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FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021
NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024
To commence the statutory time for
appeals as of right (CPLR 5513[a]), you
are advised to serve a copy of this order,
with notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER – I.A.S. PART
PRESENT: HON. THOMAS QUIÑONES, J.S.C.
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DECISION AND ORDER
KATHLEEN A. ELLIS,
Plaintiff(s) Index No. 64659/2021
Motion Sequence No. 6
-against-
ELIZABETH BYRNE, RACHEL HENNIG,
THE PRINCIPAL FINANCIAL GROUP, INC.,
A/K/A PRINCIPAL, WELLS FARGO INSTITUTIONAL
RETIREMENT AND TRUST, A BUSINESS UNIT OF
WELLS FARGO N.A., AND SUBARU DISTRIBUTORS CORP.,
Defendant(s).
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The following papers were filed to the New York State Court Electronic Filing System
(NYSCEF) and read on the motion filed by Defendants Elizabeth Byrne and Rachel Hennig
requesting a court order pursuant to CPLR §§ 5015(a)(1), (3), and (5) to vacate the October 3, 2023
Decision and October 16, 2023 Order compelling said defendants to produce their iPhones for review
by Plaintiff.
NYSCEF Documents No. 240-249, 251-257, 259.
Background Facts:
On October 11, 2021, Plaintiff commenced this action by filing a Summons and Complaint
(NYSCEF Doc. 1). The Complaint alleges causes of action sounding in (i) declaratory judgment;
(ii) breach of contract; (iii) tortious interference with contract; and (iv) unjust enrichment. Plaintiff
alleges that, on February 16, 2021 and February 20, 2021, Defendants Elizabeth Byrne (“Byrne”)
and Rachel Hennig (“Hennig”) used a computer (or technological) device to unlawfully change the
beneficiary designation on a certain “401(k) account” from Plaintiff to themselves.
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Relevant Procedural History:
A. “Zuckerman Decision”:
Plaintiff previously filed a motion (Motion Seq. No. 2) requesting a court order (i) pursuant
to CPLR §3124, directing Defendants Elizabeth Byrne and Rachel Hennig to comply with certain
discovery demands and to produce their cellular telephones (“iPhones”) for forensic examination,
and (ii) pursuant to CPLR §3126, for sanctions.
The Court’s Decision and Order dated November 21, 2022 [ Zuckerman, J.S.C.] (hereinafter,
“Zuckerman Decision”), in pertinent part, stated:
“Here, Defendants ‘turned in’ their iPhones, and obtained replacement devices, while
already aware that Plaintiff had accused them of using a computer device to
unlawfully change the beneficiary designation. Defendants do not argue otherwise.
Thus, Plaintiff has met its burden to establish spoliation. Therefore, Plaintiff's motion
for an order directing Defendants to produce their presently owned iPhones for
forensic examination must be granted. Plaintiff’s request that Defendants bear the cost
of such forensic examination is denied.” (NYSCEF Doc. 110 at pg. 10).
The Zuckerman Decision set forth the following decretal paragraphs related to the production
of the iPhones during the course of discovery in this action:
“ORDERED, that Defendants Elizabeth Byrne and Rachel Hennig shall provide the
replacement iPhones that they obtained when they "turned in" the ones which they
owned on February 20, 2021 (“the iPhones”) to counsel for Plaintiff, along with any
information necessary to access all of the images, data, and information in the
iPhones, within ten days of this Decision and Order; and it is further
ORDERED, that, beginning on the date of this Decision and Order, Defendants shall
not alter, delete or in any way change any of the images, data, and information in the
iPhones; and it is further
ORDERED, that counsel for Plaintiff shall return the aforesaid iPhones to counsel
within ten days of receipt.” (NYSCEF Doc. 110 at pg. 13-14).
B. “Quiñones September 7, 2023 Decision”:
Counsel for Defendants Byrne and Hennig filed a motion (Motion Seq. No. 4) pursuant to
CPLR §2221 for renewal of the Zuckerman Decision. Plaintiff filed a cross-motion (Motion Seq. No.
5) to compel compliance with such decision directing disclosure of the iPhones for forensic
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examination. In pertinent part, the Decision and Order dated September 7, 2023 [Quiñones, J.S.C.]
(hereinafter, “Quiñones September 7, 2023 Decision”) set forth the following decretal paragraphs
related to the production of the iPhones:
“ORDERED AND ADJUDGED that the Moving Defendants' application for leave to
renew Justice Zuckerman's Decision and Order dated November 21, 2022 is denied
in accordance with this Court's findings hereinabove; and it is further
ORDERED AND ADJUDGED that Plaintiff’s application to compel the Moving
Defendants’ [Byrne and Hennig] compliance with Justice Zuckerman’s Decision and
Order dated November 21, 2022 is granted in accordance with this Court’s findings
hereinabove. The Moving Defendants [Byrne and Hennig] are hereby directed to
comply on or before September 12, 2023 with Justice Zuckerman’s Decision and
Order dated November 21, 2022 directing the Moving Defendants [Byrne and
Hennig] to ‘provide the replacement iPhones that they obtained when they ‘turned in’
the ones which they owned on February 20, 2021 (‘the iPhones’) to counsel for
Plaintiff, along with any information necessary to access all of the images, data and
information in the iPhones; and it is further
ORDERED AND ADJUDGED that Plaintiff’s application for an order striking the
Moving Defendants’ Answer is denied at this time to afford the Moving Defendants
[Byrne and Hennig] one more opportunity to comply with this Court’s directive
hereinabove. Should the Moving Defendants fail to comply as hereinabove directed,
the Moving Defendants’ Answer shall be stricken.
ORDERED AND ADJUDGED that Plaintiffs application for counsel fees and
sanctions pursuant to 22 NYCRR § 130-1.1 is hereby granted in the amount of $7,500
to be paid on or before October 6, 2023….” (NYSCEF Doc. 209).
