S.R.E.B. v E.K.E.B.Annotate this Case
Decided on August 6, 2015
Supreme Court, Kings County
Valerie S. Wolfman, Esq.
Attorney for Plaintiff
880 Third Avenue
New York, New York 10022
Joel Borenstein, Esq.
Attorney for the Children
26 Court Street, Suite 700
Brooklyn, New York 11242
Philip Kamaras, Esq.
Attorney for Defendant
26 Court Street, Suite 1302
Brooklyn, New York 11242
Jeffrey S. Sunshine, J.
The Court is called upon, during a bifurcated trial on the issues of custody and parenting time of the two children of the marriage, ages ten (10) and six (6), and exclusive occupancy of the marital residence, to determine whether a conditional preclusion order should be imposed against plaintiff-husband pursuant to CPLR 3126 for alleged spoliation of evidence. It is conceded that the plaintiff-husband installed both audio and video surveillance devices in the marital home and has recorded both parties and their young children in the marital home. The Court is also to determine whether awards for interim counsel fees are appropriate based upon the husband's and wife's mutual requests.
This trial is in recess due to, inter alia, the Order to Show Cause, dated April 20, 2015, which is the basis of this Decision and Order.
Facts and Procedural Background
Plaintiff-husband and defendant-wife were married on March 9, 2002. There are two children of the marriage: a son, born April 30, 2005, now age ten (10) and a son, born August 2, 2008, now age six (6). On May 7, 2014, the plaintiff-husband instituted an action against defendant-wife for full legal and physical custody of the parties' children and exclusive occupancy of the marital residence. On August 20, 2014, the husband filed an emergency Order to Show Cause for immediate full custody of the children of the marriage and for exclusive occupancy of the marital residence, claiming that defendant-wife abandoned the home because she stayed with her parents, who were visiting from Australia, for a short time in another apartment in Brooklyn, New York.[FN1]
On October 22, 2014, the wife's attorney served the husband's attorney with a Notice for Discovery and Inspection [Exhibit A, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015] via regular mail, requesting, inter alia, frequent flyer applications, copies of frequent flyer cards and statements, and other travel loyalty accounts, domestic or foreign, in which the husband participated, from January 2008 to October 2014 (Item 30), and any and all records showing flight, train, bus, car rental and accommodation bookings, including frequent flyer trips made by the husband for domestic or foreign work, or vacation travel during the six (6) years preceding the date of notice (Item 32).
The husband's Response to Defendant's Notice for Discovery and Inspection, dated December 16, 2014, responded to Item 30 with printouts of homepages to frequent flyer [*2]and travel loyalty accounts [Exhibit A, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015]. The pages reflect only introductory information without any details. The husband's response to Item 32 indicated that the documents were provided on October 15, 2014 to the extent that they were in the husband's possession or control, in compliance with the Preliminary Conference Order. The wife, through her counsel, served a second request dated January 16, 2015, returnable on February 28, 2015, for copies of the husband's current and most recently canceled Australian and Irish passports, American Airline frequent flyer records from 2003 to date, copies of all itineraries for employment and/or recreational related travel from 2003 to January 1, 2015. The wife also requested all audio and video tape recordings made by the husband in the marital residence.
The husband's attorney filed the Note of Issue on February 20, 2015. On March 12, 2015, the wife's attorney requested that the Court sign a "So Ordered" Trial Subpoena, again demanding copies of the husband's current and most recently canceled Australian and Irish passports, copies of all of the husband's travel itineraries for the period from 2003 through January 1, 2015, and all audio and video recordings made by the plaintiff in the marital residence. The Court "So Ordered" the Trial Subpoena, and required that the documents be provided by April 1, 2015. The wife's attorney served the subpoena on the husband's attorney on March 24, 2015.
The wife moved by Order to Show Cause [Motion Sequence No.4], dated April 20, 2015, for an order of this court, pursuant to CPLR 3126(1) and 3126(2):
(1) to draw a negative inference against the husband for failing to produce his personal and business travel records during the marriage, including itineraries, travel records, passport copies, including most recently canceled and current Australian and Irish passports; employer reimbursement records for travel; and audio and video records during the marriage as demanded in the Notice for Discovery and Inspection, Trial Subpoena, and "So Ordered" Trial Subpoena;
(2) and/or to accept as true all testimony given by the wife regarding the husband's travel during the marriage, based on the husband's failure to produce travel records, itineraries, frequent flyer records, and passports as demanded in the Notice for Discovery and Inspection, Trial Subpoena, and "So Ordered" Trial Subpoena; and
(3) to accept as true all the wife's testimony regarding video and audio recorded events at the marital residence during the marriage, based on the husband's failure to produce a complete catalog of audio and video tapes as demanded in the Trial Subpoena and "So Ordered" Trial Subpoena.
The husband moved by cross motion and opposition [Opposition to Motion Sequence #4 and Notice of Cross Motion, dated April 27, 2015] seeking, inter alia, dismissal of the wife's motion seeking a preclusion order pursuant to CPLR 3126 (1) and 3126 (2) and for attorney's fees payable to the wife's attorney to be offset by the attorney's fees he has incurred. The wife's counsel argued that the Cross Motion was not timely [*3]served and the husband's counsel conceded same; the cross motion was converted into an Affirmation in Opposition to Motion Sequence #4.
The husband thereafter filed a cross-motion dated April 30, 2015 [Motion Sequence #5], noticed for May 12, 2015, seeking, inter alia, dismissal of the wife's motion seeking a preclusion order pursuant to CPLR 3126 (1) and 3126 (2). The husband also requests that in the event that the wife seeks attorney's fees, the amount should be reduced by the attorney's fees incurred by the husband in the amount of $14,000.00, pursuant to the husband's attorney's affidavit indicating 20 hours spent in court and in drafting a response to Defendant's Order to Show Cause and 15 hours responding to Defendant's Order to Show Cause to preclude including letter to counsel and legal research at $400.00 per hour.
