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FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021
Hon. Deborah H. Karalunas, J.S.C.
Plaintiff,
REPLY AFFIDAVIT IN FURTHER
-vs- SUPPORT OF PLAINTIFF'S
MOTION TO COMPEL AND IN
MELINDA BURDICK OPPOSITION TO DEFENDANT'S
BOWE,
CROSS-MOTION TO COMPEL
Defendant.
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
DANIEL R. ROSE, being duly sworn, deposes and says:
1. Your deponent is an attorney duly licensed and admitted to practice law in the State
of New York and a member of the law firm of Costello, Cooney & Fearon, PLLC (hereinafter
"CC&F"). As such, I am fully familiar with the facts and proceedings heretofore had in this
action.
2. I submit this Reply Affidavit in further support of CC&F's motion to compel
disclosure of Defendant's tax returns, as her treatment of her 2020 and 2021 income is
indispensable to the resolution of this matter, and her own admissions regarding her income within
those years are likely admissible evidence in this matter.
3. I also submit this Affidavit in opposition to Defendant's cross-motion to compel
further responses to her Interrogatories and to produce privilege and non-responsive documents
and communications. CC&F has previously provided Defendant with reports and information
responsive to the Interrogatories, and has incorporated those documents by reference into its
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Interrogatory responses. Her objections to those references have not been the subject of any
good-faith efforts to resolve the discovery dispute, are misleading to this Court and are without
merit.
4. Moreover, Defendant's contentions regarding the production of privileged
communications with CC&F's clients lack basis in New York law. There is also no reason why
Defendant should be entitled to any communications which are not responsive to her discovery
demands or requests for production. Defendant's cross-motion should be denied in full, with
costs to CC&F.
5. Prior to addressing the issues raised in the preceding paragraphs, itis necessary to
address certain additional facts and procedural history notably omitted from Defendant's
cross-motion.
I. FURTHER PROCEDURAL HISTORY
6. Following CC&F's instant motion to compel filed February 24, 2022, Defendant
finally served certain responses to Interrogatories and the First Notice to Produce over a month
later, on March 31, 2022. Notably absent from Defendant's production were her State and
Federal tax returns, although she had waived any objection to their production by to timely
failing
respond.
7. Six (6) months after CC&F served Defendant with its First Notice to Produce, she
produced just 183 pages of documents related to the subject of this litigation. By contrast, CC&F
has now produced over 9,100 pages in response to Defendant's overly broad demands.
8. In the interim, Defendant has also subpoenaed additional documents from CC&F's
accountants. Upon information and belief, Defendant has failed or refused to provide CC&F with
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a copy of any documents received in response to that subpoena, in contravention of her disclosure
obligations under the CPLR.
9. Following a conference with the Court the day after Defendant finally served
certain Interrogatory responses and her limited document production, your deponent spoke with
Defendant's counsel on April 6, 2022.
10. During the aforementioned discussion, having finally received some actual
responses to its previously-served discovery requests, your deponent committed to providing
further responses to Defendant's Interrogatories and Second Notice to Produce, and agreed to
adjourn the pending motion.
11. Upon review of Defendant's Interrogatories and Notice to Produce, itbecame clear
that all information requested had also previously been the subject of a demand, and accordingly,
all responsive information had already been provided. Accordingly, CC&F advised Defendant it
had already provided all responsive information in conjunction with its previous document
productions of over 9,000 pages. (Def. Ex. C).
12. By e-mail dated May 3, 2022, Mr. Ryan wrote:
I received your amended Interrogatory responses. In your original
responses to numbers 5, 6, 7, 8 and 9, you stated that additional responses
would be provided under separate cover. In your amended responses, you
state that the requested information has been previously produced in
CCF's document production. Please provide me with the bates [sic]
numbers of the documents that you believe are responsive to those
interrogatories.
(Def. Ex. D at 3).
13. Those interrogatories sought identification of Defendant's own originated clients,
and the work she and other timekeepers at CC&F had performed for those clients, and payments
from those clients during the term of the Of Counsel Agreement. (Def. Ex. C at 6-9).
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14. Plainly, Defendant had not even reviewed CC&F's previous document production,
because itcontained concise reports and spreadsheets reflecting this information.
15. As a courtesy to Mr. Ryan and as requested, your deponent provided him with the
Bates ranges of those reports, and the supporting detail within CC&F's production.
16. By way of example, attached hereto as Exhibit S is a report detailing the time billed
clients"
by associate Sebastian S. Piedmont for all of Defendant's "originated during the term of
the Of Counsel Agreement.
17. Such similar reports were provided for all timekeepers billing on Defendant's
originated clients. These reports were specifically identified for Mr. Ryan in your deponent's
e-mail. (Def. Ex. C at 1).
