WEINSTEIN v. WEINSTEIN BRISMAN

Filing 57

OPINION. Signed by Magistrate Judge Michael A. Hammer on 3/26/2020. (bt, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
RICHARD WEINSTEIN,
:
:
Civil Action No. 18-3910 (KM) (MAH)
Plaintiff,
:
:
v.
:
:
VIVIAN WEINSTEIN BRISMAN,
:
:
OPINION
Defendant.
:
___________________________________ :
I.

INTRODUCTION
This civil action instituted by Plaintiff Richard Weinstein against his sister Defendant

Vivian Weinstein Brisman concerns allegedly defamatory remarks made by Defendant regarding
Plaintiff’s theft of valuable artwork. See Compl. ¶¶ 2, 8, 13, 19, 25, Mar. 21, 2018, D.E. 1. At
issue here are jointly served subpoenas on Lloyd De Vos, Esq. and Ann Pincus Berman, Esq. (the
“Nonparties”) seeking deposition testimony and the production of documents predominately
concerning the affairs of two Curacao private foundations that were organized to provide care to
the parties’ brother and their mother prior to her death. See Decl. of Robert C. Brady in Supp. of
Nonparties’ Mot. to Quash Pl. and Def.’s Jointly-Served Subpoenas (“Brady Decl.”), Ex. A, Oct.
23, 2019, D.E. 41-2; Cert. of Lloyd De Vos in Supp. of Nonparties’ Mot. to Quash Pl. and Def.’s
Jointly-Served Subpoenas (“De Vos Cert.”) Ex. A, Oct. 23, 2019, D.E. 41-3.
The Nonparties have moved to quash the subpoenas on the grounds that they seek irrelevant
and privileged information and are unduly burdensome. See Mem. of Law in Supp. of Nonparties’
Mot. to Quash Pl. and Def.’s Jointly-Served Subpoenas at 1-2, Oct. 23, 2019, D.E. 41-1. The
Court has considered the parties’ submissions and held oral argument on March 25, 2020. For the
reasons that follow, the Nonparties’ Motion is granted in part and denied in part.
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II.

BACKGROUND
Plaintiff holds himself out as a “passionate art collector” who has bought and consigned

art with the assistance of Christie’s Auction House in New York City. Compl. ¶¶ 15-16. In the
beginning of 2018, Plaintiff was negotiating the sale of several high value paintings when he was
provided with unfavorable terms to consummate the transaction. Id. ¶¶ 17-18. According to
Plaintiff,
Plaintiff questioned a Christie’s employee as to why he was
receiving such unfavorable terms for his valuable artwork. Plaintiff
was informed that Christie’s had been contacted by Defendant by
mail and Defendant had falsely informed Christie’s that Plaintiff had
stolen works of art from his mother. This false information caused
Christie’s to question doing business with Plaintiff and caused
Christie’s to only proceed with doing business with Plaintiff on
terms that are very favorable to Christie’s, and unfavorable to
Plaintiff.
Id. ¶ 19. Plaintiff denies having stolen art from his mother and alleges that “Defendant’s false and
defamatory statements have greatly damaged Plaintiff’s reputation and has impeded his ability to
consign for sale his art collection under favorable terms and has negatively affected the value of
his property.” Id. ¶ 23. Separate from the communications to Christie’s, Plaintiff further alleges
that Defendant has accused him of stealing property from their father in addition to committing
other unspecified “shameful” acts. See id. ¶¶ 13-14, 25.
By way of a Complaint filed on March 21, 2018, Plaintiff seeks damages and injunctive
relief in connection with a defamation claim and tortious interference claim. See id. ¶¶ 24-38. In
her Amended Answer, Defendant avers, among other things, that the alleged defamatory
statements were true. See Am. Answer, Fourth Affirmative Defense, Sept. 14, 2018, D.E. 10. By
way of rebuttal, Plaintiff contends that Defendant’s statements are in fact false because “[his]
siblings, including Defendant, and mother . . . , agreed to reimburse [him] for certain care