C. Quiñones October 16, 2023 Decision:
This matter was scheduled for a “status” compliance conference on October 3, 2023 which
was memorialized by the so-ordered transcript dated October 16, 2023 (hereinafter, “Quiñones
October 16, 2023 Decision”). (NYSCEF Doc. 221). Counsel presented their respective arguments
related to the status of disclosure of the iPhones in accordance with the Zuckerman Decision, the
disclosure deadline having been extended by the Quiñones September 7, 2023 Decision. Counsel for
the Plaintiff argued, in part, that the subject defendants Byrne and Hennig did not turn over the
iPhones as directed by the Court and consequently, their answer should be stricken as provided for
in the Quiñones September 7, 2023 Decision. Counsel for the subject defendants Byrne and Hennig
argued, in part, that counsel for the parties were previously consulting with Judge Zuckerman’s law
clerk regarding the “protocol for production of the phones” (Id. at page 4, line 20) and, upon
agreement on such protocol, the subject defendants “produced … a hard drive with the forensic image
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of the phones in accordance with the protocol and in compliance with the Court's orders” consisting
of “over 100,000 files” (Id. at page 4-5). Counsel for the subject defendants also claims they worked
with Plaintiff’s experts in obtaining such images in accordance with such protocol at defendants’
expense. (Id. at page 12). In essence, counsel for the subject defendants maintain that there are three
“carve outs” for materials not subject to disclosure: (i) attorney-client privilege; (ii) psychologist-
client privilege (to the extent that the iPhone of defendant Hennig a psychologist, may contain same);
and (iii) Byrne’s prior litigation with Subaru which concluded in a settlement. To the contrary,
Plaintiff’s counsel refutes such contentions that counsel agreed to a disclosure protocol and reiterates
that the specific directives set forth in the Zuckerman Decision remain in effect. Plaintiff further
contends that the subject defendants did not avail themselves of the proper remedies including the
failure to file motion to reargue or modification of the Zuckerman Decision and/or motion for stay
pending appeal. (Id. at page 13-14). Plaintiff’s counsel also stated that the disclosed images of the
iPhones were not “forensic images” (Id. at page 6), and the disclosure did not include other text
messages known to exist. (Id. at page 8-9).
At the conclusion of the hearing, the Court mad ethe following determinations:
(1) The Court determined that “either the iPhones are turned over or the Answer will be
stricken.” (NYSCEF Doc. 221 at page 16);
(2) As it related to any purported stipulation setting forth any “protocols” for such disclosure
of iPhones, the Court determined that “[t]here is nothing for the Court to enforce. There
was no stipulation other than Judge Zuckerman’s order as it plainly reads.” (Id.)
(3) The Court granted Defendants’ oral application for a stay until October 20, 2023 to seek
relief from the Appellate Division concerning the trial court’s decision to compel
Defendants to turnover their iPhones. (Id. at page 17).
Moving Defendants’ Motion:
The instant motion (Motion Seq. 6) was filed by Defendants Byrne and Hennig (collectively
hereinafter, the “Moving Defendants”). The Moving Defendants request vacatur of “Quiñones
October 16, 2023 Decision” compelling the Moving Defendants to produce their iPhones for review
by Plaintiff pursuant to CPLR § 5015(a)(1), (3), and (5). (See, NYSCEF Doc. 240, Notice of Motion).
Defense counsel argues that such iPhones contain non-discoverable materials including:
(i) communications protected by the attorney-client privilege and the psychologist-patient privilege;
(ii) information protected from disclosure by a confidentiality clause in a settlement agreement in an
unrelated employment litigation between Byrne and her former employer, defendant Subaru
Distributors Corp. (“Subaru”); (iii) highly confidential personal health information (“PHI”) not only
of Byrne but also Hennig’s patients; and (iv) information protected by HIPAA and other personal
information (“PI”) such as Byrne’s tax return and social security number.
Moving Defendants contends that they have complied with the prior discovery order(s)
related to the iPhones on two separate occasions and, therefore, this Court should vacate the Quiñones
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October 16, 2023 Decision. Moreover, the Moving Defendants further contend that the Quiñones
October 16, 2023 Decision should be modified or vacated for any one of at least three other reasons
under CPLR §§ 5015(a)(1), (3) and/or (5), because the Quiñones October 16, 2023 Decision:
(a) were the result of fraud, misrepresentations, and other misconduct by Plaintiff and her counsel;
(b) were complied with but, to the extent they were not, it was the result of an excusable default on
the part of Defendants; and/or (c) should be vacated in the interest of justice.
First, counsel argues that the Zuckerman Decision was the result of fraud, misrepresentation,
and misconduct. Specifically, counsel argues that “Plaintiff’s counsel convinced Justice Zuckerman
that Defendants spoliated evidence when they turned in their iPhones to Apple for new iPhones,
claiming location data may have been lost, but Defendants had already saved all of the information
from those iPhones to the iCloud to preserve information and did so despite Plaintiff’s counsel never
having sent a Litigation Hold Letter to them” (NYSCEF Doc. 241 ¶8). Counsel states that all counsel
of record participated in court conferences with Justice Zuckerman’s principal law clerk held on
December 20, 2022, January 4, 2023 and January 13, 2023 to discuss protocols for such disclosure,
including the scope of time as well as excluding attorney-client and psychologist-client privileged
information. Counsel claims that at the January 13, 2023 court conference, respective counsel
reached agreement as to the protocol for such disclosure, as memorialized in attorney e-mails dated
February 22, 2023 and March 10, 2023. (NYSCEF Doc. 246). Counsel claims that, in reliance on
such agreed protocol, the counsel for the Moving Defendants withdrew their first appeal and
produced the iPhones for Plaintiff’s technology expert. (Id. at ¶13). Defense counsel contends that,
in April 2023, before the inspection of the iPhones was completed, Moving Defendants received
written proof from documents produced in discovery by Wells Fargo that the beneficiary changes to
Decedent’s 401(k) were not made by Defendants or anyone else on an iPhone. Counsel contends that
the evidence produced by Wells Fargo demonstrated that the beneficiary designation changes were
made via a computer not owned by Defendants. (Id. at ¶15). The Moving Defendants thereafter
promptly filed a motion to renew the earlier order compelling Defendants to turnover their iPhones.