18. Similarly, where Defendant requested CC&F identify payments by its clients for
work performed by Defendant or other timekeepers during the term of the Of Counsel Agreement,
CC&F traced the payments received and the work for which each payment corresponded, and
provided Defendant with daily e-mail reports indicating those payments. Payments by other
clients that were non-responsive and irrelevant were removed, so only those reports and clients
responsive to the demand were provided. One such report is attached hereto as Exhibit T.
19. A summary report of fees received during the term of the Of Counsel Agreement
from Defendant's originated clients were also provided. A copy of that report is attached as
Exhibit U.
20. At no time prior to her cross-motion did Defendant object that these reports were in
any way insufficient or assert that CC&F was required to repeat the contents of these reports in its
Interrogatory responses.
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21. Moreover, during the same April 6, 2022 telephone call, your deponent explained
to Mr. Ryan that CC&F could not disclose its privileged communications and work-product to a
third party such as Defendant. While she may have been previously Of Counsel to CC&F, she no
longer is,and itwould violate privilege to disclose these materials.
22. Mr. Ryan did not object or provide any reasoning why Defendant would be entitled
to this privileged information. Rather, he accepted CC&F's explanation why itcould not disclose
privileged information.
23. I also explained to Mr. Ryan that CC&F had redacted non-responsive e-mail
communications, where only a portion of an exchange was responsive to Defendant's demands.
He also did not object or provide any explanation why Defendant needed non-responsive e-mail
communications.
24. Following April 6, 2022, CC&F did not receive any further communications from
Defendant regarding these alleged discovery deficiencies.
II. DEFENDANT'S AFFIRMATION IS INADMISSIBLE AND
SHOULD BE DISREGARDED
25. Within Defendant's Affirmation, dated May 11, 2022, and purportedly submitted
in opposition to CC&F's motion to compel her to provide her tax returns, she recognizes that she is
herein."
the "named Defendant (Bowe Aff. ¶ 1).
26. Itis black-letter law in New York that only the statement of an attorney admitted to
practice in New York and who is not a party to the action may submit an affirmation in lieu of an
affidavit. Moreover, any person outside the bounds of the territory of the United States is
permitted to submit an affirmation with similar effect. (See Plaintiff's Reply Memorandum of
Law, pp. 1-2).
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27. Inasmuch as Defendant is concededly a party to this action, her affirmation is
therefore inadmissible. (See Plaintiff's Reply Memorandum of Law, p. 2).
28. Moreover, although Defendant prefers to keep her location secretl, she also does
not set forth that she is located outside the territories of the United States, such that she might
benefit from subsection (b).
29. As a result, this Court should disregard Defendant's inadmissible affirmation. In
any event, any complaint Defendant may have about the discovery with which CC&F served her
nine (9) months ago, and to which she just responded following CC&F's motion are irrelevant, as
she both waived any such objection, responded to the vast majority of CC&F's requests and failed
to seek a protective order.
III. DEFENDANT'S TAX RETURNS ARE INDISPENSABLE PARTY ADMISSIONS
30. Within her opposition to CC&F's application, Defendant naively or incorrectly
claims that itwas CC&F who determined her treatment and reporting of her taxable income. (See
Affidavit of Andrew J. Ryan, sworn to the 11th day of May, 2022, ¶ 8).
31. However, notwithstanding Defendant's acquiescence in how CC&F treated the
income, a party may either claim additional undocumented income, or dispute amounts shown in a
1099 or other tax form.
32. Thus, CC&F did not determine how Defendant's income should be treated for tax
purposes, Defendant did.
1 Inher unsworn affirmation, Defendant complains thatCC&F served a Demand forDefendant's Residence. Aside
from CC&F's clear entitlement to disclosure of a party's entitlement under the CPLR, at the time of service on
September 15, 2021, Defendant's residentialaddress was unknown to CC&F. Indeed, when CC&F's process server
triedto serve Defendant upon commencement of thisaction,itwas found that the address Defendant had previously
provided when she moved to North Carolina was actually a VRBO rentalproperty, which she had by then vacated.
Thus, there were legitimate reasons to inquire into Defendant's residence. In any event, Defendant voluntarily
provided response tothis Demand inan e-mail on May 9, 2022.
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33. CC&F issued the required paperwork (i.e.,K-1, 1099s) consistent with itsown
only
accounting.
34. IfDefendant did not dispute this accounting with the Intemal Revenue Service or
the New York Department of Taxation, these admissions are material.
35. To be direct: if Defendant believed the disputed distributions to truly be 2020
income, she was obligated to claim that income.
36. If, as her counsel represents, she filed her taxes consistent with CC&F's
accounting, such admissions are material in this matter and her tax returns to demonstrate such
treatment of the income are indispensable.
37. Furthermore, Defendant need not be concerned about any confidentiality of her
husband's income, as there is already a Stipulated Confidentiality Order. She may even redact his
social security number and date of birth, since his information is immaterial.
38. Nevertheless, Defendant's own income and her independent treatment thereof for
tax purposes is central to disputed distributions at the core of this action.
