Y.K., Plaintiff, v. GBF RM (2026)

The following papers were considered on this motion: the Order to Show Cause (Motion Seq. No. 9) and supporting Affirmation of Steven M. Silpe, Esq., dated July 8, 2026, together with the exhibits annexed thereto; the Affirmation of Jessica H. Ressler, Esq., in Opposition, dated July 14, 2026; and the record of prior proceedings herein, including the correspondence of the parties dated June 29, 2026 and July 2, 2026, and this Court's Order dated July 2, 2026 granting Plaintiff leave to make the instant motion.

Plaintiff, Y.K. (hereinafter "Plaintiff"), moves, by Order to Show Cause made upon leave of this Court granted on July 2, 2026, pursuant to Civil Practice Law and Rules §§ 3101(a) and 3124, for an order compelling Defendant, Y.K. a/k/a Y.K. (hereinafter "Defendant"), to produce complete, unredacted copies of two pages of typed notes that Defendant read from and relied upon during his continued deposition on June 29, 2026. Defendant opposes the motion, contending that the redacted portions of the notes remain protected by the attorney-client privilege attaching to communications between Defendant and his Trusts and Estates counsel, and requests that, at a minimum, the Court conduct an in-camera review of the complete, unredacted notes before directing any further disclosure. For the reasons set forth below, the motion is granted.

BACKGROUND

This is a matrimonial action in which the equitable distribution of the parties' marital assets is at issue, including Plaintiff's claims concerning the ownership, structure, and cash flow of several trusts and related entities allegedly controlled or beneficially held by Defendant, namely Serious Dynamic LLC, CMA Equities Trust, LBA Capital Trust, RM Family CRUT, and Rockland NY Equities Trust.

On June 29, 2026, Defendant appeared virtually for his continued deposition from his home in Golden Beach, Florida. The deposition was recorded on video. During questioning, Plaintiff's counsel observed that Defendant appeared to be reading from two pages of typed notes in answering questions concerning, among other subjects: the purpose for which several trusts were formed; the scope of the work performed, and compensation arrangement, of Christian Martinez, Esq. in connection with efforts to market and sell Plaintiff's medical practice; the formation of Serious Dynamic LLC and LBA Capital Trust; the ownership and tax structure of the trusts; and the flow of funds among the trusts and entities. At Plaintiff's counsel's request, Defendant held the two pages up to the camera so that his reliance on the document would be recorded.

Defendant's counsel represents that she was not aware, prior to the deposition, that Defendant had reviewed or intended to rely upon any such notes, and that the notes were prepared by Defendant's Trusts and Estates counsel — not by her office — in connection with the creation and administration of the trusts referenced above. During the lunch recess, Defendant's counsel provided Plaintiff's counsel with a redacted copy of the two pages.

The unredacted portions produced describe, among other things, the commission-based arrangement under which Christian Martinez, Esq. worked to locate a purchaser for Plaintiff's medical practice, and a step-by-step description of the flow of funds among Serious Dynamic LLC, CMA Equities Trust, LBA Capital Trust, RM Family CRUT, and Rockland NY Equities Trust. The redacted portions — appearing under headings including "Why the Structure Was Created," "Why Serious Dynamic LLC Was Used," "Ownership and Tax Flow," and "Creation of LBA Capital Trust" — were withheld on the ground that they reflect privileged communications, impressions, and legal advice exchanged between Defendant and his Trusts and Estates counsel.

By letter dated June 29, 2026, Defendant's counsel advised the Court that she was not authorized to waive her client's privilege as to the redacted portions. By letter dated July 2, 2026, Plaintiff's counsel requested a conference to address, among other things, Defendant's continued assertion of privilege over the redacted notes. By Order dated July 2, 2026, the Court granted Plaintiff leave to move to compel production of the unredacted notes. This motion, and Defendant's opposition, followed.

Plaintiff argues that Defendant waived any privilege that might otherwise have attached to the notes the moment he read from them to refresh his recollection while testifying, regardless of which attorney prepared the notes or whether Defendant's litigation counsel had prior knowledge of them. Plaintiff relies principally on Doxtator v Swarthout, 38 AD2d 782 [4th Dept 1972], and Banks v Marc Mordecai Liechtung, DMD, P.C., 2022 NY Slip Op 30715(U) [Sup Ct, NY County 2022], for the proposition that material used by a witness to refresh recollection during testimony becomes material affirmatively used in the litigation and is therefore subject to inspection by the adversary so that a meaningful examination may be conducted. Plaintiff contends that it is Defendant's own conduct — not any act of his Trusts and Estates counsel — that effected the waiver, and that Plaintiff is entitled to the complete, unredacted notes and, if warranted upon review, a further limited deposition of Defendant.

