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STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
-VS-
MELINDA BURDICK BOWE,
Defendant.
Index No. 003917/2021
Hon. Deborah H. Karalunas, J.S.C.
REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO
COMPEL AND IN OPPOSITION TO DEFENDANT'S CROSS-MOTION TO COMPEL
COSTELLO, COONEY & FEARON, PLLC
Attorneys for Plaintiff
Office and Post Office Address
211 West Jefferson Street, Suite 1
Syracuse, New York 13202
Telephone: (315) 422-1152
DANIEL R. ROSE,
Of Counsel
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PRELIMINARY STATEMENT
In this now limited to the issue of whether Defendant's State and Federal tax
motion, only
returns are discoverable, Defendant responds with extensive complaints about the discovery
devices to which she has responded, in an inadmissible party affirmation. She has failed
already
to explain how the admissions within her tax returns are not indispensable, and reasonably
calculated to lead to the discovery of admissible evidence. In her cross-motion, she raises a
plethora of issues for the first time which have not been the subject of any good-faith efforts to
resolve discovery disputes. CC&F has produced nearly 10,000 pages in documents to Defendant,
and has provided her with all pertinent information requested, within the spirit of New York's
liberal discovery. The cross-motion should be denied, and Defendant should be compelled to
produce her 2020-2021 State and Federal tax returns, at a minimum.
STATEMENT OF FACTS
The facts pertinent to CC&F's motion are set forth fully in the Affidavit of Paul G. Ferrara,
sworn to the 24th day of February, 2022 and the Affidavit of Good Faith of Daniel R. Rose, sworn
to the 24th day of February, 2022. Additional pertinent facts and procedural in opposition
history
to Defendant's cross-motion are contained in the Affidavit of Daniel R. Rose,
accompanying Reply
sworn to the 18th day of May, 2022.
ARGUMENT
POINT I
DEFENDANT'S AFFIRMATION IS INADMISSIBLE AND
SHOULD BE DISREGARDED
Within Defendant's Affirmation, dated May 11, 2022 and submitted in
purportedly
opposition to CC&F's motion to compel her to provide her tax returns, she recognizes that she is
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herein." Practice Law and Rules
the "named Defendant (Bowe Aff.¶ 1). Section 2106 of the Civil
provides, in pertinent part:
The statement of an attorney admitted to practice in the courts of the state
(a)
. who
. . is not a party to an action, when subscribed and affirmed by
him to be true under the penalties of perjury, may be served or filed in the
action in lieu of and with the same force and effect as an affidavit.
(b) The statement of any person, when that person is physically located
outside the geographic boundaries of the United States, Puerto Rico, the
United States Virgin Islands, or any territory or insular possession subject
to the jurisdiction of the United States, subscribed and affirmed by that
person to be true under the penalties of perjury, may be used in an action
in lieu of and with the same force and effect as an affidavit.
Inasmuch as Defendant is concededly a party to this action, her affirmation is therefore
inadmissible. See, e.g., Slavenburg Corp. v. Opus Apparel, Inc., 53 N.Y.2d 799, 801 n. (1981)
("[E]ven those persons who are statutorily allowed to use such affirmations cannot do so when
they are a party to an action."); Harris v. Krauss, 87 A.D.3d 469, 469 (1st Dep't 2011); Lessoff v.
26 Ct. St. Assocs., LLC, 58 A.D.3d 610, 611 (2d Dep't 2009) cases); LaRusso v. Katz, 30
(citing
A.D.3d 240, 243 (1st Dep't 2006). Moreover, although Defendant prefers to keep her location
secret (see Rose Reply Aff. ¶ 28 n.1), 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). As a result, this
Court should disregard Defendant's inadmissible affirmation. In any event, complaint
any
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 such
any
objection, responded to the vast majority of CC&F's requests and failed to seek a protective order.
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POINT II
DEFENDANT'S TAX RETURNS ARE INDISPENSABLE PARTY ADMISSIONS
Throughout her opposition, Defendant naively or incorrectly claims that itwas CC&F who
determined her treatment and of her taxable income. (Defendant's Memorandum of
reporting
Law, p. 2; Affidavit of Andrew J. Ryan, sworn to the 11th day of May, 2022, ¶ 8). 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.