This Court’s decision dated September 7, 2023 denied Moving Defendants’ renewal motion, directed
Defendants to comply with Justice Zuckerman’s order by September 12, 2023 and imposed sanctions
of $7,500.00 that we respectfully submit were totally unwarranted. (Id. at ¶18).
Second, counsel argues the Moving Defendants have complied with disclosure directives in
accordance with the agreed protocol. On September 12, 2023, in reliance on the agreed protocol,
Defendants produced images of their iPhones without the protected documents, but rather with a
privilege log. The Moving Defendant’s discovery production was accompanied by a cover letter
stating: “As per the agreement we reached during our conference with [Justice Zuckerman’s
principal law clerk], on January 13, 2023, Byrne’s and Hennig’s current iPhones were produced to a
forensic litigation e-discovery company… on January 19, 2023, to take an Initial Forensic Image.”
(Id. at ¶15, citing Motion Exhibit G).
Third, counsel argues that Plaintiff’s counsel intentionally made false statements on two
occasions thus warranting vacatur of the discovery orders pursuant to CPLR § 5015(a)(3). Counsel
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states that the Plaintiff’s counsel made misrepresentations that counsel of record never reached a
protocol agreement and that the Moving Defendants failed to make the requisite iPhone disclosure.
The first alleged instance was at the September 13, 2023 compliance conference, counsel for
the Moving Defendants heard, for the first time, that it was Plaintiff’s position that they never reached
a protocol agreement. To the contrary, the Moving Defendants contend that all counsel of record met
three different times with Plaintiff’s counsel to agree upon a protocol, did not pursue their appeal in
reliance upon such protocol agreement, spent tens of hours reviewing the iPhones for protected
information and preparing a privilege log, spent additional money to make the redacted images and
turned over those images and privilege log only to have Plaintiff’s counsel misrepresent that no
protocol ever had been agreed upon. Defense counsel claims such conduct alone warrants vacating
this Court’s Decision and Order.
The second alleged instance was on October 3, 2023, when counsel of record provided oral
argument on the court record related to the instant motion and, more specifically, the prior court
directives related to the iPhone disclosure. Counsel for the Moving Defendant contends that Plaintiff
intentionally failed to inform this Court of essential facts including, amongst of things, that
subsequent to the Zuckerman Decision issued in November 2022, there was unequivocal evidence
from Wells Fargo that Defendants’ iPhones had not been used to make the beneficiary changes to
the subject 401(k) account. (Id. at ¶22).
Fourth, counsel argued that the Moving Defendants timely filed a Notice of Appeal and an
Order to Show Cause on or about October 17, 2023, seeking leave to appeal and requesting the
continuation of the trial court’s stay until such time as the Appellate Division could rule on the
underlying merits of the appeal. Counsel contends that, by filing the Notice of Appeal and
subsequently turning over complete images of the phones on October 24, 2023, there also was and
continues to be an automatic stay in place pursuant to CPLR §5519(a)(4). The Appellate Division
entered Defendants’ Order to Show Cause on or about October 18, 2023 and afforded Plaintiff time
to file opposition papers by October 26, 2023 concerning the stay and the underlying merits of the
appeal. Plaintiff filed her opposition papers. At the time of the Moving Defendants’ instant motion
before this trial court, counsel stated that they are awaiting a ruling from the Appellate Division.
Plaintiff’s Opposition:
Plaintiff filed opposition to the Moving Defendants’ motion on the following grounds.
First, Plaintiff contends that the Moving Defendants’ instant motion to strike or vacate prior
court discovery order(s) related to the iPhones should be denied outright. Simply stated, Plaintiff
argues that CPLR §5015(a)(1) is not a proper remedy for the Moving Defendants and their motion
pursuant to CPLR §5015(a)(1) must be denied in all respects. In that regard, Plaintiff argue that the
Quiñones September 7, 2023 Decision granted Plaintiff’s motion to strike Defendants’ Answer in a
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conditional order dated September 7, 2023. Counsel states that the Moving Defendants did not move
for reargument of Quiñones September 7, 2023 Decision, which Plaintiff argues became final when
the stay ended on October 20, 2023, and Defendants failed to turn over their iPhones.
Second, Plaintiff contends that the Moving Defendants are not entitled to vacatur of prior
discovery order(s) pursuant to CPLR § 5015(a)(3) since there was no fraud, misrepresentation, or
other misconduct attributable to Plaintiff and/or Plaintiff’s counsel. Plaintiff contends that the
Moving Defendants offer nothing more than “broad, unsubstantiated allegations of fraud on the part
of the Plaintiff or Plaintiff’s counsel, and thus the Moving Defendants’ motion should be denied in
its entirety.
Third, Plaintiff contends that discretionary vacatur pursuant to CPLR § 5015(a)(5) is not
warranted under the circumstances presented. Counsel reiterates that the Moving Defendants did not
appeal from Justice Quiñones’ September 7, 2023 Order, and accordingly such order should not be
reversed, modified, or vacated.
Fourth, Plaintiff submits that Plaintiff’s proposed judgment which, inter alia, strikes the
Moving Defendants’ Answer for failure to turn over the iPhones. In that regard, counsel argues that
the Quiñones’ September 7, 2023 Decision did not explicitly direct Plaintiff to file a Judgment with
Notice of Settlement, Plaintiff e-filed a proposed Judgment and supporting Affirmation on NYSCEF
on October 23, 2023. (NYSCEF Nos. 231-232). Counsel further argues that, after midnight on
October 20, 2023, there was no stay of Justice Quiñones’ September 7, 2023 Order nor was there
any stay in the Appellate Division, Second Department in effect. Moving Defendants never turned
over their iPhones to Plaintiff’s counsel. Accordingly, Plaintiff contends that their proposed
Judgment should be signed and entered in favor of Plaintiff.