Defendant does not dispute that his use of the notes at the deposition brings the document within the scope of material subject to disclosure in some form. Defendant argues, however, that the redacted passages contain more than "black and white facts," and instead reflect confidential impressions, thoughts, and legal advice exchanged between Defendant and his Trusts and Estates counsel. Defendant contends that the authority relied upon by Plaintiff is factually distinguishable because, in each of those cases, the withheld material was directly at the heart of the underlying claim, whereas here the notes were generated in a separate attorney-client relationship concerning the creation and administration of the trusts, and were not prepared for or in connection with this litigation. Defendant urges that ordering wholesale production would prejudice him without corresponding benefit to Plaintiff, and requests, at a minimum, that the Court review the unredacted notes in camera before directing disclosure.

DISCUSSION

A. Applicable Legal Standard

Civil Practice Law and Rules § 3101(a) directs full disclosure of all matter material and necessary in the prosecution or defense of an action. Civil Practice Law and Rules § 3124 authorizes a motion to compel compliance with a disclosure demand where a party has failed to respond or comply. Material otherwise shielded by the attorney-client privilege is not "material and necessary" within the meaning of Civil Practice Law and Rules § 3101(a) unless and until the privilege has been waived.

B. The Refreshing-Recollection Doctrine and Its Inspection Right

Guide to New York Evidence rule 6.09(2) provides that if a witness, while testifying, uses a writing to refresh recollection, the adverse party is entitled to inspect the writing and to cross- examine the witness about it. This rule has long been the law of this State. See Doxtator v Swarthout, 38 AD2d 782 [4th Dept 1972]; See also People v Gezzo, 307 NY 385 [1954]. The rationale is one of basic fairness: a party is entitled to test whether a witness's testimony reflects the witness's own recollection or has instead been shaped by the contents of a writing the witness reviewed, and to be protected against testimony refreshed by a document opposing counsel has had no opportunity to examine.

Neither Gezzo nor any other seminal decision of the Court of Appeals adopting and applying the refreshing-recollection doctrine's inspection right has addressed the distinct question presented here: whether the use of an otherwise privileged writing to refresh recollection effects a waiver of the privilege itself, as opposed to the bare right of inspection.

C. McDonough v Pinsley Controls the Scope of Defendant's Waiver

New York courts have not always agreed on this question. Two early, non-precedential trial-level decisions — Falk v Kalt, 44 Misc 2d 172 [Sup Ct, Suffolk County 1964], and Matter of Van Gorder's Will, 10 Misc 2d 648 [Surr Ct, Westchester County 1957] — held that the sanctity of the attorney-client privilege limited an adversary's right to inspect a writing used to refresh recollection and denied inspection on that basis.

That view did not endure. As the Civil Court of the City of New York observed in declining to follow those two decisions, neither Falk nor Van Gorder's Will "appears to have served as the basis for any subsequent court decisions," and the weight of authority instead requires disclosure once a privileged writing has been used to refresh recollection. See E.R. Carpenter Co. v ABC Carpet Co., 98 Misc 2d 1091, 1093 [Civ Ct, NY County 1979].

The Appellate Division, Second Department, later confirmed that the privilege does not survive such use, holding in Grieco v Cunningham, 128 AD2d 502 [2d Dept 1987], that any privilege otherwise protecting a writing is waived once a party uses it to refresh recollection in giving testimony.

Neither Grieco nor any later decision of this Department has addressed the more specific question raised by Defendant on this motion: once the privilege is waived, is the adversary entitled to inspect only those portions of the writing the witness is shown to have actually consulted, or the writing in its entirety? That precise question was squarely presented to, and resolved by, the Appellate Division, First Department, in McDonough v Pinsley, 239 AD2d 109 [1st Dept 1997].

There, as here, the party opposing disclosure took the position that the adversary had already received the relevant portion of the document and was entitled to no more. The First Department rejected that position, holding that any privilege protecting the document was waived when the witness used it to refresh his recollection at his deposition, and that the adversary "is entitled to inspect the entire document." Id. at 109.¹

The Court of Appeals has not addressed this precise question in any of its seminal decisions adopting and applying the refreshing-recollection doctrine's inspection right, and this Department has not decided it either. Where neither the Court of Appeals nor the Appellate Division of this Department has ruled on a point of law, a trial court sitting within this Department must follow the controlling, on-point decision of a sister Department. See Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984]. This Court accordingly follows McDonough as controlling authority on the scope of the waiver at issue on this motion.