The wife filed an Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015, wherein she requested interim attorney's fees in the amount of $30,000.00. The wife requested an interim award for attorney's fees on the basis of her status as the less monied spouse.[FN2]
The wife seeks an order from the court deeming issues to which the requested information is relevant as resolved by accepting as true all testimony given by the wife, by precluding the husband from supporting or opposing designated claims or defenses regarding travel during the marriage, and from offering any testimony regarding video and audio recorded events based on his noncompliance with the wife's discovery demands and subpoenas. The wife has steadfastly maintained during the course of the litigation that the issue of the husband's travel is essential to the custody proceedings because it demonstrates the impossibility of the husband's claim that he was the primary caretaker of the children during the marriage because, she avers, he traveled an average of 8-10 days per month. The wife argues that she has always been the primary caretaker for the children. The wife states that in the second half of 2014, "his work travel has slowed as part of his plan to demonstrate to the court his availability." But that the husband "has still taken at least seven (7) business trips since September 2014, and has a pending business trip from May 17 to 28, 2015, during which he has requested" that the wife take "100% care of the children while he is gone."
Travel Records and Passports
At issue is the wife's claim that throughout the marriage the husband traveled abroad extensively and that she was and continues to be the primary caretaker of the children. The wife first requested travel documents in her Notice for Discovery dated October 22, 2014 and claims that due to lack of response to items 30 and 32, she made a second request by way of the Trial Subpoena dated January 16, 2015, in which she added [*4]a request for audio and video recordings made by plaintiff in the marital residence. The wife claims that the husband did not respond, so the wife's attorney requested that the Court sign the "So Ordered" Trial Subpoena, which the Court did on March 17, 2015.
The wife contends that the husband failed to produce frequent flyer records, itineraries, and copies of his current and most recently canceled Australian and Irish passports, which she argues would yield information to the husband's travel history. The wife annexed the frequent flyer records provided by the husband [Exhibit A, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015] and avers that the pages provided are merely "home pages," which contain only introductory information and reflects no real record or statement of travel. The wife contends that the husband is able to access or produce frequent flyer records through his personal email folders, that he has access to travel records via his work e-mail and workplace travel agency, and he could log into his American Airlines frequent flyer account to obtain past travel records but that he has purposefully refused to do so.[FN3]
The wife asserts that the husband is able to access records of all his past travel itineraries for a $75.00 fee by contacting American Airlines via telephone but that he refuses to do so.[FN4] The wife also asserts that Carlson Wagonlit Travel, the travel agency utilized by the husband's employer, is willing to provide records of past travel that include departures, destinations, flights, and hotels dating back to June 2010 for $10.13 per record and that the agency has 160 records of plaintiff's travel during this period.[FN5]
In response to the husband's assertion that "e-tickets" are only available for 60 days, the wife contends that even if "e-tickets" are only available for 60 days, the following travel occurrences were within 60 days of notice: the husband's trip to London in August 2014 within 60 days of the October 22, 2014 Notice for Discovery and Inspection; the husband's trip to London and Dallas in November 2014 within 60 days of notice of the January 16, 2015 Trial Subpoena; and husband's trip to Hong Kong in February and March 2015 within 60 days of the March 17, 2015 So Ordered Trial Subpoena, but that he did not provide these travel records either. The wife avers that during the marriage the husband was a meticulous record keeper, as he kept a detailed record of his children's travel since birth [annexed as Exhibit D, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015]. Thus, she alleges it is highly unlikely that he does not currently have his personal and business [*5]travel records.
The wife argues that it is insufficient for the husband to provide copies of his passports without accompanying travel records as demanded because, the wife claims, the husband's participation in the Global Entry Kiosk Program means that his passport does not get stamped when he enters the United States. Moreover, the husband's travel to London every five weeks, for which he uses an Irish passport does not get stamped as per European Union regulations. The wife contends that the husband uses a corporate credit card when he travels and indicates that his personal credit card records do not yield adequate information regarding his travel. The wife contends that due to the husband's failure to provide passports and complete travel records she has only been able to paint an incomplete picture of the husband's frequent travel.
Audio and Video Files
The wife contends that the husband has been video recording in the home since June 2014 (a period of 11 months at the time of the Order to Show Cause, dated April 20, 2015) and that the husband's video equipment records continuously in the home with two permanently affixed "DropCam" cameras that are equipped with motion detectors, night vision, and high audio capture ability, which transmit and store recordings on an online cloud for seven (7) to 30 days. In response to the wife's demands, the husband produced eight (8) videos. Based on those videos, the wife argues that the cameras are capable of capturing and have captured audio recordings through the common halls of the home, kitchen, dining room, and the wife's bedroom. The wife alleges that the audio and video recording continues to date, despite a consent stipulation that the husband signed, which was so ordered by the court on December 17, 2014, wherein husband consented to only record his room as a personal security measure.
The wife contends that of the eight (8) videos that the husband produced, four relate to a single day on a day in January 2015, one is of an instance on March 28, 2015, and that the three (3) remaining videos reflect some time in January 2015. The wife cites numerous dates within the notice periods from June 2014 through March 2015, for which plaintiff-husband did not produce video recordings. The wife claims even assuming, arguendo, that the husband could not maintain all the records for the period of time due to the cloud retention policy, the husband failed to provide the fourteen days of recording that would have been available at the time of the Trial Subpoena dated January 16, 2015, the fourteen days prior to the Court ordered Trial Subpoena signed March 17, 2015, and that the husband has therefore failed to provide at least 28 days worth of video recording. However, Exhibit E in the wife's Order to Show Cause dated April 20, 2015 indicates that "DropCam" cloud recording has an option for either seven (7) or 30 day recording. The webpage annexed in Exhibit E indicates that seven (7) day recording is $9.95 per month and 30 day recording is $29.95 per month. The wife also attached the husband's credit card statement for the billing period dated June 13, 2014 to July 11, 2014. The credit card statement reflects a $9.95 charge from "DROPCAM.COM," indicating that the husband [*6]maintained a seven (7) day subscription with DropCam. Thus there are two (2) seven (7) day periods for which the husband has failed to provide video recordings.