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expenses—including through the sale of works of art, which are at issue in this action.” 1 Decl. of
Richard Weinstein in Opp. to Mot. to Quash Subpoenas (“Pl. Decl.”) ¶ 4, Nov. 18, 2019, D.E. 461.
As the pleadings and filings submitted in support of and in opposition to the Motion to
Quash reveal, the instant civil action appears to be part of an ongoing saga concerning
disagreements among the Weinstein children pertaining to the care of certain family members and
control over valuable assets. The parties, along with their two siblings, Larry and Stephen
Weinstein, were born in Lima, Peru. See Compl. ¶ 8; De Vos Cert. ¶ 4. Plaintiff continues to
reside in Lima where he assisted taking care of Larry, who has significant special needs, and his
parents until their respective deaths. See Compl. ¶¶ 10, 12; Pl.’s Decl. ¶¶ 3-4. Richard, Vivian,
and Steven’s relationship soured over the years based on disagreements over their respective
contributions towards the care of their parents and Larry, and how to divide up the familial assets
upon their parents’ deaths. See Compl. ¶¶ 11-14; Pl.’s Decl. ¶¶ 3-4, 8.
Two private foundations established in Curacao—which are not referenced at all in the
Complaint and are the target of the subpoenas at issue—maintain certain assets for the care of
Larry and certain assets originating from the parties’ mother, Aida Brodsky Tabac. See De Vos
Cert. ¶¶ 5-6. The Foundations own their respective assets, which are managed pursuant to the
terms of Trust Management Agreements (“TMA”). Id. ¶ 8; see also Decl. of Jennifer Katz in Opp.
to Nonparties’ Mot. to Quash (“Katz Decl.”), Ex. 3 ¶ 2, Nov. 18, 2019, D.E. 45-1. More

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Plaintiff, Defendant, and the Nonparties all reference in their briefing a power of attorney and
contract that gave Plaintiff the right to sell the artwork and keep the proceeds. See Def.’s Mem.
of Law in Opp. to Nonparties’ Mot. to Quash at 2, 7, Nov. 18, 2019, D.E. 45; Pl.’s Mem. of Law
in Opp. to Nonparties’ Mot. to Quash at 1-2, Nov. 18, 2019, D.E. 46; Nonparties’ Reply Mem. of
Law in Supp. of Mot. to Quash at 1, 6, Dec. 9, 2019, D.E. 50. However, those putative documents
are not referenced in any party’s declarations or certifications submitted in conjunction with the
Motion to Quash.
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specifically, the Raglos Private Foundation (“Raglos”) “was established to hold, invest and
administer the funds paid in a legal settlement to ensure that Larry would have care for the rest of
his life.” De Vos Cert. ¶ 5. “The only person entitled to receive funds from Raglos during Larry’s
lifetime is Larry.” Id. ¶ 12.
The Abacat Private Foundation (“Abacat”) was established “to provide for [Mrs. Brodsky]
during her life and thereafter to provide for members of her family thereafter under the provisions
contained [in the TMA].” Katz Decl., Ex. 3 ¶ A; see also De Vos Cert. ¶¶ 6, 13. The discretion
to manage and distribute the assets belongs solely to Abacat. See Katz Decl., Ex. 3 ¶¶ 1-3.
Presently, Ms. Berman and St. Thomas Corporation Company, whose president is Mr. De Vos,
serve as the directors of Abacat and Raglos. See De Vos Cert. ¶ 10. Additionally, Mr. De Vos
served as Mrs. Brodsky’s legal counsel from 2005 until 2017. Id. ¶ 3. Mr. De Vos is licensed to
practice law in New Jersey and consults with separate counsel from Curacaco, where he does not
maintain a license to practice. See id. ¶¶ 1, 11.
The longstanding animosity among the siblings “is one of the reasons why Raglos and
Abacat were originally established.” Id. ¶ 17. The siblings have made repeated efforts to obtain
information regarding Raglos and Abacat. Id. ¶ 20. The sole occasion on which the Foundations
complied with the siblings’ requests was when Mrs. Brodsky became unable to continue to care
for herself. Id. ¶ 21.
At that time, the Foundation[s] provide[d] public deeds of
incorporation and the current TMA in effect for each of Raglos and
Abacat to inform the Plaintiff, Defendant and Steven that they were
not entitled to receive distributions from either foundation. The
Foundations also provided two years worth of Abacat bank
statements in an attempt to quell unsubstantiated allegations of
impropriety.