39. CC&F's motion to compel production of those should be granted.
IV. DEFENDANT HAS FAILED TO MAKE THE REQUISITE GOOD-FAITH
EFFORTS TO RESOLVE HER DISCOVERY
DISPUTES WITH CC&F
40. Finally, Defendant's cross-motion raises a plethora of issues which have never
been addressed with CC&F, and no good-faith efforts have been made to resolve many of
Defendant's alleged discovery disputes, as required by applicable court rules.
41. Specifically, prior to commencing a discovery motion, Defendant's counsel is
required to discuss the subject of any disclosure dispute with his opponent to make a good-faith
effort to resolve the disputes, and such discussion must be by telephone or in-person. If such
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discussion does not result in resolution of the dispute and a motion is necessary, Defendant must
support any application to this Court with an affidavit of good faith demonstrating she has
complied with the meet-and-confer requirements applicable to discovery disputes. Failure to
comply with the rule warrants denial of a discovery motion. (See Plaintiff's Memorandum of
Law, pp. 3-4).
42. Defendant's motion lacks the required affidavit of good-faith efforts to resolve
these discovery disputes in advance of the motion, and should be denied. Moreover, each of
Defendant's contentions in her cross-motion are without merit.
A. Interrogatory Responses
43. Defendant has annexed to her cross-motion certain communications between your
deponent and her counsel. (Def. Ex. D).
44. At no time did Defendant contend that pointing her to the portions of CC&F's
voluminous production-over 9,000 pages in response to Defendant's overly broad requests-was
in any way unsatisfactory.
45. Indeed, itwas at Defendant's counsel's request that the Bates number ranges of the
responsive documents were provided. (Id. at 3 ["Please provide me with the bates [sic] numbers
of the documents that you believe are responsive to those interrogatories."]).
46. Per Defendant's counsel's request, CC&F identified those Bates ranges. (Id. at 1).
47. Defendant did not object to this response or engage in any good-faith efforts to
resolve this feigned dispute in advance of itscross-motion.
48. In any event, Defendant is well aware of the clients she allegedly originated and for
clients"
whom others at CC&F worked during her time as Of Counsel. Indeed, the "originated list
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a subject of discussion in advance of the Of Counsel Agreement, and the list of
was executing
those clients is annexed thereto as Exhibit "A". (Def. Ex. A).
clients"
49. to respond to Defendant's inquiries regarding the "originated
Accordingly,
for whom she and others in the firm billed, CC&F provided her with the complete billing records
demonstrating the hours each member, associate or other timekeeper within CC&F worked on
clients,"
each of Defendant's "originated broken down by client.
50. For example, CCF_0006199 indicated this data for CC&F's former associate,
Sebastian Piedmont. (Ex. S).
51. Each timekeeper's summary report constitutes a single page of the production.
52. Defendant's contentions are without merit, and seek to mislead this Court
regarding CC&F's responses.
53. Similarly misleading are Defendant's contentions with respect to the amounts
CC&F received during the term of the Of Counsel Agreement for Defendant's billed time and by
other timekeepers for Defendant's originated clients.
54. Such information is contained in a summary report at CCF_0006203-05. (Ex. U).
55. All of the supporting time entries for these billable hours are then contained in
subsequent reports.
56. Furthermore, the daily reports contained within CCF_0005810-79-with which
Defendant should be familiar as a recipient of such reports for the three (3) years she was a
member of CC&F-show the amounts received each day.
57. The redactions are of clients whose payments are irrelevant to this matter, leaving
clients"
only payments by Defendant's "originated or matters on which Defendant worked during
the term of the Of Counsel Agreement. (See, e.g., Ex. T).
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58. These targeted reports provide Defendant with exactly the information she sought
through these Interrogatories.
59. There is no basis for her cross-motion to compel further Interrogatory responses,
even if itwere procedurally proper before this Court.
B. Defendant May Not Disturb Privilege Which Do Not Belong to Her
60. In a further desperate attempt to demonstrate some irregularity in CC&F's
discovery, and deflect from her own discovery abuses, Defendant claims she is entitled to
privileged communications between CC&F attorneys and its clients, merely because she was a
party to those communications during her tenure as a member or Of Counsel with the firm.
61. As your deponent previously explained to Defendant's counsel, and which was
apparently accepted because Defendant failed to raise any further objection, neither Defendant nor
CC&F possess that privilege, which rests with the clients, and accordingly, neither party is able to
waive such privilege.
62. Defendant is no longer associated with CC&F and may not obtain privileged
communications with CC&F's clients.
63. As set forth more fully in the accompanying Reply Memorandum of Law, the
attorney-client privilege in New York belongs to the client, and may only be waived by the client.
The Legislature has specifically provided that only the client, and not the attorney may waive the
privilege. Similarly, any attorney-work product also belongs to the client. (See Plaintiff's Reply
Memorandum of Law, p. 6).