The wife contends that the husband has been audio recording in the home since June 2014 (a period of 11 months at the time of the Order to Show Cause, dated April 20, 2015) and that the husband did not produce all of the audio recordings requested in the So Ordered Trial Subpoena. The wife also indicates that in February 2015, the husband's attorney stated in court that the husband does not have any audio files, that the husband deleted the audio files when there was nothing on them, but that the husband was actually in possession of and produced 118 of the 307 files. The wife further contends that the last audio file produced was a file recorded on January 25, 2015 even though, she alleges, recording continues to the date of the Order to Show Cause, dated April 20, 2015. The wife contends that the naming protocol for the audio files evidences that the husband has failed to produce the full set of audio files.[FN6] The wife further contends that the husband has not provided audio and video files for certain days or entire periods of time and has edited the audio and video files that he has produced in order to conceal his allegedly distasteful behavior in front of the children. The wife references the list of audio files [Exhibit H, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015] for the missing files as suggested by the naming protocol.[FN7] The wife references the list of audio files [Exhibit H, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015] and contends that the husband produced 118 of the 307 audio files, leaving 189 audio files unaccounted for.
Wife's Attorney's Fees
The wife claims that she has not used any marital funds to fund this litigation, nor has she been awarded any counsel fees to date. She requests interim attorney's fees in the amount of $30,000.00.[FN8] Pursuant to the wife's retainer agreement, counsel bills at a rate of $375.00 per hour. The total amount billed for the within proceeding is $32,030.75; the amount of $3,216.25 is labeled as "previous balance." Therefore, the total amount billed to the wife is $35,247.00 ($32,030.75 + $3,216.35 = $35,247.00). As of April 1, 2015, a total of $8,216.25 of the legal fees have been paid. The balance due is $27,030.75.
The wife requests an interim award for attorney's fees on the basis of her status as [*7]the less monied spouse. She annexed her Statement of Net Worth in support of her application for interim attorney's fees. The wife indicated in her Affidavit in Opposition to Plaintiff's Cross-Motion, dated May 11, 2015, that she earned $95,000.00 in 2014 while her husband earned $380,000.00.
The husband argues that "it should be clear to the court that Defendant is seeking discovery on the eve of trial." The husband also argues that "Defendant and her attorney served a Notice for Discovery of Interrogatories, many months ago" and that "Plaintiff properly responded to it." The husband contends that the wife's trial subpoena "sought discovery rather than specific documents so as to be admissible at trial" and that he has responded to the subpoenas "in good faith." The husband also avers that "the Defendant and her attorney are improperly seeking additional discovery" after the Note of Issue was filed. The husband contends that the "facts" the wife presents "are absolutely irrelevant to her discovery related motion" because the motion "concerns Plaintiff's alleged violations of a trial subpoena, not who was the primary care giver." The husband's attorney further contends that the wife's Order to Show Cause to preclude is "nothing other than a pretext to put before this court vicious, unsubstantiated allegations' to bolster her custody application." The husband's attorney avers that the wife "should have requested this information from the Plaintiff long ago and that "it is well known by all counsel that trial subpoenas are not supposed to be ways of obtaining discovery,'" and that trial subpoenas are not the proper channel for obtaining discovery. The husband's attorney also contends that the wife " alleged' sudden need for Plaintiff's travel information on the eve of travel can only be interpreted as a discovery tactic and ploy to distract Plaintiff and his attorney from the task at hand, to wit: preparation for the custody trial" and that "this is a tactic meant to harass and is a waste of the court's time and resources."
Travel Records and Passports
The husband contends that the wife's subpoena did not request "employer reimbursements records for travel," "information pertaining to his business and non-family recreational travel," or "travel records." The husband further contends that he fully complied with the "So Ordered" trial subpoena and produced the documents that are in his "custody or power." The husband attached a notice from the corporate travel agent [annexed as Exhibit C, plaintiff-husband's Opposition to Motion Sequence #4 and Notice of Cross Motion] advising employees to keep copies of their expense reports and itineraries for taxation requirements and that neither travel services nor Carlson Wagonlit Travel (the corporate travel agent) are able to provide copies of past date receipts or historical travel data for employees. The husband further contends that he truthfully responded to the subpoena and that he has no frequent flyer records from 2003 to date. However, the husband does not address or dispute the wife's allegations that he is able obtain his travel itineraries from American Airlines for a $75 fee; neither does the husband address or [*8]dispute the wife's allegations that he is able to obtain records of past travel including departures, destinations, flights, an hotels dating back to June 2010 for $10.13 per record from Carlson Wagonlit Travel. The husband fails to address the wife's contention that the frequent flyer print outs he provided were homepages that contained only introductory information. The husband also fails to address why he did not provide the underlying records for frequent flyer accounts. The husband merely states that he has "fully complied" with the subpoena to produce documents in his "custody or power," but he does not address the available methods for him to obtain the records that are not directly within his possession.
Audio and Video Files
The husband asserts that the "video tape recordings" that the wife demanded are non-existent because tape recordings are "obsolete technology." The husband further asserts that he has produced video files stored on an internet cloud to the extent that they were under his custody and control. The husband does not address whether or not he retained the audio and video after the subpoenas were served upon him. Furthermore, the husband does not address whether or not he allowed the audio and video files to lapse and automatically delete from the cloud each period so as to purposefully relinquish control over the material.