Thus, CC&F did not determine how Defendant's income should be treated for tax purposes,
Defendant did. CC&F only issued the required paperwork (i.e.,K-1, 1099s) consistent with its
own accounting. If Defendant did not dispute this accounting with the Internal Revenue Service
or the New York Department ofTaxation, these admissions are material. To be direct: ifDefendant
believed the disputed distributions to truly be 2020 income, she was obligated to claim that income.
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. Furthermore, Defendant need not be concerned about any
confidentiality of her husband's income, as there is already a Stipulated Order.
Confidentiality
She may even redact his social security number and date of birth, since his information is
immaterial. Nevertheless, Defendant's own income and her independent treatment thereof for tax
purposes is central to disputed distributions at the core of this action.
POINT III
DEFENDANT HAS FAILED TO MAKE THE REQUISITE GOOD-FAITH EFFORTS
TO RESOLVE HER DISCOVERY DISPUTES WITH CC&F
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 of Defendant's
many
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as required the Rules of Supreme Court. Accordingly, Defendant's
alleged discovery disputes, by
cross-motion should be denied until such time as the requisite good-faith efforts have been
accomplished.
Effective 1, 2022, Section 202.20-f of the Rules of Supreme Court requires that:
February
Absent exigent circumstances, prior to contacting the court
(b)
regarding a disclosure dispute, counsel must first consult with one
another in a good faith effort to resolve all disputes about
disclosure. Such consultation must take place by an in-person or
telephonic conference. In the event that a discovery dispute cannot
be resolved other than through motion practice, each such
discovery motion shall be supported by an affidavit or affirmation
from counsel attesting to counsel having conducted an in-person or
telephonic conference, setting forth the date and time of such
conference, persons participating, and the length of time of the
conference. . . .
(c) The failure of counsel to comply with this rule may result in the
denial of a discovery motion, without prejudice to renewal once the
provisions of this rule have been complied with, or in such motion
being held in abeyance until the informal resolution procedures of
the court are conducted.
Initially, Defendant's cross-motion lacks the required affidavit of good-faith efforts to
resolve these discovery disputes in advance of the motion, and for that reason alone must be denied.
22 NYCRR 202.20-f(c). Moreover, each of Defendant's contentions in her cross-motion are
without merit.
A. Interrogatory Responses
Defendant has annexed to her cross-motion certain communications between counsel
related to this matter. (Def. Ex. D). At no time did Defendant contend that her to the
pointing
portions of CC& F's voluminous production-over 9,000 pages in response to Defendant's overly
broad requests-was in any way unsatisfactory. Indeed, itwas at Defendant's counsel's request
that the Bates number ranges of the responsive documents were provided. (Id. at 3 ["Please
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numbers of the documents that you believe are responsive to those
provide me with the bates [sic]
interrogatories."]). Per Defendant's counsel's request, CC&F identified those Bates ranges. (Id
at 1). Defendant did not object to this response or engage in any good-faith efforts to resolve this
newly-invented dispute in advance of itscross-motion.
In event, Defendant is well-aware of the clients she allegedly originated and for whom
any
clients"
others at CC&F worked her time as Of Counsel. Indeed, the "originated list was a
during
subject of discussion in advance of the Of Counsel Agreement, and the list of those
executing
clients is annexed thereto as Exhibit "A". (Def. Ex. A). Accordingly, to respond to Defendant's
clients"
inquiries regarding the "originated 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
clients,"
other timekeeper within CC&F worked on each of Defendant's "originated broken down
by client. For example, CCF_0006199 indicated this data for CC&F's former associate, Sebastian
Piedmont. (Ex. S). Each timekeeper's summary report constitutes a single page of the production.
Defendant's contentions are without merit, and seek to mislead this Court regarding CC&F's
responses.
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. Such information is contained in a summary report
at CCF_0006203-05. (Ex. U). All of the supporting time entries for these billable hours are then
contained in subsequent reports. the reports contained within CCF_0005810-
Furthermore, daily
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. The redactions are of clients
whose payments are irrelevant to this matter, leaving only payments by Defendant's "originated
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clients."
(See, Ex. T). These targeted reports provide Defendant with exactly the information
e.g.,
she sought through these Interrogatories. There is no basis for her cross-motion to compel further
responses, even if itwere procedurally proper before this Court.
Interrogatory
B. Defendant May Not Disturb Privileges Which Do Not Belong to Her
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 itsclients, merely because she was a party to those
communications during her tenure as a member or Of Counsel with the firm. As CC&F 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. Defendant is no longer
associated with CC&F and may not obtain privileged communications with CC&F's clients.