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64. Thus, absent a waiver from each of CC&F's clients, or former clients, with whom
Defendant communicated during her tenure as a member or Of Counsel with the firm, CC&F is
Defendant.2
unable to produce such privileged communications to
65. Your deponent explained the nature of the privileges at issue to Mr. Ryan in the
April 6, 2022 call,and that CC&F was not at liberty to disclose these privileged communications
to Defendant.
66. Defendant never followed up with any objection or provided any legal basis to
warrant disclosure of such privileged information.
67. Defendant has failed to engage in the good-faith efforts required in advance of her
cross-motion, and as such, itshould be denied.
68. In any event, such communications are also absolutely irrelevant to the
subject-matter of this litigation.
69. Defendant has no legitimate purpose for seeking disclosure of privileged
communications with CC&F's clients, as they relate neither to CC&F's attempts to recover
distributions Defendant wrongfully retains and the balance of her negative capital account, nor are
these communications pertinent to Defendant's counterclaims that she is owed yet additional
monies from CC&F under the Of Counsel Agreement.
70. In short, CC&F's privilege log reflects an appropriate assertion of the
attorney-client privilege on behalf of itsclients.
2 Although
Defendant has not disclosed such, CC&F isaware she isnow associated with another firm in Syracuse.
Under her misinterpretationof theattorney-clientprivilege,any attorney who leaves a law firmcould thereafterobtain
allprivileged communications she had with clientsofher former firm,even when working fora competing firm. Such
an interpretationof the privilegewould significantlyerode theprivilege. Inthat hypothetical situation,ifthe former
employee disclosed the contents of those privileged communications eitherto her new employer or to a third-party,
she would actuallybe in violation of numerous provisions of the Rules of Professional Conduct and subject to
discipline.Defendant's interpretationof theattorney-clientprivilege is baselessand should be rejected as contraryto
long-established,codified New York law.
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71. Defendant's understanding of the applicable privileges is erroneous.
C. Defendant Is Not Entitled to Non-Responsive Documents
72. As a final contention, Defendant appears to assert she is entitled to documents or
communications which are not responsive to any demand, and have no bearing on the
subject-matter of this litigation.
73. Defendant specifically takes issue with portions of e-mail communications that are
redacted as non-responsive.
74. As occurs with many e-mail exchanges, the topic of discussion may easily change
from one e-mail to the next.
75. In an abundance of caution, to be sure all responsive documents were provided,
CC&F produced every e-mail exchange where portions were responsive to Defendant's requests,
discussion.3
and simply redacted those portions which related to other topics of
76. Your deponent also explained to Mr. Ryan that these were non-responsive
communications.
77. Defendant made no objection, never followed up, and has not provided any
justification for why she might need these non-responsive communications.
3 "A" "E"
By way of example, if an e-mailexchange were comprised of fivedifferentmessages, denoted through for
"A" "C"
purposes of and
illustration, e-mails through were responsive toone of Defendant's overly broad requests,
"D" "E" "D" "E"
but and relatedto a separatetopic or were non-responsive, CC&F redacted and and produced the
e-mail exchange. As an alternative,CC&F could have only produced a version of theexchange containing messages
"A"
through "C". However, given that Defendant's requests were so broad, CC&F already reviewing over 20,000
"A"-"C"
documents inresponding to her requests,and ensuring thee-mail exchange with only message was part of
the production would have only added to the time required to respond to Defendant's requests, without any
justification.
By contrast,Defendant took over six(6) months to respond to CC&F's targetdocument requests, and she
produced just 183 pages.
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78. Furthermore, Defendant has made no showing to this Court why she is entitled to
documents or communications which are not responsive to any demand, nor is any subsequent
review of these non-responsive documents or communications a pertinent use of resources.
79. Defendant's cross-motion to compel production of non-responsive
communications is plainly meant only to harass, is without legal basis, and should be denied.
WHEREFORE, your deponent respectfully requests an Order of this Court: (a)
compelling Defendant to produce her State and Federal tax returns; and (b) denying Defendant's
cross-motion for failure to engage in the requisite good-faith discussions before bringing the
cross-motion, or in the alternative, because Defendant has not established entitlement to any of the
relief sought therein, together with costs and disbursements of the motion and such other and
further relief as the Court may deem just and proper.
DANIEL R. ROSE
Subscribed and sworn to before me
this ( day of May, 2022.
Notary Public
LAURIE.I. ALESCI
NotaryPublicin the State of New York
in Oswego Co. No.01AL4873119
Qualified
My Commission Expires October
6, 20_Qa
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CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
The foregoing Affidavit was prepared on a computer.
The total number of words in the Affidavit, inclusive of point headings and footnotes, and
exclusive of the caption, the table of contents, table of citations, signature block or certificate of
compliance, etc. is 2961, which complies with the word count limit.