Husband's Attorney's Fees
The husband asserts that any counsel fees demanded by the wife should be offset by the fees that he has incurred. The husband contends that the wife's behavior, such as seeking discovery on the eve of trial, has caused him to incur attorney's fees in excess of what a typical case of this nature usually demands. However, the husband did not annex his Statement of Net Worth to his application for attorney's fees and his attorney's affidavit does not include an itemized billing statement.
Pretrial Disclosure in Custody Issues
While the subject of pretrial discovery in custody matters has been the subject of recent debate, it has been the long established policy in the First and Second Judicial Department that generally, pretrial discovery is not allowed absent court permission. The rule has been predicated upon the theory that the potential for abuse of discovery is so great in matrimonial actions that the Court is given broad discretionary power to grant a protective order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (Wegman v. Wegman, 37 NY 940, 941, 380 N.Y.S.2d 649 , quoting CPLR 3103). The historical case law states, "thus in matrimonial actions experience has shown that the pretrial examination too often becomes an exacerbating circumstance'" (see Nomako v. Ashton, 20 AD2d 331, 333-334 [1 Dept., 1964]; P. v. P., 93 Misc 2d 704, 705, 403 N.Y.S.2d 680, 681 [Sup. Ct., 1978]; see Hunter v. Hunter, 10 AD2d 291 [1 Dept., 1960]).
"The initial premise for placing limitations on pretrial examinations in matrimonial [*9]proceedings was the fear that such procedures might make conciliation less possible. (P. v. P., 93 Misc 2d 704, 705, 403 N.Y.S.2d 680, 682 [Sup. Ct. 1978]). "[The] basis for a reluctance to permit a pretrial examination on the issue of custody. . .is the fact that no matter what the outcome of [the] matrimonial proceeding the parties will still be bound to each other for life as parents of their two children" (Id. at 706). "Thus, it may unduly prevent the reconciliation of the parties or, even if reconciliation is not likely, make future relationships, which must persist despite separation, unnecessarily bad" (Hunter v. Hunter, 10 AD2d 291, 294, 198 N.Y.S.2d 1008, 1012 [1 Dept., 1960]). "In such cases the possibility of abuse is so great the burden should be placed upon the party seeking the examination, and a protective order denying the examination should issue unless the burden is satisfied" (see Nomako v. Ashton, 20 AD2d 331, 333-334 [1 Dept., 1964]; P. v. P., 93 Misc 2d 704, 705, 403 N.Y.S.2d 680, 681 [Sup. Ct., 1978]).
Generally, depositions and demands for bills of particulars in relation to issues in custody trials have been denied (see Garvin v. Garvin, 162 AD.2d 497, 556 N.Y.S.2d 699 [2 Dept., 1990]; Hunter v. Hunter, 10 AD.2d 291, 198 N.Y.S.2d 1008 [1 Dept., 1960]). "The exception is partly based upon the common experience that in certain classes of actions the burden of a pretrial examination may be so costly, time-consuming, and unproductive that the examination should be withheld in the absence of a showing of substantial merit" (Hunter v. Hunter, 10 AD2d 291, 294, 198 N.Y.S.2d 1008, 1012 [1 Dept., 1960]). In Burgel v. Burgel, the Second Department permitted discovery in the form of drug testing where the mental and physical condition of the parent was at issue and where there was no increased potential of abusing the discovery process (Burgel v. Burgel, 141 AD2d 215 [2 Dept, 1988]). In Johnson v. Johnson, the First Department found that the trial court properly denied the "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" (Johnson v. Johnson, 235 AD2d 217, 652 N.Y.S.2d 504, 505 [1 Dept., 1997]) [The court found that the tapes were appropriate discovery material in the context of a custody dispute. The court also found that in maintaining the children's best interest as the dominant consideration and considering the potential of undermining the trust and confidence that should exist between parent and child, the trial court should use its discretion in determining whether and how the material should be used]. Moreover, in Kosovsky v. Zahl, the Court granted the defendant's motion for the films, videotapes, audiotapes, transcripts and memoranda to be turned over immediately and found that there was a need for the materials that were in the plaintiff's possession where the defendant could not acquire the equivalent himself (Kosovsky v. Zahl, 165 Misc 2d 164 [Sup. Ct., 1995]).
While the wife's notice for discovery is improper because she did not seek court permission for discovery requests for the purposes of a custody and visitation trial, the husband did not move for a protective order objecting to the discovery requests. In [*10]congruence with Kosovsky, the wife is unable to acquire the husband's travel documents and the audio and video files that are under his subscription with DropCam. The husband has the sole ability to acquire the travel records from his travel agency or airlines. Furthermore, the husband has access to audio and video files from his cloud subscription and/or computer files while the wife is powerless to obtain these files.
Under the limited facts and circumstances presented here, this Court finds that the discovery of travel records and audio and video files are relevant to the issue of custody and necessary to the Court's final determination on the issue of custody. The travel records are relevant as to whether the husband is able to provide quality home environment, or is able to provide for the children's emotional and intellectual functioning if he is away from the children due to frequent travel. The audio and video files are relevant as to whether or not the husband should be the primary caretaker as they speak to the type of home environment and emotional and intellectual functioning of the children when he is at home. The efficacy of the husband engaging in such activities and to install such equipment in this home are certainly issues that must be explored at trial.