It isa fundamental tenet of New York law that the attorney-client privilege belongs to the
client, and may only be waived by the client. See, e.g., People v. Osorio, 75 N.Y.2d 80, 84 (1989)
("The privilege belongs to the client and attaches if information is disclosed in confidence to the
attorney for the purpose of obtaining legal advice or services."). Section 4503(a) of the Civil
Practice Law and Rules expressly prohibits CC&F from disclosing privileged communications
without a waiver from itsclients: "Unless the client waives the privilege, an attorney or his or her
."
employee . . . shallnot disclose, or be allowed to disclose such communication . . . (Emphasis
'client'
added). Thus, the statute codified by the Legislature "expressly permits the to waive the
privilege,"
and not counsel. See Mayorga v. Tate, 302 A.D.2d 11, 14 (2d Dep't 2002). Moreover,
any attorney work-product similarly belongs to the client. See Sage Realty Corp. v. Proskauer
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N.Y.2d 30 (1997). CC&F explained the basis for
Rose Goet: & Mendelsohn LLP., 91
itsprivileged communications with itsclients or former clients
withholding
absent a waiver from each of CC&F's clients, or former clients, with whom
Thus,
Defendant communicated her tenure as a member or Of Counsel with the firm, CC&F is
during
Defendant.1 nature of
unable to produce such privileged communications to CC&F explained the
the privileges at issue and that itwas not at to disclose these privileged communications to
liberty
Defendant. Defendant never followed with objection or provided any legal basis to warrant
up any
disclosure of such privileged information. Defendant has failed to engage in the good-faith efforts
required in advance of her cross-motion, and as such, itshould be denied.
In event, such communications are also absolutely irrelevant to the subject-matter of
any
this litigation. 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. In short, CC&F's privilege log reflects an
appropriate assertion of the attorney-client privilege on behalf of its clients. Defendant's
understanding of the applicable privileges is erroneous.
I Although not disclosed is now Syracuse.
Defendant has such, CC& F aware she is associated with another firm in
Under her misinterpretation of theattorney-clientprivilege,any attorney who leaves a law firmcould thereafterobtain
allprivileged communications shehad with clientsofher former firm, even when working fora competing firm. Such
an interpretationof the privilegewould significantlyerode the privilege. In thathypothetical situation,ifthe former
employee disclosed the contents of those privileged communications eitherto her new employer or toa third-pany,
she would actually be inviolation of numerous provisions of the Rules of Professional Conduct and subject to
discipline.Defendant's interpretationof theattorney-client privilegeis baselessand should be rejectedas contrary to
long-established,codified New York law.
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C. Defendant Is Not Entitled to Non-Responsive Documents
Defendant appears to assert she is entitled to documents or
As a final contention,
have no on the subject-
communications which are not responsive to any demand, and bearing
matter of this litigation. Defendant takes issue with portions of e-mail
specifically
communications which are redacted as non-responsive. As occurs with many e-mail exchanges,
the topic of discussion change from one e-mail to the next. In an abundance of caution,
may easily
to be sure all responsive documents were provided, CC&F produced every e-mail exchange where
portions were responsive to Defendant's requests, and simply redacted those portions which
discussion.2 non-
related to other topics of CC&F also explained to Mr. Ryan that these were
responsive communications. Defendant made no objection, never followed up, and has not
provided justification for why she might need these non-responsive communications.
any
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. 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.
CONCLUSION
Defendant's refusal to provide her tax returns is without basis, as her treatment of her
taxable income is absolutely critical to central issues in this litigation regarding the distributions
2 "A" "E"
By way ofexample, ifan e-mail exchange were comprised offive differentmessages, 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" e-
but and relatedto a separatetopic or were non-responsive, CC&F redacted and and produced the
mail exchange. As an alternative,CC&F could have only produced a version of theexchange containing messages
"A"
through "C". However, given thatDefendant's requests were so broad, CC&F already reviewing over 20,000
"A"-"C"
documents in responding 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 torespond to CC&F's targetdocument requests,and
she produced just 183 pages.
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which Defendant retains. and those retums are to lead to the discovery of
improperly likely
admissible evidence in the form of Defendant's own admissions. CC&F's motion to compel the
production of those tax retums should be granted.
contrast, Defendant's cross-motion is wholly without merit. Defendant has failed to
By
comply with the procedure necessary to bring such a motion, and has not supported her application
with the requisite affidavit of good-faith. Her own affirmation is inadmissible and should be
disregarded. Finally, Defendant has also not shown that there is any basis to compel further
responses to Interrogatories or that she is entitled to any privileged or non-responsive
communications. Defendant s cross-motion should be denied.