Dated: May 18, 2022
COSTELLO,COONEY& FEARON,PLLC
DANIEL R. ROSE
Attorneys for Plaintiff
Office and Post Office Address
211 West Jefferson Street, Suite 1
Syracuse, New York 13202
Telephone: (315) 422-1152
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Preview
FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Index No. 003917/2021 Hon. Deborah H. Karalunas, J.S.C. Plaintiff, REPLY AFFIDAVIT IN FURTHER -vs- SUPPORT OF PLAINTIFF'S MOTION TO COMPEL AND IN MELINDA BURDICK OPPOSITION TO DEFENDANT'S BOWE, CROSS-MOTION TO COMPEL Defendant. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.: DANIEL R. ROSE, being duly sworn, deposes and says: 1. Your deponent is an attorney duly licensed and admitted to practice law in the State of New York and a member of the law firm of Costello, Cooney & Fearon, PLLC (hereinafter "CC&F"). As such, I am fully familiar with the facts and proceedings heretofore had in this action. 2. I submit this Reply Affidavit in further support of CC&F's motion to compel disclosure of Defendant's tax returns, as her treatment of her 2020 and 2021 income is indispensable to the resolution of this matter, and her own admissions regarding her income within those years are likely admissible evidence in this matter. 3. I also submit this Affidavit in opposition to Defendant's cross-motion to compel further responses to her Interrogatories and to produce privilege and non-responsive documents and communications. CC&F has previously provided Defendant with reports and information responsive to the Interrogatories, and has incorporated those documents by reference into its 1 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 Interrogatory responses. Her objections to those references have not been the subject of any good-faith efforts to resolve the discovery dispute, are misleading to this Court and are without merit. 4. Moreover, Defendant's contentions regarding the production of privileged communications with CC&F's clients lack basis in New York law. There is also no reason why Defendant should be entitled to any communications which are not responsive to her discovery demands or requests for production. Defendant's cross-motion should be denied in full, with costs to CC&F. 5. Prior to addressing the issues raised in the preceding paragraphs, itis necessary to address certain additional facts and procedural history notably omitted from Defendant's cross-motion. I. FURTHER PROCEDURAL HISTORY 6. Following CC&F's instant motion to compel filed February 24, 2022, Defendant finally served certain responses to Interrogatories and the First Notice to Produce over a month later, on March 31, 2022. Notably absent from Defendant's production were her State and Federal tax returns, although she had waived any objection to their production by to timely failing respond. 7. Six (6) months after CC&F served Defendant with its First Notice to Produce, she produced just 183 pages of documents related to the subject of this litigation. By contrast, CC&F has now produced over 9,100 pages in response to Defendant's overly broad demands. 8. In the interim, Defendant has also subpoenaed additional documents from CC&F's accountants. Upon information and belief, Defendant has failed or refused to provide CC&F with -2- 2 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 a copy of any documents received in response to that subpoena, in contravention of her disclosure obligations under the CPLR. 9. Following a conference with the Court the day after Defendant finally served certain Interrogatory responses and her limited document production, your deponent spoke with Defendant's counsel on April 6, 2022. 10. During the aforementioned discussion, having finally received some actual responses to its previously-served discovery requests, your deponent committed to providing further responses to Defendant's Interrogatories and Second Notice to Produce, and agreed to adjourn the pending motion. 11. Upon review of Defendant's Interrogatories and Notice to Produce, itbecame clear that all information requested had also previously been the subject of a demand, and accordingly, all responsive information had already been provided. Accordingly, CC&F advised Defendant it had already provided all responsive information in conjunction with its previous document productions of over 9,000 pages. (Def. Ex. C). 12. By e-mail dated May 3, 2022, Mr. Ryan wrote: I received your amended Interrogatory responses. In your original responses to numbers 5, 6, 7, 8 and 9, you stated that additional responses would be provided under separate cover. In your amended responses, you state that the requested information has been previously produced in CCF's document production. Please provide me with the bates [sic] numbers of the documents that you believe are responsive to those interrogatories. (Def. Ex. D at 3). 13. Those interrogatories sought identification of Defendant's own originated clients, and the work she and other timekeepers at CC&F had performed for those clients, and payments from those clients during the term of the Of Counsel Agreement. (Def. Ex. C at 6-9). -3- 3 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 14. Plainly, Defendant had not even reviewed CC&F's previous document production, because itcontained concise reports and spreadsheets reflecting this information. 15. As a courtesy to Mr. Ryan and as requested, your deponent provided him with the Bates ranges of those reports, and the supporting detail within CC&F's production. 16. By way of example, attached hereto as Exhibit S is a report detailing the time billed clients" by associate Sebastian S. Piedmont for all of Defendant's "originated during the term of the Of Counsel Agreement. 17. Such similar reports were provided for all timekeepers billing on Defendant's originated clients. These reports were specifically identified for Mr. Ryan in your deponent's e-mail. (Def. Ex. C at 1). 