The husband avers that the wife's allegations are "absolutely irrelevant" to her discovery-related motion because they speak to his parenting habits rather than his alleged violation of the trial subpoena, the logical significance of this "argument" is lacking. Through the allegations, the wife laid out a factual foundation for the materiality and relevance of the documents and files that she seeks. The wife is unable to acquire these documents on her own and her discovery request does not raise the concerns that the rule against discovery in custody trials seeks to prevent. The wife's request for discovery does not embarrass, disadvantage, prejudice, or cause unreasonable expense to the husband. In fact, the husband's failure to respond takes advantage of and subverts the rule that would prevent the wife from obtaining discovery. The husband's failure to respond to repeated requests in good faith has caused expense, annoyance, and disadvantage to the wife. Furthermore, the husband's failure to dutifully comply with discovery causes the wife substantial prejudice. The husband made these materials necessary and relevant through his allegations in regards to his ability to be the primary caretaker. The Second Department's rule against discovery in custody cases is generally conditioned upon the maintaining the integrity of the adversarial process. Here, if the husband were allowed to make allegations and insulate evidence that is relevant to the wife's defense, applying the rule would compromise the integrity of the adversarial process. In an exercise of discretion, this Court allows the discovery of travel records, audio files, and video files because: the disclosure is material to the husband's claim and wife's defense, there are reasonable grounds for the disclosure, and the disclosure is minimally intrusive (see Burgel v. Burgel, 141 AD2d 215, 219, 533 N.Y.S.2d 735 [2 Dept., 1988]).
The husband contends that trial subpoenas are not the proper methods to achieve discovery and that the wife should have requested discovery earlier in the litigation. However, the husband ignores that the wife did request disclosure of the husband's [*11]frequent flyer records, itineraries, passports, and travel records in the Notice for Discovery and Inspection, which the husband failed to respond to meaningfully or in good faith. The wife is alleging detailed facts as to what the materials could reveal. The wife's request of frequent flyer records, itineraries, travel records, audio and video files is specific, and is relevant and material to her defense on the issue of custody. Furthermore, the wife is entitled to the travel records in relation to any financial issues. The husband's contention that the wife improperly utilized a trial subpoena as means to achieve discovery is unavailing. In a matter involving custody and visitation, it is proper to request pre-trial discovery through a trial subpoena when the case is already on trial. The husband's posture places the wife in a "catch-22" position. He argues that she should have asked for the material as pre-trial discovery and thus she should be barred post Note of Issue. Yet since discovery is not generally permitted in the First and Second Department absent court permission, the wife's alternative is the trial subpoena.[FN9] If the court were to deny the utilization of the trial subpoena as a means of obtaining documents and material for trial it would open the floodgates to voluminous motions for permission to conduct pre-trial discovery in custody and visitation cases.
Failure to Comply with Discovery: Travel Records
The Supreme Court has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126 (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209, 959 N.Y.S.2d 74 [2 Dept., 2012]). "[A] remedy of preclusion may. . . be appropriate where the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious'" (Id. at 210, quoting Assael v. Metropolitan Tr. Auth., 4 AD3d 443, 443, 772 N.Y.S.2d 364 [2 Dept., 2004]). "The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse" (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210, 959 N.Y.S.2d 74 [2 Dept., 2012], quoting Commisso v. Orshan, 85 AD3d 845 [2 Dept., 2011]). Also, "compliance requires not only a timely response, but a good-faith effort to provide a meaningful response" (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207, 959 N.Y.S.2d 74 [2 Dept., 2012]; see Kihl v. Pfeffer, 94 NY2d 118 ). Where a preclusion order would allow a party to secrete the very property the other party is seeking to discover, a more appropriate sanction would be to deem true the allegations of the party seeking discovery (Miceli v. Miceli, 233 AD2d 372, 373, 650 N.Y.S.2d 241, 242 [2 Dept., 1996]).
Here, the husband was given notice to produce documents relating to his travel on three (3) separate occasions; however, the record reveals that despite those repeated discovery demands, the husband has continuously failed to give a timely response that evinced a [*12]good faith effort to address the wife's requests in a meaningful manner. The husband's claims that he is unable to obtain the requested travel records is unconvincing in a day and age where email and online account access allows for convenient and extensive access for this type of information. Even if the documents were not under the husband's custody or control, he was bound to take the steps necessary to assure their preservation once the demand was made. Furthermore, article G(1)(b) of the Preliminary Conference Order, dated September 3, 2014, demands preservation of evidence:
For the relevant periods relating to the issues in this litigation, each party shall maintain and preserve all electronic files, other date generated by and/or stored on the party's computer system(s) and storage media (i.e. hard disks, floppy disks, backup tapes), or other electronic data. Such items include, but are not limited to, e-mail and other electronic communications, word processing documents, spreadsheets, data bases, calendars, telephone logs, contact manager information, internet usage files, offline storage or information stored on removable media, information contained on laptops or other portable devices and network access information.
The husband could have taken numerous steps to evince a good faith effort in complying with the discovery demands and trial subpoenas and to obey the Preliminary Conference Order; however, the husband did not give the wife authorizations so that she could get the requisite information directly. Furthermore, the husband did not address or dispute the wife's allegations that the travel records are obtainable through past emails on his account. Neither does the husband address or dispute the wife's allegations that travel records are available for a nominal fee through American Airlines and Carlson Wagonlit Travel, the travel agency that the husband's employer utilizes. It is insufficient for the husband to state that the documents were not in his "control" when there are readily available methods for him to obtain the records.It is curious, if not highly suspect that if the husband's claim that he does not travel extensively is true, why he would not do everything in his power to obtain these travel records.Spoliation: Audio and Video Files
"The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence" (Ortiz v. Bajwa Dev. Corp., 89 AD3d 999, 933 N.Y.S.2d 366 [2 Dept., 2011]; Scarano v. Bribitzer, 56 AD3d 750, 868 N.Y.S.2d 147 [2 Dept., 2008]; De Los Santos v. Polanco, 21 AD3d 397, 799 N.Y.S.2d 776 [2 Dept., 2005]). A party is responsible for preserving evidence when they are on notice that the evidence may be needed for litigation (see Thornhill v A.B. Volvo, 304 AD2d 651, 757 N.Y.S.2d 598 [2 Dept., 2003]). "Where a noticed party discards evidence without moving for a protective order, a "negative inference" may be drawn that the destruction was deliberate [or willful]. . . and where the disobedient party is responsible for making a previously possible disclosure impossible. . .the penalties of CPLR 3126 may be applied" (DiDomenico v. C & S Aeromatik Supplies, Inc., 252 AD2d 41, 52, 682 N.Y.S.2d 452, 459 [2 Dept., 1998]). Where a preclusion order would allow a party to [*13]secrete the very property the other party is seeking to discover, a more appropriate sanction would be to deem true the allegations of the party seeking discovery (Miceli v. Miceli, 233 AD2d 372, 373, 650 N.Y.S.2d 241, 242 [2 Dept., 1996]). Further, the responsibility to preserve evidence may even extend to items that are not in the possession of party when that party negligently fails to take steps to assure its preservation (see Amaris v. Sharp Electronic Corp., 304 AD2d 457, 758 N.Y.S.2d 637 [1 Dept., 2003]).