Decision:
Defendants’ motion is premised upon the following three (3) subsections of CPLR §5015
entitled “Relief from judgment or order”:
(1) CPLR § 5015(a)(1) provides, in part, that:
“(a) On motion. The court which rendered a judgment or order may relieve a party from
it upon such terms as may be just, on motion of any interested person with such notice as
the court may direct, upon the ground of: (1) excusable default, if such motion is made
within one year after service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has entered the judgment or order,
within one year after such entry.”
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(2) CPLR § 5015(a)(3) provides, in part, that:
“(a) On motion. The court which rendered a judgment or order may relieve a party from
it upon such terms as may be just, on motion of any interested person with such notice as
the court may direct, upon the ground of: …[subsection](3) fraud, misrepresentation, or
other misconduct of an adverse party”.
(3) CPLR § 5015(a)(5) provides, in part, that: “(a) On motion. The court which rendered a
judgment or order may relieve a party from it upon such terms as may be just, on motion
of any interested person with such notice as the court may direct, upon the ground of: …
[subsection](5) reversal, modification or vacatur of a prior judgment or order upon which
it is based.”
As to Defendant’s CPLR § 5015(a)(1) arguments, such arguments are not available to the
Defendants who have, for all intents and purposes, “appeared” on all prior motion practice related to
the iPhone disclosure dispute. Specifically, Defendants, through counsel of record, previously filed
opposition papers relative to Plaintiff’s prior motion to compel such iPhone disclosure of
Defendants’ iPhones (Motion Seq. No. 2) which was adjudicated by the “Zuckerman Decision”.
Defendants previously filed a motion for renewal of the Zuckerman Decision (Motion Seq. No. 4),
including reply papers, which was adjudication by the “Quiñones September 7, 2023 Decision”.
Defendants were also heard on such application at the October 3, 2023 court conference, which was
adjudicated by the so-ordered transcript filed as NYSCEF Document No. 221. Lastly, Defendants
also filed the instant motion, including reply papers, now for vacatur of the prior court directives.
As to Defendant’s CPLR § 5015(a)(3) arguments, Defendants failed to establish the existence
of any fraud or misrepresentation by Plaintiffs. Defendants’ contentions that a discovery production
from Wells Fargo evinces that no 401K account changes were made via iPhone was previously
presented and considered in connection with [Defendants’] Motion Seq No. 4 and [Plaintiff’s] Cross-
Motion Seq. No. 5, both of which were adjudicated by the “Quinones September 7, 2023 Decision”.
Defendants’ contention that the Plaintiff misrepresented the parties’ “stipulation” as to protocols for
complying with the Zuckerman Order was also previously heard and considered at the October 3,
2023 court conference, which was adjudicated by the so-ordered transcript filed as NYSCEF Doc.
No. 221 as well as the Quiñones October 16, 2023 Decision. Moreover, the emails amongst counsel
related to the “stipulation” refute Defendants’ contention. Specifically, the February 22, 2023 email
from Plaintiff’s counsel, in pertinent part, states that although counsel have circulated redlined copied
of a proposed stipulation to set forth protocols for iPhone disclosure, “we have not been able to agree
to the terms of that Stipulation.” (NYSCEF Doc. 218, page 2). The Quiñones October 16, 2023
Decision, in pertinent part, confirmed that no such stipulation has been executed.
As to Defendant’s CPLR § 5015(a)(5) arguments, such relief is not warranted under the
circumstances presented. Zuckerman Decision directed disclosure of the Defendants’ iPhones. The
Quiñones September 7, 2023 Decision, in essence, enforced the Zuckerman Order with the additional
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caveats that (i) the Defendants were granted an extension of time to comply with the prior disclosure
directives set forth in the Zuckerman Order; (ii) any further failure to make such disclosure as
directed would result in the Defendants’ Answer being stricken, and (iii) the Defendant’s oral
application for a brief stay to file an appeal with a request for a temporary stay at the appellate court
was granted to October 20, 2023. Defendants did not move for reargument of the Quiñones
September 7, 2023 Decision, which became final when the stay ended on October 20, 2023, and
Defendants failed to turn over their iPhones as previously directed in the Zuckerman Order, the
deadline for production having been extended by the Quiñones September 7, 2023 Decision. (See
Von Maack v. Wycoff Heights Med. Ctr., 195 A.D.3d 769, 771 [2d Dept. 2021][“where . . . a party
fails to comply with the terms of a conditional order prior to the deadline imposed therein, the
conditional order becomes absolute.”]). In short, Moving Defendants failed to comply with the
iPhone disclosure directives set forth in the Zuckerman Order for over a year ago, without just cause.
Moreover, the arguments now raised by the Moving Defendant (specifically, the existence of
disclosure protocol agreement and need for a privilege log) were previously raised and considered in
connection with prior motion practice and adjudicated in Plaintiff’s favor. Based on the foregoing, it
is hereby
ORDERED that, the Moving Defendants’ motion is DENIED. It is further
ORDERED that, insofar as the Quiñones September 7, 2023 Decision extended the Moving
Defendants’ timeframe to comply with the disclosure directive in the Zuckerman Order and stated
that any further noncompliance shall result in such Moving Defendants’ Answer being stricken, and
the Moving Defendants have not produced the replacement iPhones to Plaintiff’s counsel, over a
year after the initial disclosure directive issued in the Zuckerman Order, the Moving Defendants’
Answer is hereby stricken. It is further
ORDERED an inquest on damages as to the Moving Defendants shall occur at the trial of the
instant action against the remaining defendants, or in the event that the instant matter shall not
proceed to trial as against the remaining defendants, Plaintiff shall file a note of issue within thirty
(30) days of any disposition of the claims against the remaining defendants and thereafter appear in
the Trial Assignment Part (“TAP”) for the scheduling of an inquest on damages as to the Moving
Defendants. It is further
ORDERED that, as to the remaining named defendants, this matter will be scheduled for a
virtual court conference by separate court notice(s) with Microsoft Teams conference link
information issued by the Judge’s Part Clerk Anissa Robinson.