18. Similarly, where Defendant requested CC&F identify payments by its clients for work performed by Defendant or other timekeepers during the term of the Of Counsel Agreement, CC&F traced the payments received and the work for which each payment corresponded, and provided Defendant with daily e-mail reports indicating those payments. Payments by other clients that were non-responsive and irrelevant were removed, so only those reports and clients responsive to the demand were provided. One such report is attached hereto as Exhibit T. 19. A summary report of fees received during the term of the Of Counsel Agreement from Defendant's originated clients were also provided. A copy of that report is attached as Exhibit U. 20. At no time prior to her cross-motion did Defendant object that these reports were in any way insufficient or assert that CC&F was required to repeat the contents of these reports in its Interrogatory responses. -4- 4 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 21. Moreover, during the same April 6, 2022 telephone call, your deponent explained to Mr. Ryan that CC&F could not disclose its privileged communications and work-product to a third party such as Defendant. While she may have been previously Of Counsel to CC&F, she no longer is,and itwould violate privilege to disclose these materials. 22. Mr. Ryan did not object or provide any reasoning why Defendant would be entitled to this privileged information. Rather, he accepted CC&F's explanation why itcould not disclose privileged information. 23. I also explained to Mr. Ryan that CC&F had redacted non-responsive e-mail communications, where only a portion of an exchange was responsive to Defendant's demands. He also did not object or provide any explanation why Defendant needed non-responsive e-mail communications. 24. Following April 6, 2022, CC&F did not receive any further communications from Defendant regarding these alleged discovery deficiencies. II. DEFENDANT'S AFFIRMATION IS INADMISSIBLE AND SHOULD BE DISREGARDED 25. Within Defendant's Affirmation, dated May 11, 2022, and purportedly submitted in opposition to CC&F's motion to compel her to provide her tax returns, she recognizes that she is herein." the "named Defendant (Bowe Aff. ¶ 1). 26. Itis black-letter law in New York that only the statement of an attorney admitted to practice in New York and who is not a party to the action may submit an affirmation in lieu of an affidavit. Moreover, any person outside the bounds of the territory of the United States is permitted to submit an affirmation with similar effect. (See Plaintiff's Reply Memorandum of Law, pp. 1-2). -5- 5 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 27. Inasmuch as Defendant is concededly a party to this action, her affirmation is therefore inadmissible. (See Plaintiff's Reply Memorandum of Law, p. 2). 28. Moreover, although Defendant prefers to keep her location secretl, she also does not set forth that she is located outside the territories of the United States, such that she might benefit from subsection (b). 29. As a result, this Court should disregard Defendant's inadmissible affirmation. In any event, any complaint Defendant may have about the discovery with which CC&F served her nine (9) months ago, and to which she just responded following CC&F's motion are irrelevant, as she both waived any such objection, responded to the vast majority of CC&F's requests and failed to seek a protective order. III. DEFENDANT'S TAX RETURNS ARE INDISPENSABLE PARTY ADMISSIONS 30. Within her opposition to CC&F's application, Defendant naively or incorrectly claims that itwas CC&F who determined her treatment and reporting of her taxable income. (See Affidavit of Andrew J. Ryan, sworn to the 11th day of May, 2022, ¶ 8). 31. However, notwithstanding Defendant's acquiescence in how CC&F treated the income, a party may either claim additional undocumented income, or dispute amounts shown in a 1099 or other tax form. 32. Thus, CC&F did not determine how Defendant's income should be treated for tax purposes, Defendant did. 1 Inher unsworn affirmation, Defendant complains thatCC&F served a Demand forDefendant's Residence. Aside from CC&F's clear entitlement to disclosure of a party's entitlement under the CPLR, at the time of service on September 15, 2021, Defendant's residentialaddress was unknown to CC&F. Indeed, when CC&F's process server triedto serve Defendant upon commencement of thisaction,itwas found that the address Defendant had previously provided when she moved to North Carolina was actually a VRBO rentalproperty, which she had by then vacated. Thus, there were legitimate reasons to inquire into Defendant's residence. In any event, Defendant voluntarily provided response tothis Demand inan e-mail on May 9, 2022. -6- 6 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 33. CC&F issued the required paperwork (i.e.,K-1, 1099s) consistent with itsown only accounting. 34. IfDefendant did not dispute this accounting with the Intemal Revenue Service or the New York Department of Taxation, these admissions are material. 35. To be direct: if Defendant believed the disputed distributions to truly be 2020 income, she was obligated to claim that income. 36. If, as her counsel represents, she filed her taxes consistent with CC&F's accounting, such admissions are material in this matter and her tax returns to demonstrate such treatment of the income are indispensable. 37. Furthermore, Defendant need not be concerned about any confidentiality of her husband's income, as there is already a Stipulated Confidentiality Order. She may even redact his social security number and date of birth, since his information is immaterial. 38. Nevertheless, Defendant's own income and her independent treatment thereof for tax purposes is central to disputed distributions at the core of this action. 