The husband was given notice to produce audio and video recordings by means of the Preliminary Conference Order, dated September 3, 2015, and on two (2) separate occasions pursuant to the trial subpoena and the "So Ordered" trial subpoena; however, the record reveals that despite notice and those repeated discovery demands, the husband has continuously failed to give a timely response that evinced a good faith effort to comply with the Preliminary Conference Order or to address the wife's requests in a meaningful manner. The husband's claims that he is unable to obtain the requested audio and video files is also unconvincing in a day and age where cloud storage allows for convenient and extensive access. Even if the files were not under the husband's custody or control, he was bound to take the steps necessary to assure their preservation. Furthermore, the husband does not address or dispute any of the wife's contentions regarding the missing audio files or missing video files.
Even more notably, the husband emailed the wife's attorney eight (8) video files on March 31, 2015 [Exhibit E, defendant wife's Order to Show Cause, dated April 20, 2015]. Of the eight (8) videos provided, seven (7) of them were from incidences in January 2015. The email dated March 31, 2015 far exceeds the husband's seven (7) day period cloud storage subscription. This indicates that the husband is indeed able to save the video files, making them no longer dependent upon the cloud storage access period. If the husband is able to save the files, he is duty bound to do so once he was given notice pursuant to the Preliminary Conference Order, dated September 3, 2015, the Trial Subpoena, and the "So Ordered" Trial Subpoena. The husband's claim that he is unable to obtain the requested audio and video files is completely unavailing upon the fact that he is able to store files from the cloud, make the files independent from the cloud, and thereby access them after the cloud access period has lapsed. This also indicates that there were steps available to the husband to assure the preservation of the material.
This Court finds that the husband's transparent contentions and responses to the wife's allegations are merely a play on semantics. The husband's contention that the wife's request for "audio and video tape recordings" is moot because "tape recordings" are "obsolete technology" is a clear example of this. Furthermore, the husband's assertion that the wife did not request "information pertaining to his business and non-family recreational travel," or "travel records" lacks factual basis. Paragraphs three (3) and four (4) of the wife's Trial Subpoena and "So Ordered" Trial Subpoena requests "American Airline frequent flyer records from 2003 to date," and "Copies of all itineraries booked on behalf of S.R.E.B. for employment related and recreational travel since 2003 through [*14]January 2015," respectively. The husband contends that the "facts" presented by the wife regarding the husband's actions in the marital home are irrelevant to her Order to Show Cause; this contention is logically lacking. The discovery that the wife seeks, is directly related to the husband's ability to be the primary care giver. The wife would naturally cite to the relevance of the discovery she is seeking by referencing what the materials contain.
The husband was given notice on numerous occasions that the evidence would be needed for litigation and upon notice he became responsible for producing and preserving the evidence. The husband's failure to preserve the audio and video files in a timely manner made a once possible disclosure impossible by allowing the files to lapse off the cloud. The husband's destruction or failure to produce the relevant material severely limits the wife's defense. The husband's repeated failure to produce the requested documents and files is problematic. The issue of the husband's travel and the alleged substance in the recordings is relevant and material to the custody dispute between the parties. The requested travel records are capable of supporting or refuting the husband's representations regarding his travel and his ability to be the children's primary caretaker as it establishes whether or not he has a physical and/or mental presence in the home on a regular basis. Once the husband received notice that discovery of the audio and video recordings were needed for litigation, he had an obligation to preserve the materials and prevent the lapse of these files.
At the court appearance on May 12, 2015 for the Order to Show Cause that is the basis of this decision and order, the Court began the proceeding by enumerating the documents that it would consider on the oral argument. Neither the wife's attorney, the husband's attorney, nor the children's attorney raised any objection to the limitation of the oral arguments to the enumerated documents.
THE COURT:Plaintiff ready?
THE COURT:Defendant ready?
THE COURT:Attorney for the child ready?
THE COURT:Litigants may be seated. Would you kindly approach to make sure that I have the right set of paper and all of the papers are complete. Counsel, please approach.
(At this time, there was a discussion at the bench between the attorneys and the Court).
THE COURT:What is before the Court today is motion sequence number four and motion sequence [*15]number five.
At the bench, the attorney for the child indicated that he wished — that he served papers he wished to submit. Is there any objection to that?
MR. KAMARAS:No, Your Honor.
THE COURT:While I've read most of these already, let me just refresh my recollection and see if there is anything I haven't read.(Pause.)
THE COURT:Thank you.
The Court has read the papers in support, opposition, the reply, the cross-motion, reply to that, response to the affirmation of the attorney for the children.
Document number one is labeled the April 20th order to show cause and supporting documents.
Document number two is the affirmation in opposition to motion number sequence number four which crossed out the cross-motion delineation as not having been timely served.