The foregoing constitutes the Decision and Order of this Court.
Dated: March 19, 2024 ENTER:
White Plains, New York
_________________________________
HON. THOMAS QUIÑONES, J.S.C.
TO: Filed to NYSCEF
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FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER – I.A.S. PART PRESENT: HON. THOMAS QUIÑONES, J.S.C. ------------------------------------------------------------------------x DECISION AND ORDER KATHLEEN A. ELLIS, Plaintiff(s) Index No. 64659/2021 Motion Sequence No. 6 -against- ELIZABETH BYRNE, RACHEL HENNIG, THE PRINCIPAL FINANCIAL GROUP, INC., A/K/A PRINCIPAL, WELLS FARGO INSTITUTIONAL RETIREMENT AND TRUST, A BUSINESS UNIT OF WELLS FARGO N.A., AND SUBARU DISTRIBUTORS CORP., Defendant(s). ------------------------------------------------------------------------x The following papers were filed to the New York State Court Electronic Filing System (NYSCEF) and read on the motion filed by Defendants Elizabeth Byrne and Rachel Hennig requesting a court order pursuant to CPLR §§ 5015(a)(1), (3), and (5) to vacate the October 3, 2023 Decision and October 16, 2023 Order compelling said defendants to produce their iPhones for review by Plaintiff. NYSCEF Documents No. 240-249, 251-257, 259. Background Facts: On October 11, 2021, Plaintiff commenced this action by filing a Summons and Complaint (NYSCEF Doc. 1). The Complaint alleges causes of action sounding in (i) declaratory judgment; (ii) breach of contract; (iii) tortious interference with contract; and (iv) unjust enrichment. Plaintiff alleges that, on February 16, 2021 and February 20, 2021, Defendants Elizabeth Byrne (“Byrne”) and Rachel Hennig (“Hennig”) used a computer (or technological) device to unlawfully change the beneficiary designation on a certain “401(k) account” from Plaintiff to themselves. 1 1 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 Relevant Procedural History: A. “Zuckerman Decision”: Plaintiff previously filed a motion (Motion Seq. No. 2) requesting a court order (i) pursuant to CPLR §3124, directing Defendants Elizabeth Byrne and Rachel Hennig to comply with certain discovery demands and to produce their cellular telephones (“iPhones”) for forensic examination, and (ii) pursuant to CPLR §3126, for sanctions. The Court’s Decision and Order dated November 21, 2022 [ Zuckerman, J.S.C.] (hereinafter, “Zuckerman Decision”), in pertinent part, stated: “Here, Defendants ‘turned in’ their iPhones, and obtained replacement devices, while already aware that Plaintiff had accused them of using a computer device to unlawfully change the beneficiary designation. Defendants do not argue otherwise. Thus, Plaintiff has met its burden to establish spoliation. Therefore, Plaintiff's motion for an order directing Defendants to produce their presently owned iPhones for forensic examination must be granted. Plaintiff’s request that Defendants bear the cost of such forensic examination is denied.” (NYSCEF Doc. 110 at pg. 10). The Zuckerman Decision set forth the following decretal paragraphs related to the production of the iPhones during the course of discovery in this action: “ORDERED, that Defendants Elizabeth Byrne and Rachel Hennig shall provide the replacement iPhones that they obtained when they "turned in" the ones which they owned on February 20, 2021 (“the iPhones”) to counsel for Plaintiff, along with any information necessary to access all of the images, data, and information in the iPhones, within ten days of this Decision and Order; and it is further ORDERED, that, beginning on the date of this Decision and Order, Defendants shall not alter, delete or in any way change any of the images, data, and information in the iPhones; and it is further ORDERED, that counsel for Plaintiff shall return the aforesaid iPhones to counsel within ten days of receipt.” (NYSCEF Doc. 110 at pg. 13-14). B. “Quiñones September 7, 2023 Decision”: Counsel for Defendants Byrne and Hennig filed a motion (Motion Seq. No. 4) pursuant to CPLR §2221 for renewal of the Zuckerman Decision. Plaintiff filed a cross-motion (Motion Seq. No. 5) to compel compliance with such decision directing disclosure of the iPhones for forensic 2 2 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 examination. In pertinent part, the Decision and Order dated September 7, 2023 [Quiñones, J.S.C.] (hereinafter, “Quiñones September 7, 2023 Decision”) set forth the following decretal paragraphs related to the production of the iPhones: “ORDERED AND ADJUDGED that the Moving Defendants' application for leave to renew Justice Zuckerman's Decision and Order dated November 21, 2022 is denied in accordance with this Court's findings hereinabove; and it is further ORDERED AND ADJUDGED that Plaintiff’s application to compel the Moving Defendants’ [Byrne and Hennig] compliance with Justice Zuckerman’s Decision and Order dated November 21, 2022 is granted in accordance with this Court’s findings hereinabove. The Moving Defendants [Byrne and Hennig] are hereby directed to comply on or before September 12, 2023 with Justice Zuckerman’s Decision and Order dated November 21, 2022 directing the Moving Defendants [Byrne and Hennig] to ‘provide the replacement iPhones that they obtained when they ‘turned in’ the ones which they owned on February 20, 2021 (‘the iPhones’) to counsel for Plaintiff, along with any information necessary to access all of the images, data and information in the iPhones; and it is further ORDERED AND ADJUDGED that Plaintiff’s application for an order striking the Moving Defendants’ Answer is denied at this time to afford the Moving Defendants [Byrne and Hennig] one more opportunity to comply with this Court’s directive hereinabove. Should the Moving Defendants fail to comply as hereinabove directed, the Moving Defendants’ Answer shall be stricken. ORDERED AND ADJUDGED that Plaintiffs application for counsel fees and sanctions pursuant to 22 NYCRR § 130-1.1 is hereby granted in the amount of $7,500 to be paid on or before October 6, 2023….” (NYSCEF Doc. 209). C. Quiñones October 16, 2023 Decision: This matter was scheduled for a “status” compliance conference on October 3, 2023 which was memorialized by the so-ordered transcript dated October 16, 2023 (hereinafter, “Quiñones October 16, 2023 Decision”). (NYSCEF Doc. 221). Counsel presented their respective arguments related to the status of disclosure of the iPhones in accordance with the Zuckerman Decision, the