39. CC&F's motion to compel production of those should be granted. IV. DEFENDANT HAS FAILED TO MAKE THE REQUISITE GOOD-FAITH EFFORTS TO RESOLVE HER DISCOVERY DISPUTES WITH CC&F 40. Finally, Defendant's cross-motion raises a plethora of issues which have never been addressed with CC&F, and no good-faith efforts have been made to resolve many of Defendant's alleged discovery disputes, as required by applicable court rules. 41. Specifically, prior to commencing a discovery motion, Defendant's counsel is required to discuss the subject of any disclosure dispute with his opponent to make a good-faith effort to resolve the disputes, and such discussion must be by telephone or in-person. If such -7- 7 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 discussion does not result in resolution of the dispute and a motion is necessary, Defendant must support any application to this Court with an affidavit of good faith demonstrating she has complied with the meet-and-confer requirements applicable to discovery disputes. Failure to comply with the rule warrants denial of a discovery motion. (See Plaintiff's Memorandum of Law, pp. 3-4). 42. Defendant's motion lacks the required affidavit of good-faith efforts to resolve these discovery disputes in advance of the motion, and should be denied. Moreover, each of Defendant's contentions in her cross-motion are without merit. A. Interrogatory Responses 43. Defendant has annexed to her cross-motion certain communications between your deponent and her counsel. (Def. Ex. D). 44. At no time did Defendant contend that pointing her to the portions of CC&F's voluminous production-over 9,000 pages in response to Defendant's overly broad requests-was in any way unsatisfactory. 45. Indeed, itwas at Defendant's counsel's request that the Bates number ranges of the responsive documents were provided. (Id. at 3 ["Please provide me with the bates [sic] numbers of the documents that you believe are responsive to those interrogatories."]). 46. Per Defendant's counsel's request, CC&F identified those Bates ranges. (Id. at 1). 47. Defendant did not object to this response or engage in any good-faith efforts to resolve this feigned dispute in advance of itscross-motion. 48. In any event, Defendant is well aware of the clients she allegedly originated and for clients" whom others at CC&F worked during her time as Of Counsel. Indeed, the "originated list -8- 8 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 a subject of discussion in advance of the Of Counsel Agreement, and the list of was executing those clients is annexed thereto as Exhibit "A". (Def. Ex. A). clients" 49. to respond to Defendant's inquiries regarding the "originated Accordingly, for whom she and others in the firm billed, CC&F provided her with the complete billing records demonstrating the hours each member, associate or other timekeeper within CC&F worked on clients," each of Defendant's "originated broken down by client. 50. For example, CCF_0006199 indicated this data for CC&F's former associate, Sebastian Piedmont. (Ex. S). 51. Each timekeeper's summary report constitutes a single page of the production. 52. Defendant's contentions are without merit, and seek to mislead this Court regarding CC&F's responses. 53. Similarly misleading are Defendant's contentions with respect to the amounts CC&F received during the term of the Of Counsel Agreement for Defendant's billed time and by other timekeepers for Defendant's originated clients. 54. Such information is contained in a summary report at CCF_0006203-05. (Ex. U). 55. All of the supporting time entries for these billable hours are then contained in subsequent reports. 56. Furthermore, the daily reports contained within CCF_0005810-79-with which Defendant should be familiar as a recipient of such reports for the three (3) years she was a member of CC&F-show the amounts received each day. 57. The redactions are of clients whose payments are irrelevant to this matter, leaving clients" only payments by Defendant's "originated or matters on which Defendant worked during the term of the Of Counsel Agreement. (See, e.g., Ex. T). -9- 9 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 58. These targeted reports provide Defendant with exactly the information she sought through these Interrogatories. 59. There is no basis for her cross-motion to compel further Interrogatory responses, even if itwere procedurally proper before this Court. B. Defendant May Not Disturb Privilege Which Do Not Belong to Her 60. In a further desperate attempt to demonstrate some irregularity in CC&F's discovery, and deflect from her own discovery abuses, Defendant claims she is entitled to privileged communications between CC&F attorneys and its clients, merely because she was a party to those communications during her tenure as a member or Of Counsel with the firm. 61. As your deponent previously explained to Defendant's counsel, and which was apparently accepted because Defendant failed to raise any further objection, neither Defendant nor CC&F possess that privilege, which rests with the clients, and accordingly, neither party is able to waive such privilege. 62. Defendant is no longer associated with CC&F and may not obtain privileged communications with CC&F's clients. 63. As set forth more fully in the accompanying Reply Memorandum of Law, the attorney-client privilege in New York belongs to the client, and may only be waived by the client. The Legislature has specifically provided that only the client, and not the attorney may waive the privilege. Similarly, any attorney-work product also belongs to the client. (See Plaintiff's Reply Memorandum of Law, p. 6). -10- 10 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 64. Thus, absent a waiver from each of CC&F's clients, or former clients, with whom Defendant communicated during her tenure as a member or Of Counsel with the firm, CC&F is Defendant.2 unable to produce such privileged communications to 65. Your deponent explained the nature of the privileges at issue to Mr. Ryan in the April 6, 2022 call,and that CC&F was not at liberty to disclose these privileged communications to Defendant. 