Document number three is the opposition to motion sequence number four and a properly filed notice of cross-motion.
Document number four is the affidavit in opposition to plaintiff's cross-motion and supporting documents.
And document number five is the response affirmation of the attorney for the children.
Those are the documents the court is considering on this oral argument.
The Court is considering no other documents that are in the order to show cause, but the Court reserves the right, of course, to prune the record as maintained by the clerk for any other orders or documents issued as party of the Court's decision.
I will hear from the original movant first on all issues. I have read the papers. I do not expect the papers to be repeated in oral argument.
If there is something you wish to highlight, certainly you may do so.
After approximately 30 minute oral argument, the husband's counsel not only moved to submit a reply to the wife's opposition, but the husband's counsel also qualified her oral application on the condition that the Court did not dismiss the Order to Show Cause. In other words, husband's counsel stated that if the Court rules in favor of the husband then she does not want to submit papers, but if the court rules against the husband then she wants to respond. This was long after the husband's counsel answered ready.
MS. WOLFMAN:At 3:00 o'clock yesterday I received this. (Indicating). And I would like to — if this Court does not dismiss the order to show cause to preclude, then I would need time to respond to—
THE COURT:Counsel, I was very clear when I said the Court is going to consider these documents and nothing else a half hour ago before this oral argument had started.
(An extensive oral argument ensued thereafter.)
This Court made it very clear which documents it was relying upon prior to the oral argument, specifically asked each counsel on the record if they were ready, and they each answered in the affirmative; the time for the husband's counsel to request additional time to put in a reply to the wife's submissions was at that juncture. It is inappropriate and a waste of judicial resources to answer ready, watch the court sit and read all the papers, not object to your adversary extensive arguing, and to then request an adjournment to submit additional papers but then state that the adjournment is only requested if the Court is inclined to issue an adverse ruling. The entire integrity of the process is at stake if attorneys are permitted to engage in this manner. When counsel answers ready they are bound by that representation; if not, courts could not function efficiently and counsel and litigants could sit by and hear what opposing counsel has to say and then decide to seek more time.
During trial, on April 15, 2015, an issue arose as to the production of documents and a methodology was put forth to have the records produced. The husband testified that he did not provide his American Airline frequent flier records in response to the Trial Subpoena. The husband also testified that his response to the Trial Subpoena indicated that the frequent flier records are not in his control. The husband further testified that he did not contact his airline or credit card company for the records after he was subpoenaed in January and March. The husband also testified that he has a calendar with a record of [*16]his travel that dates back at least five (5) years.
The wife's attorney argued that the husband's calendar is relevant to the proceeding because the husband's testimony regarding his travel has been inconsistent; the husband has testified that he traveled extensively during the marriage and has also testified that he does not travel "as much." The wife's attorney asserted that the wife's position is that she has been the primary caretaker of the children because the husband is traveling for a third of the month.
Based on the cross-examination of the husband, the Court determined that records pertaining to the husband's travel are relevant and material to the issue of custody. The Court made the following rulings from the bench during trial:
(a) that the husband is to produce his work and private calendars from 2005 to present to his attorney no later than April 20, 2015 and that the husband's attorney shall transmit the calendars to the wife's attorney and attorney for the children by overnight or electronic mail by April 23, 2015, to be received by April 24, 2014;
(b) that the husband may not alter, change, prune, or redact the original calendars;
(c) that alterations, changes, or redactions should occur in copies so that the Court may review the original in camera should any issues arise as to the appropriateness of the redaction;
(d) that the alterations must be made by counsel for the husband's employer and that the only alterations allowed in the produced calendars are those that redact client and corporation names; (e) that the husband may not redact any information pertaining to travel, including but not limited to locations, airlines, hotels, and methodologies of travel and that the redactions may only be made to the business aspect of each entry and not the travel aspect;
(f) that the restrictions and exceptions to the redaction of the husband's calendars apply to both private and work calendars;
(g) that the wife is to produce her calendars, subject to the same restrictions.
As such, this Court hereby orders, pursuant to the rulings made in open court, that the plaintiff-husband take the steps necessary to produce his private and work calendars within 30 days of service of this Decision and Order with Notice of Entry, or a preclusion order, preventing the husband from offering any evidence or testimony related to his travel, will be effected. It is further ordered that the husband is to produce a complete record of travel. It is further ordered that the husband is to produce a complete record of all the relevant documents regarding frequent flyer records, copies of current and recently canceled passports, and travel itineraries. Failure to produce calendars, a complete travel record, and documents relating to frequent flyer records could result in an order of the court accepting all of the wife's testimony at trial regarding the husband's travel as true and the husband will be precluded from supporting or opposing designated claims or defenses, and from offering any testimony or evidence regarding his travel during the marriage (see Miceli v. Miceli, 233 AD2d 372, 373, 650 N.Y.S.2d 241, 242 [2 Dept., [*17]1996]; see Saleh v. Saleh, 40 AD3d 617, 618, 836 N.Y.S.2d 201, 202 [2 Dept., 2007]).
Pursuant to the notice given in the Trial Subpoena, dated January 16, 2015, the husband is also ordered to produce all audio and video files that he caused to be recorded in the marital residence from January 16, 2015 to present. The husband is further ordered to produce video and audio files that he caused to be recorded in the family home, that are stored on any device, including but not limited to hard disks, backup tapes, network access information, and files stored on a cloud.[FN10] Failure to produce a complete record of audio and video files could result in an order of the court accepting all of wife's testimony at trial regarding video and audio recordings as true and the husband will be precluded from supporting or opposing designated claims or defenses and from offering any testimony or evidence regarding video and audio recorded events in the marital residence.