Although McDonough did not frame its holding in terms of the attorney-client privilege specifically, this Court notes that its approach is consistent with, and finds further support in, the treatment of the analogous rule under Fed. R. Evid. 612 and the federal case law construing it. Where a writing is used to refresh a witness's recollection while testifying, courts applying Rule 612 have with substantial uniformity held that whatever protection the attorney-client privilege or the work-product doctrine might otherwise have afforded that writing is lost — a loss of protection that, as to work product, may extend even to a lawyer's core opinion work product. As one leading treatise summarizes the state of the federal authority, it is widely recognized that a witness's use of a document to refresh recollection on the stand defeats a claim of attorney-client privilege by the party calling the witness and defeats a claim of work-product protection by counsel as well. See 3 Mueller & Kirkpatrick, Federal Evidence § 6:93, at 601 [4th ed]. The basis for that conclusion, as these authorities explain, is that the right of inspection and use that Rule 612 recognizes with respect to a writing used while the witness is testifying is treated as effectively absolute.

D. Application

This case presents, in material respects, the same posture as McDonough. Defendant does not deny that he read from, and answered deposition questions by reference to, two pages of typed notes during his June 29, 2026, deposition. Indeed, he held the pages up to the camera at Plaintiff's counsel's request so that his reliance on the document would be recorded. Nor does Defendant dispute that he answered questions concerning the purpose of the trust structure, the work and compensation of Christian Martinez, Esq., the formation of Serious Dynamic LLC and LBA Capital Trust, the tax and ownership structure of the trusts, and the flow of funds among them — subjects that correspond to each of the numbered sections of the two-page document, both those produced and those withheld. And, as in McDonough, Defendant's position is, in substance, that Plaintiff has already been given the relevant portion of the document and is entitled to no more. Defendant's own submission acknowledges that reliance upon the notes during testimony brings the document within the scope of discoverable material.

Defendant's argument that the privilege survives because the notes were prepared by his Trusts and Estates counsel, rather than by his matrimonial counsel, does not withstand scrutiny. The attorney-client privilege belongs to the client, not to any specific attorney, and it is the client's own conduct — here, Defendant's decision to review and read from the notes while testifying — that effects the waiver. Which of Defendant's attorneys authored the document, and whether Defendant's litigation counsel had advance knowledge that he intended to rely on it, do not bear on whether Defendant himself waived his own privilege by that reliance.

Defendant's remaining argument — that the withheld portions should nonetheless be shielded because they reflect counsel's impressions and legal advice rather than "black and white facts" — is the same argument McDonough rejected. The concern animating the refreshing- recollection doctrine — that an adversary have a genuine opportunity to test, through inspection and cross-examination, whether and how a witness's testimony was shaped by a writing — is not satisfied by a rule permitting the witness, through counsel, to decide unilaterally which portions of the very document he read from during testimony were relevant enough to disclose. Under McDonough, that determination belongs to Plaintiff's counsel in preparing cross-examination, not to Defendant's counsel in the first instance by redaction. Nor is in camera review the appropriate mechanism on this record: McDonough forecloses exactly the portion-by-portion, relevance-based screening that in camera review would entail once the predicate use to refresh recollection has been established, and the notes at issue here are a single, two-page writing that Defendant, by his own counsel's admission, referred to across the full range of subjects the document addresses.

The Court concludes that Defendant waived any attorney-client privilege that might otherwise have attached to the two pages of notes he used to refresh his recollection during his June 29, 2026, deposition, and that, under McDonough, Plaintiff is entitled to production of those notes in their complete and unredacted form.

Accordingly, it is hereby

ORDERED, that Plaintiff's motion to compel is GRANTED; and it is further

ORDERED, that, within ten (10) days of service of this Decision and Order with notice of entry, Defendant shall produce to Plaintiff's counsel complete, unredacted copies of the two pages of typed notes referred to and relied upon by Defendant during his June 29, 2026 deposition; and it is further

ORDERED, that Plaintiff may, upon review of the unredacted notes, apply to continue Defendant's deposition on a limited basis, restricted to the subject matter of the previously redacted portions of the notes, without prejudice to Defendant's right to be heard in opposition to the scope of any such continued examination.

This constitutes the Decision and Order of the Court as to Motion Seq. No. 9.

Dated: July 22, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C.

FOOTNOTES

1.   The Court is cognizant that a later decision of the First Department, Beach v Touradji Capital Mgt., LP, 99 AD3d 167, 171 [1st Dept 2012], declined to find a waiver of the attorney work-product privilege. Beach, however, concerned only the work-product doctrine, not the attorney-client privilege. Defendant's claim of privilege here is expressly grounded in the attorney-client privilege attaching to communications between Defendant and his Trusts and Estates counsel, not in work product. Beach therefore neither conflicts with nor affects the disposition of this motion.

John P. Collins, Jr., J.