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Id. Mrs. Brodsky passed away on January 30, 2019. Id. ¶ 3. Following her death, “Abacat has
attempted to reach an agreement with her children regarding the distribution of assets to each of
them.” Id. ¶ 16. Mr. De Vos has been unable to reach an amicable arrangement with the parties
and Steven regarding the division of Abacat’s assets. Id. Additionally,
[b]oth Plaintiff and Defendant have each wanted to take control over
the assets of the Foundations, both before and after the death of Mrs.
Brodsky. Both before and after Mrs. Brodsky’s death, the
Foundations have denied requests by each of Plaintiff and
Defendant to turn over all assets of the Foundations to them,
individually.
Id. ¶ 18.
According to Plaintiff, he has had “many discussions and correspondences with De Vos
and Berman concerning [him] being reimbursed, from both Raglos and Abacat, for expenses [he]
advanced” for the care of his parents and Larry. Pl.’s Decl. ¶ 5. Indeed, the Abacat TMA
acknowledges that Mrs. Brodsky sought to settle any “intra-family debts among Richard, Steven,
and Vivian” prior to the distribution of Abacat’s assets. Katz Decl., Ex. 3 ¶ 6. The TMA prescribes
that “[i]f the Foundation . . . determine[s] that there are any intra-family debts between Richard,
Steven, and Vivian, it shall adjust the shares allocated to each of them to reflect its determination.”
Id. Although that specific determination is not subject to challenge by the children, see id., the
TMA further provides that “[t]he Foundation shall consult with each of Richard, Steven and Vivian
concerning the distribution of the amounts allocated to them as finally determined,” id. ¶ 9.
In addition to setting forth the background of the Foundations and familial disputes,
Plaintiff and Mr. De Vos’s declarations also provide their respective views on the relevance of the
targeted documents to the claims at issue. Mr. De Vos avers that
[t]his subpoena has nothing to do with the allegations in this case.
Apparently Plaintiff and Defendant are attempting to use the process
of this Court to compel [him] to not follow the requirements of
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Curacao law, the law that governs the obligations under Raglos and
Abacat, even though the subject matter of the subpoenas have
nothing to do [with] this action. It is a continuation of the efforts of
each of the [parties] to obtain the assets of Raglos and Abacat and
convert the assets to their own personal use.
De Vos Cert. ¶ 22. With respect to Curacao law, Mr. De Vos attests that he has been advised that
non-beneficiaries have “no legal right to information, documents or knowledge about the operation
of the foundations,” and that “it may be a violation of law to provide any such information to a
person who is only potentially entitled to a receive a distribution from a Curacao private
foundation.” Id. ¶ 11. Finally, Mr. De Vos submits that compliance with the subpoena will require
him to review fourteen years of documents for relevance and privilege given that he served as Mrs.
Brodsky’s attorney during the relevant time period. Id. ¶ 23. He estimates that it will cost at least
$24,000 to complete his review of the document at his suggested billing rate. Id.
Plaintiff submits that “Defendant has made the issue of reimbursement, loans and funds
coming to and from the Raglos and Abacat foundations or [his] mother an issue in this action.”
Pl.’s Decl. ¶ 6. Plaintiff also points out that the Nonparties have acknowledged the putative
defamatory statements made by Defendant in an email dated March 1, 2018, id. ¶ 8, and that De
Vos has acknowledged the alleged debts in an email dated December 17, 2016, id. ¶ 7. As for the
Foundations’ records, Plaintiff attests that he “do[es] not have a complete and full accounting of
these financial transactions and . . . that the individuals most likely to possess the complete (and
possibly only) set of related documents and information are De Vos and Berman.” Id. ¶ 6. Thus,
Plaintiff continues, “a response to the subpoenas at issue is the only way that the parties to this
action will get a full accounting of the finances of the foundations.” Id.
Plaintiff also raises the issue of about the final distribution of Abacat’s assets. See id. ¶¶
9-13. Plaintiff notes that they received a letter from the Nonparties dated April 16, 2019,

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requesting that the Weinstein children executed a general release and indemnification agreement
prior to receipt of their respective funds. See id. ¶ 9. Plaintiff attests that
[u]pon receiving this letter, [he] requested that the Nonparties
provid[e] an accounting of the foundations so that [the] siblings
could make informed decisions as to whether or not a release should
be provided. Nonparties refused to provide an accounting or any
detailed information regarding the disbursements of the foundations.
There was no dispute as to the apportionment of the assets of Abacat
to [his] knowledge, as Nonparties now contend in their motion
papers. The assets of Abacat remain undistributed due to
Nonparties’ refusal to distribute the assets without a general release
and indemnification from [the parties and Steven].
Id. ¶ 11; see also Pl.’s Mem. of Law at 4-5. With respect to Abacat’s funds, Plaintiff submits that
he has only sought to be reimbursed for expenses related to his mother during her lifetime and that
he is currently entitled to a distribution. Pl.’s Decl. ¶ 12. Finally, Plaintiff notes that his attempted
removal of the Nonparties was at the direction of his mother and that the money expended in that
attempt are relevant to this action insofar as he sought reimbursement for his efforts. Id. ¶ 13.
III.