66. Defendant never followed up with any objection or provided any legal basis to warrant disclosure of such privileged information. 67. Defendant has failed to engage in the good-faith efforts required in advance of her cross-motion, and as such, itshould be denied. 68. In any event, such communications are also absolutely irrelevant to the subject-matter of this litigation. 69. Defendant has no legitimate purpose for seeking disclosure of privileged communications with CC&F's clients, as they relate neither to CC&F's attempts to recover distributions Defendant wrongfully retains and the balance of her negative capital account, nor are these communications pertinent to Defendant's counterclaims that she is owed yet additional monies from CC&F under the Of Counsel Agreement. 70. In short, CC&F's privilege log reflects an appropriate assertion of the attorney-client privilege on behalf of itsclients. 2 Although Defendant has not disclosed such, CC&F isaware she isnow associated with another firm in Syracuse. Under her misinterpretationof theattorney-clientprivilege,any attorney who leaves a law firmcould thereafterobtain allprivileged communications she had with clientsofher former firm,even when working fora competing firm. Such an interpretationof the privilegewould significantlyerode theprivilege. Inthat hypothetical situation,ifthe former employee disclosed the contents of those privileged communications eitherto her new employer or to a third-party, she would actuallybe in violation of numerous provisions of the Rules of Professional Conduct and subject to discipline.Defendant's interpretationof theattorney-clientprivilege is baselessand should be rejected as contraryto long-established,codified New York law. -11- 11 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 71. Defendant's understanding of the applicable privileges is erroneous. C. Defendant Is Not Entitled to Non-Responsive Documents 72. As a final contention, Defendant appears to assert she is entitled to documents or communications which are not responsive to any demand, and have no bearing on the subject-matter of this litigation. 73. Defendant specifically takes issue with portions of e-mail communications that are redacted as non-responsive. 74. As occurs with many e-mail exchanges, the topic of discussion may easily change from one e-mail to the next. 75. In an abundance of caution, to be sure all responsive documents were provided, CC&F produced every e-mail exchange where portions were responsive to Defendant's requests, discussion.3 and simply redacted those portions which related to other topics of 76. Your deponent also explained to Mr. Ryan that these were non-responsive communications. 77. Defendant made no objection, never followed up, and has not provided any justification for why she might need these non-responsive communications. 3 "A" "E" By way of example, if an e-mailexchange were comprised of fivedifferentmessages, denoted through for "A" "C" purposes of and illustration, e-mails through were responsive toone of Defendant's overly broad requests, "D" "E" "D" "E" but and relatedto a separatetopic or were non-responsive, CC&F redacted and and produced the e-mail exchange. As an alternative,CC&F could have only produced a version of theexchange containing messages "A" through "C". However, given that Defendant's requests were so broad, CC&F already reviewing over 20,000 "A"-"C" documents inresponding to her requests,and ensuring thee-mail exchange with only message was part of the production would have only added to the time required to respond to Defendant's requests, without any justification. By contrast,Defendant took over six(6) months to respond to CC&F's targetdocument requests, and she produced just 183 pages. -12- 12 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 78. Furthermore, Defendant has made no showing to this Court why she is entitled to documents or communications which are not responsive to any demand, nor is any subsequent review of these non-responsive documents or communications a pertinent use of resources. 79. Defendant's cross-motion to compel production of non-responsive communications is plainly meant only to harass, is without legal basis, and should be denied. WHEREFORE, your deponent respectfully requests an Order of this Court: (a) compelling Defendant to produce her State and Federal tax returns; and (b) denying Defendant's cross-motion for failure to engage in the requisite good-faith discussions before bringing the cross-motion, or in the alternative, because Defendant has not established entitlement to any of the relief sought therein, together with costs and disbursements of the motion and such other and further relief as the Court may deem just and proper. DANIEL R. ROSE Subscribed and sworn to before me this ( day of May, 2022. Notary Public LAURIE.I. ALESCI NotaryPublicin the State of New York in Oswego Co. No.01AL4873119 Qualified My Commission Expires October 6, 20_Qa -13- 13 of 14 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/18/2022 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b The foregoing Affidavit was prepared on a computer. The total number of words in the Affidavit, inclusive of point headings and footnotes, and exclusive of the caption, the table of contents, table of citations, signature block or certificate of compliance, etc. is 2961, which complies with the word count limit. Dated: May 18, 2022 COSTELLO,COONEY& FEARON,PLLC DANIEL R. ROSE Attorneys for Plaintiff Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 -14- 14 of 14