subject to appeal in this jurisdiction (New England Mut. Life Ins. Co. v. Kelly, 113 A.D.2d 285, 288, 496 N.Y.S.2d 8 [1st Dept.1985]; Lee v. Chemway Corp., 20 A.D.2d 266, 247 N.Y.S.2d 287 ...