disclosure deadline having been extended by the Quiñones September 7, 2023 Decision. Counsel for the Plaintiff argued, in part, that the subject defendants Byrne and Hennig did not turn over the iPhones as directed by the Court and consequently, their answer should be stricken as provided for in the Quiñones September 7, 2023 Decision. Counsel for the subject defendants Byrne and Hennig argued, in part, that counsel for the parties were previously consulting with Judge Zuckerman’s law clerk regarding the “protocol for production of the phones” (Id. at page 4, line 20) and, upon agreement on such protocol, the subject defendants “produced … a hard drive with the forensic image 3 3 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 of the phones in accordance with the protocol and in compliance with the Court's orders” consisting of “over 100,000 files” (Id. at page 4-5). Counsel for the subject defendants also claims they worked with Plaintiff’s experts in obtaining such images in accordance with such protocol at defendants’ expense. (Id. at page 12). In essence, counsel for the subject defendants maintain that there are three “carve outs” for materials not subject to disclosure: (i) attorney-client privilege; (ii) psychologist- client privilege (to the extent that the iPhone of defendant Hennig a psychologist, may contain same); and (iii) Byrne’s prior litigation with Subaru which concluded in a settlement. To the contrary, Plaintiff’s counsel refutes such contentions that counsel agreed to a disclosure protocol and reiterates that the specific directives set forth in the Zuckerman Decision remain in effect. Plaintiff further contends that the subject defendants did not avail themselves of the proper remedies including the failure to file motion to reargue or modification of the Zuckerman Decision and/or motion for stay pending appeal. (Id. at page 13-14). Plaintiff’s counsel also stated that the disclosed images of the iPhones were not “forensic images” (Id. at page 6), and the disclosure did not include other text messages known to exist. (Id. at page 8-9). At the conclusion of the hearing, the Court mad ethe following determinations: (1) The Court determined that “either the iPhones are turned over or the Answer will be stricken.” (NYSCEF Doc. 221 at page 16); (2) As it related to any purported stipulation setting forth any “protocols” for such disclosure of iPhones, the Court determined that “[t]here is nothing for the Court to enforce. There was no stipulation other than Judge Zuckerman’s order as it plainly reads.” (Id.) (3) The Court granted Defendants’ oral application for a stay until October 20, 2023 to seek relief from the Appellate Division concerning the trial court’s decision to compel Defendants to turnover their iPhones. (Id. at page 17). Moving Defendants’ Motion: The instant motion (Motion Seq. 6) was filed by Defendants Byrne and Hennig (collectively hereinafter, the “Moving Defendants”). The Moving Defendants request vacatur of “Quiñones October 16, 2023 Decision” compelling the Moving Defendants to produce their iPhones for review by Plaintiff pursuant to CPLR § 5015(a)(1), (3), and (5). (See, NYSCEF Doc. 240, Notice of Motion). Defense counsel argues that such iPhones contain non-discoverable materials including: (i) communications protected by the attorney-client privilege and the psychologist-patient privilege; (ii) information protected from disclosure by a confidentiality clause in a settlement agreement in an unrelated employment litigation between Byrne and her former employer, defendant Subaru Distributors Corp. (“Subaru”); (iii) highly confidential personal health information (“PHI”) not only of Byrne but also Hennig’s patients; and (iv) information protected by HIPAA and other personal information (“PI”) such as Byrne’s tax return and social security number. Moving Defendants contends that they have complied with the prior discovery order(s) related to the iPhones on two separate occasions and, therefore, this Court should vacate the Quiñones 4 4 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 October 16, 2023 Decision. Moreover, the Moving Defendants further contend that the Quiñones October 16, 2023 Decision should be modified or vacated for any one of at least three other reasons under CPLR §§ 5015(a)(1), (3) and/or (5), because the Quiñones October 16, 2023 Decision: (a) were the result of fraud, misrepresentations, and other misconduct by Plaintiff and her counsel; (b) were complied with but, to the extent they were not, it was the result of an excusable default on the part of Defendants; and/or (c) should be vacated in the interest of justice. First, counsel argues that the Zuckerman Decision was the result of fraud, misrepresentation, and misconduct. Specifically, counsel argues that “Plaintiff’s counsel convinced Justice Zuckerman that Defendants spoliated evidence when they turned in their iPhones to Apple for new iPhones, claiming location data may have been lost, but Defendants had already saved all of the information from those iPhones to the iCloud to preserve information and did so despite Plaintiff’s counsel never having sent a Litigation Hold Letter to them” (NYSCEF Doc. 241 ¶8). Counsel states that all counsel of record participated in court conferences with Justice Zuckerman’s principal law clerk held on December 20, 2022, January 4, 2023 and January 13, 2023 to discuss protocols for such disclosure, including the scope of time as well as excluding attorney-client and psychologist-client privileged information. Counsel claims that at the January 13, 2023 court conference, respective counsel reached agreement as to the protocol for such disclosure, as memorialized in attorney e-mails dated February 22, 2023 and March 10, 2023. (NYSCEF Doc. 246). Counsel claims that, in reliance on such agreed protocol, the counsel for the Moving Defendants withdrew their first appeal and produced the iPhones for Plaintiff’s technology expert. (Id. at ¶13). Defense counsel contends that, in April 2023, before the inspection of the iPhones was completed, Moving Defendants received written proof from documents produced in discovery by Wells Fargo that the beneficiary changes to Decedent’s 401(k) were not made by Defendants or anyone else on an iPhone. Counsel contends that the evidence produced by Wells Fargo demonstrated that the beneficiary designation changes were made via a computer not owned