Litman v. Litman
| Decision Date | 08 September 1986 |
| Citation | 506 N.Y.S.2d 345,123 A.D.2d 310 |
| Parties | Eugene LITMAN, Respondent, v. Phyllis LITMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joel R. Brandes, P.C., Garden City, for appellant.
Solerwitz & Leeds, Mineola (Sari M. Friedman, of counsel), for respondent.
Before LAZER, J.P., and BRACKEN, BROWN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, the defendant wife appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Balletta, J.), dated September 12, 1984, as granted those branches of the plaintiff husband's motion for a protective order which were to prevent discovery of (1) client files opened after the date the summons in this action was served; and (2) books and ledgers of the plaintiff's law practice for the years prior to 1977.
Order modified, by deleting the provisions thereof granting that branch of the plaintiff's motion which was to prohibit discovery of client files opened after the date the summons was served and substituting therefor a provision denying that branch of the plaintiff's motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements.
When this matter was first before us on a prior appeal, we found that the plaintiff's law practice constituted marital property subject to equitable distribution and granted the defendant's application for fees to hire an expert to evaluate its value (see, Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24). The Court of Appeals affirmed (Litman v. Litman, 61 N.Y.2d 918, 474 N.Y.S.2d 718, 463 N.E.2d 34) and the matter was returned to the trial court. The current question relates to the permissible extent of discovery into the value of that practice.
The plaintiff is a specialist in personal injury cases. In order to evaluate his practice, the defendant has retained as her expert an attorney with expertise in that field and has requested that he be given access to the plaintiff's case files, among other documents. According to the expert, any evaluation of the practice must include a review of those files, since its value depends upon the nature of the actions the attorney is handling. The expert therefore proposed to have a team of law students examine the files and report the salient facts by means of written reports, with his evaluation to be based upon those reports.
Without contesting the assumption underlying the expert's proposal, the plaintiff objected to such discovery and moved for a protective order to prevent it. He argued that permitting such disclosure would result in the release of information protected by the attorney-client privilege and would inevitably lead to conflicts of interest, since the expert also maintains a negligence practice in Nassau County. The plaintiff also claimed that a review of his pending cases would lead to a speculative evaluation at best, and that review of closed files was unnecessary since their value would already be reflected in the firm's books and ledgers. He further argued that discovery should be limited to the three years prior to commencement of this action and should not extend beyond that date.
Special Term accepted the expert's assertion that examination of the case files was necessary, but agreed with the plaintiff that the scope of such discovery should be confined. The court limited the evaluation to those files which had been opened prior to commencement of this action, reasoning that the value of the practice is to be determined as of that date, and precluded disclosure of closed files completely, on the assumption that their value has already been reflected on the firm's financial books. Discovery of such books, although permitted, was limited to a period of three years prior to the commencement of the action. Special Term also refused to consent to the expert's proposal to use law...
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