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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CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
The foregoing Memorandum of Law was prepared on a computer.
The total number of words in the Memorandum of Law, 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 2694, which complies with the word count limit.
Dated: May 18, 2022
COSTELLO, COONEY & FEARON, PLLC
DANIEL R. RO
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. 62 RECEIVED NYSCEF: 05/18/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, -VS- MELINDA BURDICK BOWE, Defendant. Index No. 003917/2021 Hon. Deborah H. Karalunas, J.S.C. REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL AND IN OPPOSITION TO DEFENDANT'S CROSS-MOTION TO COMPEL COSTELLO, COONEY & FEARON, PLLC Attorneys for Plaintiff Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 DANIEL R. ROSE, Of Counsel 1 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 PRELIMINARY STATEMENT In this now limited to the issue of whether Defendant's State and Federal tax motion, only returns are discoverable, Defendant responds with extensive complaints about the discovery devices to which she has responded, in an inadmissible party affirmation. She has failed already to explain how the admissions within her tax returns are not indispensable, and reasonably calculated to lead to the discovery of admissible evidence. In her cross-motion, she raises a plethora of issues for the first time which have not been the subject of any good-faith efforts to resolve discovery disputes. CC&F has produced nearly 10,000 pages in documents to Defendant, and has provided her with all pertinent information requested, within the spirit of New York's liberal discovery. The cross-motion should be denied, and Defendant should be compelled to produce her 2020-2021 State and Federal tax returns, at a minimum. STATEMENT OF FACTS The facts pertinent to CC&F's motion are set forth fully in the Affidavit of Paul G. Ferrara, sworn to the 24th day of February, 2022 and the Affidavit of Good Faith of Daniel R. Rose, sworn to the 24th day of February, 2022. Additional pertinent facts and procedural in opposition history to Defendant's cross-motion are contained in the Affidavit of Daniel R. Rose, accompanying Reply sworn to the 18th day of May, 2022. ARGUMENT POINT I DEFENDANT'S AFFIRMATION IS INADMISSIBLE AND SHOULD BE DISREGARDED Within Defendant's Affirmation, dated May 11, 2022 and submitted in purportedly opposition to CC&F's motion to compel her to provide her tax returns, she recognizes that she is 2 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 herein." Practice Law and Rules the "named Defendant (Bowe Aff.¶ 1). Section 2106 of the Civil provides, in pertinent part: The statement of an attorney admitted to practice in the courts of the state (a) . who . . is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit. (b) The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Inasmuch as Defendant is concededly a party to this action, her affirmation is therefore inadmissible. See, e.g., Slavenburg Corp. v. Opus Apparel, Inc., 53 N.Y.2d 799, 801 n. (1981) ("[E]ven those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action."); Harris v. Krauss, 87 A.D.3d 469, 469 (1st Dep't 2011); Lessoff v. 26 Ct. St. Assocs., LLC, 58 A.D.3d 610, 611 (2d Dep't 2009) cases); LaRusso v. Katz, 30 (citing A.D.3d 240, 243 (1st Dep't 2006). Moreover, although Defendant prefers to keep her location secret (see Rose Reply Aff. ¶ 28 n.1), 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). As a result, this Court should disregard Defendant's inadmissible affirmation. In any event, complaint any 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 such any objection, responded to the vast majority of CC&F's requests and failed to seek a protective order. -2- 3 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 POINT II DEFENDANT'S TAX RETURNS ARE INDISPENSABLE PARTY ADMISSIONS Throughout her opposition, Defendant naively or incorrectly claims that itwas CC&F who determined her treatment and of her taxable income. (Defendant's Memorandum of reporting Law, p. 2; Affidavit of Andrew J. Ryan, sworn to the 11th day of May, 2022, ¶ 8). 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. Thus, CC&F did not determine how Defendant's income should be treated for tax purposes, Defendant did. CC&F only issued the required paperwork (i.e.,K-1, 1099s) consistent with its own accounting. If Defendant did not dispute this accounting with the Internal Revenue Service or the New York Department ofTaxation, these admissions are material. To be direct: ifDefendant believed the disputed distributions to truly be 2020 income, she was obligated to claim that income. 