by Defendants. (Id. at ¶15). The Moving Defendants thereafter promptly filed a motion to renew the earlier order compelling Defendants to turnover their iPhones. This Court’s decision dated September 7, 2023 denied Moving Defendants’ renewal motion, directed Defendants to comply with Justice Zuckerman’s order by September 12, 2023 and imposed sanctions of $7,500.00 that we respectfully submit were totally unwarranted. (Id. at ¶18). Second, counsel argues the Moving Defendants have complied with disclosure directives in accordance with the agreed protocol. On September 12, 2023, in reliance on the agreed protocol, Defendants produced images of their iPhones without the protected documents, but rather with a privilege log. The Moving Defendant’s discovery production was accompanied by a cover letter stating: “As per the agreement we reached during our conference with [Justice Zuckerman’s principal law clerk], on January 13, 2023, Byrne’s and Hennig’s current iPhones were produced to a forensic litigation e-discovery company… on January 19, 2023, to take an Initial Forensic Image.” (Id. at ¶15, citing Motion Exhibit G). Third, counsel argues that Plaintiff’s counsel intentionally made false statements on two occasions thus warranting vacatur of the discovery orders pursuant to CPLR § 5015(a)(3). Counsel 5 5 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 states that the Plaintiff’s counsel made misrepresentations that counsel of record never reached a protocol agreement and that the Moving Defendants failed to make the requisite iPhone disclosure. The first alleged instance was at the September 13, 2023 compliance conference, counsel for the Moving Defendants heard, for the first time, that it was Plaintiff’s position that they never reached a protocol agreement. To the contrary, the Moving Defendants contend that all counsel of record met three different times with Plaintiff’s counsel to agree upon a protocol, did not pursue their appeal in reliance upon such protocol agreement, spent tens of hours reviewing the iPhones for protected information and preparing a privilege log, spent additional money to make the redacted images and turned over those images and privilege log only to have Plaintiff’s counsel misrepresent that no protocol ever had been agreed upon. Defense counsel claims such conduct alone warrants vacating this Court’s Decision and Order. The second alleged instance was on October 3, 2023, when counsel of record provided oral argument on the court record related to the instant motion and, more specifically, the prior court directives related to the iPhone disclosure. Counsel for the Moving Defendant contends that Plaintiff intentionally failed to inform this Court of essential facts including, amongst of things, that subsequent to the Zuckerman Decision issued in November 2022, there was unequivocal evidence from Wells Fargo that Defendants’ iPhones had not been used to make the beneficiary changes to the subject 401(k) account. (Id. at ¶22). Fourth, counsel argued that the Moving Defendants timely filed a Notice of Appeal and an Order to Show Cause on or about October 17, 2023, seeking leave to appeal and requesting the continuation of the trial court’s stay until such time as the Appellate Division could rule on the underlying merits of the appeal. Counsel contends that, by filing the Notice of Appeal and subsequently turning over complete images of the phones on October 24, 2023, there also was and continues to be an automatic stay in place pursuant to CPLR §5519(a)(4). The Appellate Division entered Defendants’ Order to Show Cause on or about October 18, 2023 and afforded Plaintiff time to file opposition papers by October 26, 2023 concerning the stay and the underlying merits of the appeal. Plaintiff filed her opposition papers. At the time of the Moving Defendants’ instant motion before this trial court, counsel stated that they are awaiting a ruling from the Appellate Division. Plaintiff’s Opposition: Plaintiff filed opposition to the Moving Defendants’ motion on the following grounds. First, Plaintiff contends that the Moving Defendants’ instant motion to strike or vacate prior court discovery order(s) related to the iPhones should be denied outright. Simply stated, Plaintiff argues that CPLR §5015(a)(1) is not a proper remedy for the Moving Defendants and their motion pursuant to CPLR §5015(a)(1) must be denied in all respects. In that regard, Plaintiff argue that the Quiñones September 7, 2023 Decision granted Plaintiff’s motion to strike Defendants’ Answer in a 6 6 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 conditional order dated September 7, 2023. Counsel states that the Moving Defendants did not move for reargument of Quiñones September 7, 2023 Decision, which Plaintiff argues became final when the stay ended on October 20, 2023, and Defendants failed to turn over their iPhones. Second, Plaintiff contends that the Moving Defendants are not entitled to vacatur of prior discovery order(s) pursuant to CPLR § 5015(a)(3) since there was no fraud, misrepresentation, or other misconduct attributable to Plaintiff and/or Plaintiff’s counsel. Plaintiff contends that the Moving Defendants offer nothing more than “broad, unsubstantiated allegations of fraud on the part of the Plaintiff or Plaintiff’s counsel, and thus the Moving Defendants’ motion should be denied in its entirety. Third, Plaintiff contends that discretionary vacatur pursuant to CPLR § 5015(a)(5) is not warranted under the circumstances presented. Counsel reiterates that the Moving Defendants did not appeal from Justice Quiñones’ September 7, 2023 Order, and accordingly such order should not be reversed, modified, or vacated. Fourth, Plaintiff submits that Plaintiff’s proposed judgment which, inter alia, strikes the Moving Defendants’ Answer for failure to turn over the iPhones. In that regard, counsel argues that the Quiñones’ September 7, 2023 Decision did not explicitly direct Plaintiff to file a Judgment with Notice of Settlement, Plaintiff e-filed a proposed Judgment and supporting Affirmation on NYSCEF on October 23, 2023. (NYSCEF Nos. 231-232). Counsel further argues that, after midnight on October 20, 2023, there was no stay of Justice Quiñones’ September 7, 2023 Order nor was there any stay in the Appellate Division, Second Department in effect. Moving Defendants never turned over their iPhones to Plaintiff’s counsel. Accordingly, Plaintiff