Husband's Request for Attorney's Fees
Domestic Relations Law (hereinafter "DRL") § 237 [A] provides that in "any action or proceeding brought . . . for a divorce . . . the court may direct either spouse . . . to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties" (O'Shea v. O'Shea, 93 NY2d 187, 190, 689 N.Y.S.2d 8 ). Longstanding jurisprudence dictates that "[a]n award of an attorney's fee pursuant to DRL § 237 [A] is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Grant v. Grant, 71 AD3d 634, 634-635, 895 NYS2d 827 [2 Dept., 2010], quoting Gruppuso v. Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2 Dept., 2009], quoting Morrissey v. Morrissey, 259 AD2d 472, 473, 686 N.Y.S.2d 71 [2 Dept., 1999]). The Court is to consider the relative merits of each parties' positions and respective financial positions in determining whether award is appropriate (Morrissey v. Morrissey, 259 AD2d 472, 473, 686 N.Y.S.2d 71 [2 Dept., 1999]).
"An award of intern counsel fees is designed to create parity in the divorce litigation by enabling the non-monied spouse to litigate the action on equal footing with the monied spouse" (Palmeri v. Palmeri, 87 AD3d 572, 572, 929 N.Y.S.2d 153 [2 Dept., 2011]). Further, it has been held that a party is not entitled to an award of attorney's fees when he or she fails to submit adequate documentation in accordance with 22 NYCRR § 202.16 [K] (see Weinschneider v. Weinschneider, 50 AD3d 1128, 1129, 857 N.Y.S.2d 613 [2 Dept., 2008]; Bertone v. Bertone, 15 AD3d 326, 326, 790 N.Y.S.2d 35 [2 Dept., 2005]).
The husband's claims and motion for counsel fees borders on frivolous (see 22 [*18]NYCRR 130-1.1). Pursuant to 22 NYCRR 130-1.1, conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" and is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." The husband is clearly the monied spouse, earning nearly four times more than the wife, and has engaged in dilatory and recalcitrant litigation practices by failing to comply with a request for discovery, the Preliminary Conference Order, Trial subpoena, and a "So Ordered" Trial Subpoena. The husband's claim that the wife's "obstreperous" behavior caused him to incur counsel fees in excess of "what a case involving such limited issues and limited means warrant" lacks factual basis. The husband has been the one to cause delay in this proceeding by failing to cooperate with the wife's discovery requests and court orders. Furthermore, the husband failed to annex the requisite documentation, namely his Statement of Net Worth along with his attorney's detailed record of billing, in his application for attorney's fees in compliance with 22 NYCRR 202.16 [K] and as such, his application is fatally defective. The husband's request for counsel fees has no basis in law and is therefore denied. The husband is cautioned that his conduct is perilously close to meeting the threshold for sanctions.
Wife's Request for Attorney's Fees
Affirmative relief must be requested by the appropriate Notice of Motion, Order to Show Cause or Cross-Motion and cannot be made in opposition papers alone (CPLR 2211; see New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N.Y.S.2d 246 [2 Dept., 2007]). The wife's initial application for attorney's fees in her Order to Show Cause, dated February 13, 2015, was referred to the trial court on consent. The wife's attorney did not move to restore the application for attorney's fees to the calendar at any time thereafter. Furthermore, the wife sought counsel fees in her Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015, in response to the husband's Affidavit in Support of Cross Motion and In Opposition to Motion, dated April 28, 2015. Even if the Court were to grant the wife's application for counsel fees pursuant to DRL § 237 [A] on the grounds of her status as the less monied spouse, her application for counsel fees, dated May 11, 2015, was made in opposition papers alone and is defective pursuant to CPLR 2211 (Id.) The wife's application for counsel fees is therefore denied without prejudice with a right to renew upon proper filing.
The relief requested in the defendant-wife's Order to Show Cause, dated April 20, 2015, is granted to the extent indicated here.
The relief requested in the plaintiff-husband's Affirmation in Opposition to Motion Sequence 4, dated April 27, 2015, is denied to the extent indicated here.
The relief requested in the plaintiff-husband's Opposition to Motion Sequence 4 and Notice of Cross Motion, dated April 30, 2015, is denied to the extent indicated here.
The relief requested in the defendant-wife's Affidavit in Opposition to Plaintiff's Cross [*19]Motion, dated May 11, 2015, is granted to the extent indicated here.
The plaintiff-husband shall not destroy or remove any audio or video files of recordings made within the marital home from any computer, hard drive, cloud, or any other network or storage device pending further order from the Court and shall take whatever action is necessary to maintain and preserve said files.
This shall constitute the decision and order of this Court.
E N T E R:
Hon. Jeffrey S. Sunshine
Footnote 1:The order to show case was subsequently withdrawn.
Footnote 2:The parties represent that the defendant-wife earned approximately $95,000 in 2014 and that plaintiff-husband earned approximately $380,000 in 2014.
Footnote 3:The contention that the husband has access to travel records via email is based on the husband previously forwarding travel information to the wife via email.
Footnote 4:As confirmed by the wife's telephone conversations with American Airlines.
Footnote 5:As confirmed by the wife's telephone conversations with the Carlson Wagonlit Travel on May 8 and May 11.
Footnote 6:The naming protocol for the audio files are indicated by year, month, and date, followed by the file sequence.
Footnote 7:There are numerous files indicated as "MISSING FILE," followed by the number of the file sequence.
Footnote 8:The wife's attorney's bill is annexed [Exhibit H, defendant-wife's Affidavit in Opposition to Plaintiff's Cross Motion, dated May 11, 2015].
Footnote 9:At this juncture, the Court need not reach the question as to whether or not pretrial discovery on this issue would have been appropriate or not.
Footnote 10:The husband was initially directed to preserve electronic evidence on September 3, 2014, pursuant to the Preliminary Conference Order, and as such files so stored must be provided as of September 3, 2014.