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. Furthermore, Defendant need not be concerned about any confidentiality of her husband's income, as there is already a Stipulated Order. Confidentiality She may even redact his social security number and date of birth, since his information is immaterial. Nevertheless, Defendant's own income and her independent treatment thereof for tax purposes is central to disputed distributions at the core of this action. POINT III DEFENDANT HAS FAILED TO MAKE THE REQUISITE GOOD-FAITH EFFORTS TO RESOLVE HER DISCOVERY DISPUTES WITH CC&F 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 of Defendant's many -3- 4 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 as required the Rules of Supreme Court. Accordingly, Defendant's alleged discovery disputes, by cross-motion should be denied until such time as the requisite good-faith efforts have been accomplished. Effective 1, 2022, Section 202.20-f of the Rules of Supreme Court requires that: February Absent exigent circumstances, prior to contacting the court (b) regarding a disclosure dispute, counsel must first consult with one another in a good faith effort to resolve all disputes about disclosure. Such consultation must take place by an in-person or telephonic conference. In the event that a discovery dispute cannot be resolved other than through motion practice, each such discovery motion shall be supported by an affidavit or affirmation from counsel attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time of such conference, persons participating, and the length of time of the conference. . . . (c) The failure of counsel to comply with this rule may result in the denial of a discovery motion, without prejudice to renewal once the provisions of this rule have been complied with, or in such motion being held in abeyance until the informal resolution procedures of the court are conducted. Initially, Defendant's cross-motion lacks the required affidavit of good-faith efforts to resolve these discovery disputes in advance of the motion, and for that reason alone must be denied. 22 NYCRR 202.20-f(c). Moreover, each of Defendant's contentions in her cross-motion are without merit. A. Interrogatory Responses Defendant has annexed to her cross-motion certain communications between counsel related to this matter. (Def. Ex. D). At no time did Defendant contend that her to the pointing portions of CC& F's voluminous production-over 9,000 pages in response to Defendant's overly broad requests-was in any way unsatisfactory. Indeed, itwas at Defendant's counsel's request that the Bates number ranges of the responsive documents were provided. (Id. at 3 ["Please -4- 5 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 numbers of the documents that you believe are responsive to those provide me with the bates [sic] interrogatories."]). Per Defendant's counsel's request, CC&F identified those Bates ranges. (Id at 1). Defendant did not object to this response or engage in any good-faith efforts to resolve this newly-invented dispute in advance of itscross-motion. In event, Defendant is well-aware of the clients she allegedly originated and for whom any clients" others at CC&F worked her time as Of Counsel. Indeed, the "originated list was a during subject of discussion in advance of the Of Counsel Agreement, and the list of those executing clients is annexed thereto as Exhibit "A". (Def. Ex. A). Accordingly, to respond to Defendant's clients" inquiries regarding the "originated 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 clients," other timekeeper within CC&F worked on each of Defendant's "originated broken down by client. For example, CCF_0006199 indicated this data for CC&F's former associate, Sebastian Piedmont. (Ex. S). Each timekeeper's summary report constitutes a single page of the production. Defendant's contentions are without merit, and seek to mislead this Court regarding CC&F's responses. 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. Such information is contained in a summary report at CCF_0006203-05. (Ex. U). All of the supporting time entries for these billable hours are then contained in subsequent reports. the reports contained within CCF_0005810- Furthermore, daily 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. The redactions are of clients whose payments are irrelevant to this matter, leaving only payments by Defendant's "originated -5- 6 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 clients." (See, Ex. T). These targeted reports provide Defendant with exactly the information e.g., she sought through these Interrogatories. There is no basis for her cross-motion to compel further responses, even if itwere procedurally proper before this Court. Interrogatory B. Defendant May Not Disturb Privileges Which Do Not Belong to Her 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 itsclients, merely because she was a party to those communications during her tenure as a member or Of Counsel with the firm. As CC&F 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. Defendant is no longer associated with CC&F and may not obtain privileged communications with CC&F's clients. It isa fundamental tenet of New York law that the attorney-client privilege belongs to the client, and may only be waived by the client. See, e.g., People v. Osorio, 75 N.Y.2d 80, 84 (1989) ("The privilege belongs to the client and attaches if information is disclosed in confidence to the attorney for the purpose of obtaining legal advice or services."). Section 4503(a) of the Civil Practice Law and Rules expressly prohibits CC&F from disclosing privileged communications without a waiver from itsclients: "Unless the client waives the privilege, an attorney or his or her ." employee . . . shallnot disclose, or be allowed to disclose such communication . . . (Emphasis 'client' added). Thus, the statute codified by the Legislature "expressly permits the to waive the privilege," and not counsel. See Mayorga v. Tate, 302 A.D.2d 11, 14 (2d Dep't 2002). Moreover, any attorney work-product similarly belongs to the client. See