contends that their proposed Judgment should be signed and entered in favor of Plaintiff. Decision: Defendants’ motion is premised upon the following three (3) subsections of CPLR §5015 entitled “Relief from judgment or order”: (1) CPLR § 5015(a)(1) provides, in part, that: “(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry.” 7 7 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 (2) CPLR § 5015(a)(3) provides, in part, that: “(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: …[subsection](3) fraud, misrepresentation, or other misconduct of an adverse party”. (3) CPLR § 5015(a)(5) provides, in part, that: “(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: … [subsection](5) reversal, modification or vacatur of a prior judgment or order upon which it is based.” As to Defendant’s CPLR § 5015(a)(1) arguments, such arguments are not available to the Defendants who have, for all intents and purposes, “appeared” on all prior motion practice related to the iPhone disclosure dispute. Specifically, Defendants, through counsel of record, previously filed opposition papers relative to Plaintiff’s prior motion to compel such iPhone disclosure of Defendants’ iPhones (Motion Seq. No. 2) which was adjudicated by the “Zuckerman Decision”. Defendants previously filed a motion for renewal of the Zuckerman Decision (Motion Seq. No. 4), including reply papers, which was adjudication by the “Quiñones September 7, 2023 Decision”. Defendants were also heard on such application at the October 3, 2023 court conference, which was adjudicated by the so-ordered transcript filed as NYSCEF Document No. 221. Lastly, Defendants also filed the instant motion, including reply papers, now for vacatur of the prior court directives. As to Defendant’s CPLR § 5015(a)(3) arguments, Defendants failed to establish the existence of any fraud or misrepresentation by Plaintiffs. Defendants’ contentions that a discovery production from Wells Fargo evinces that no 401K account changes were made via iPhone was previously presented and considered in connection with [Defendants’] Motion Seq No. 4 and [Plaintiff’s] Cross- Motion Seq. No. 5, both of which were adjudicated by the “Quinones September 7, 2023 Decision”. Defendants’ contention that the Plaintiff misrepresented the parties’ “stipulation” as to protocols for complying with the Zuckerman Order was also previously heard and considered at the October 3, 2023 court conference, which was adjudicated by the so-ordered transcript filed as NYSCEF Doc. No. 221 as well as the Quiñones October 16, 2023 Decision. Moreover, the emails amongst counsel related to the “stipulation” refute Defendants’ contention. Specifically, the February 22, 2023 email from Plaintiff’s counsel, in pertinent part, states that although counsel have circulated redlined copied of a proposed stipulation to set forth protocols for iPhone disclosure, “we have not been able to agree to the terms of that Stipulation.” (NYSCEF Doc. 218, page 2). The Quiñones October 16, 2023 Decision, in pertinent part, confirmed that no such stipulation has been executed. As to Defendant’s CPLR § 5015(a)(5) arguments, such relief is not warranted under the circumstances presented. Zuckerman Decision directed disclosure of the Defendants’ iPhones. The Quiñones September 7, 2023 Decision, in essence, enforced the Zuckerman Order with the additional 8 8 of 9 FILED: WESTCHESTER COUNTY CLERK 03/19/2024 03:27 PM INDEX NO. 64659/2021 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 03/19/2024 caveats that (i) the Defendants were granted an extension of time to comply with the prior disclosure directives set forth in the Zuckerman Order; (ii) any further failure to make such disclosure as directed would result in the Defendants’ Answer being stricken, and (iii) the Defendant’s oral application for a brief stay to file an appeal with a request for a temporary stay at the appellate court was granted to October 20, 2023. Defendants did not move for reargument of the Quiñones September 7, 2023 Decision, which became final when the stay ended on October 20, 2023, and Defendants failed to turn over their iPhones as previously directed in the Zuckerman Order, the deadline for production having been extended by the Quiñones September 7, 2023 Decision. (See Von Maack v. Wycoff Heights Med. Ctr., 195 A.D.3d 769, 771 [2d Dept. 2021][“where . . . a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute.”]). In short, Moving Defendants failed to comply with the iPhone disclosure directives set forth in the Zuckerman Order for over a year ago, without just cause. Moreover, the arguments now raised by the Moving Defendant (specifically, the existence of disclosure protocol agreement and need for a privilege log) were previously raised and considered in connection with prior motion practice and adjudicated in Plaintiff’s favor. Based on the foregoing, it is hereby ORDERED that, the Moving Defendants’ motion is DENIED. It is further ORDERED that, insofar as the Quiñones September 7, 2023 Decision extended the Moving Defendants’ timeframe to comply with the disclosure directive in the Zuckerman Order and stated that any further noncompliance shall result in such Moving Defendants’ Answer being stricken, and the Moving Defendants have not produced the replacement iPhones to Plaintiff’s counsel, over a year after the initial disclosure directive issued in the Zuckerman Order, the Moving Defendants’ Answer is hereby stricken. It is further ORDERED an inquest on damages as to the Moving Defendants shall occur at the trial of the instant action against the remaining defendants, or in the event that the instant matter shall not proceed to trial as against the remaining defendants, Plaintiff shall file a note of issue within thirty (30) days of any disposition of the claims against the remaining defendants and thereafter appear in the Trial Assignment Part (“TAP”) for the scheduling of an inquest on damages as to the Moving Defendants. It is further ORDERED that, as to the remaining named defendants, this matter will be scheduled for a virtual court conference by separate court notice(s) with Microsoft Teams conference link information issued by the Judge’s Part Clerk Anissa Robinson. The foregoing constitutes the Decision and Order of this Court. Dated: March 19, 2024 ENTER: White Plains, New York _________________________________ HON. THOMAS QUIÑONES, J.S.C. TO: Filed to NYSCEF 9 9 of 9