Sage Realty Corp. v. Proskauer -6- 7 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 N.Y.2d 30 (1997). CC&F explained the basis for Rose Goet: & Mendelsohn LLP., 91 itsprivileged communications with itsclients or former clients withholding absent a waiver from each of CC&F's clients, or former clients, with whom Thus, Defendant communicated her tenure as a member or Of Counsel with the firm, CC&F is during Defendant.1 nature of unable to produce such privileged communications to CC&F explained the the privileges at issue and that itwas not at to disclose these privileged communications to liberty Defendant. Defendant never followed with objection or provided any legal basis to warrant up any disclosure of such privileged information. Defendant has failed to engage in the good-faith efforts required in advance of her cross-motion, and as such, itshould be denied. In event, such communications are also absolutely irrelevant to the subject-matter of any this litigation. 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. In short, CC&F's privilege log reflects an appropriate assertion of the attorney-client privilege on behalf of its clients. Defendant's understanding of the applicable privileges is erroneous. I Although not disclosed is now Syracuse. Defendant has such, CC& F aware she is associated with another firm in Under her misinterpretation of theattorney-clientprivilege,any attorney who leaves a law firmcould thereafterobtain allprivileged communications shehad with clientsofher former firm, even when working fora competing firm. Such an interpretationof the privilegewould significantlyerode the privilege. In thathypothetical situation,ifthe former employee disclosed the contents of those privileged communications eitherto her new employer or toa third-pany, she would actually be inviolation of numerous provisions of the Rules of Professional Conduct and subject to discipline.Defendant's interpretationof theattorney-client privilegeis baselessand should be rejectedas contrary to long-established,codified New York law. -7- 8 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 C. Defendant Is Not Entitled to Non-Responsive Documents Defendant appears to assert she is entitled to documents or As a final contention, have no on the subject- communications which are not responsive to any demand, and bearing matter of this litigation. Defendant takes issue with portions of e-mail specifically communications which are redacted as non-responsive. As occurs with many e-mail exchanges, the topic of discussion change from one e-mail to the next. In an abundance of caution, may easily to be sure all responsive documents were provided, CC&F produced every e-mail exchange where portions were responsive to Defendant's requests, and simply redacted those portions which discussion.2 non- related to other topics of CC&F also explained to Mr. Ryan that these were responsive communications. Defendant made no objection, never followed up, and has not provided justification for why she might need these non-responsive communications. any 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. 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. CONCLUSION Defendant's refusal to provide her tax returns is without basis, as her treatment of her taxable income is absolutely critical to central issues in this litigation regarding the distributions 2 "A" "E" By way ofexample, ifan e-mail exchange were comprised offive differentmessages, 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" e- but and relatedto a separatetopic or were non-responsive, CC&F redacted and and produced the mail exchange. As an alternative,CC&F could have only produced a version of theexchange containing messages "A" through "C". However, given thatDefendant's requests were so broad, CC&F already reviewing over 20,000 "A"-"C" documents in responding 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 torespond to CC&F's targetdocument requests,and she produced just 183 pages. -8- 9 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 which Defendant retains. and those retums are to lead to the discovery of improperly likely admissible evidence in the form of Defendant's own admissions. CC&F's motion to compel the production of those tax retums should be granted. contrast, Defendant's cross-motion is wholly without merit. Defendant has failed to By comply with the procedure necessary to bring such a motion, and has not supported her application with the requisite affidavit of good-faith. Her own affirmation is inadmissible and should be disregarded. Finally, Defendant has also not shown that there is any basis to compel further responses to Interrogatories or that she is entitled to any privileged or non-responsive communications. Defendant s cross-motion should be denied. 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 -9- 10 of 11 FILED: ONONDAGA COUNTY CLERK 05/18/2022 11:46 AM INDEX NO. 003917/2021 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/18/2022 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b The foregoing Memorandum of Law was prepared on a computer. The total number of words in the Memorandum of Law, 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 2694, which complies with the word count limit. Dated: May 18, 2022 COSTELLO, COONEY & FEARON, PLLC DANIEL R. RO Attorneys for Plaintiff Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 -10- 11 of 11