ANALYSIS
The subpoenas at issue seek fifty-six categories of documents. The majority of the

categories concern the financial affairs of Abacat, Raglos, and affiliated entities. 2 Specifically, the
subpoenas seek documents pertaining to all financial transactions, financial statements, audit files,
and formation and management agreements of the various entities, as well as Abacat’s
distributions to the siblings. See Brady Decl., Ex. A ¶¶ 1-25, 35. The next two categories, along

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The subpoenas also target documents from Whole Wheat LLC, Caritas United, and Solgar
Corporation. See generally Brady Decl., Ex A. Solgar Ltd. was the original signatory to Abacat’s
TMA, which “at the time held Mrs. Brodsky’s non-Peruvian assets.” De Vos Cert. ¶ 9. Whole
Wheat LLC is the “legal successor to Solgar Corp.” and was the signatory to Abacat’s amended
TMA. Katz Decl., Ex. 3. “Raglos established Caritas United S.A. . . . to have funds in Peru to pay
for Larry’s care and Mrs. Brodsky’s needs” when Mrs. Brodsky became unable to care for herself.
De Vos Cert. ¶ 14. The subpoenas also seek documents concerning the entity DUCAT, which is
neither identified in the pleadings nor parties’ submissions. See Brady Decl., Ex. A ¶¶ 47-48.
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with the final category, appear to be catch-all provisions; they target “[a]ll Documents concerning
Abacat,” id. ¶ 26, “[a]ll Documents concerning Raglos,” id. ¶ 27, and “[a]ll documents relating to
this Litigation.” Id. ¶ 56. The categories that follow seek “[a]ll communications (including
Documents) between” the Nonparties and various family members regarding the disposition of
Mrs. Brodsky’s assets, Abacat’s debts, and the siblings and entities generally. Id. ¶¶ 28-32, 47.
The subpoenas then request all documents concerning the Nonparties’ compensation and their
assertions that Mrs. Brodsky acted under duress. Id. ¶¶ 33-34. The subpoenas further request “all
Documents concerning [Plaintiff’s] alleged unauthorized use of, conversion or theft of property
from Mrs. Brodsky,” id. ¶ 36; and “[a]ll Documents concerning the transfer of ownership,
possession, and/or sale of [Mrs. Brodsky’s] artwork to” her children, id. ¶¶ 37-40. The next six
categories pertain to transfer of real property and certain specific real estate transactions. Id. ¶ 4146. Categories Forty-Nine and Fifty seek “[a]ll Documents concerning the transfer” of money and
property from Mrs. Brodsky to the four children. Id. ¶¶ 49-50. Finally, Categories Fifty-One
through Fifty-Five concern “[a]ll documents concerning loans” to the four children and Mrs.
Brodsky. Id. ¶¶ 51-55.
On a timely motion, 3 a court must quash or modify a subpoena that subjects a person to
undue burden or requires the disclosure of privileged or protected information in the absence of an

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The Nonparties were served with the subpoenas on August 10, 2019, and August 21, 2019, with
return dates of August 27, 2019, and August 28, 2019, respectively. See De Vos Cert., Ex. A (De
Vos Subpoena); Brady Decl., Ex A (Pinciss Subpoena). The Nonparties aver that they met and
conferred with the parties regarding the subpoenas and that the parties’ refusal to withdraw the
subpoenas prompted the filing of this Motion to Quash on October 23, 2019. See Mem. of Law at
5. Generally, counsel must move to quash before the subpoena’s return date. See Toole v.
Cordovani, No. 13-6720, 2014 WL 132002, at *2 (D.N.J. Jan. 2014); Innomed Labs, LLC v. Alza
Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (“[I]t is reasonable to assume that the motion to quash
should be brought before the noticed date of the scheduled deposition.”). The Court excuses the
delay for four reasons: (1) the subpoenas, which were served approximately two weeks and one
week before the return date, did not provide a reasonable time to comply given the breadth of the
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applicable exception or waiver. Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). The party seeking to quash
or modify a subpoena must demonstrate that Rule 45’s requirements are satisfied. Strike 3
Holdings, LLC v. Doe, No. 18-16593, 2019 WL 4745360, at *3 (D.N.J. Sept. 30, 2019). “An
undue burden exists when ‘the subpoena is unreasonable or oppressive.’” Id. at *5 (quoting In re
Lazaridis, 865 F. Supp. 2d 521, 524 (D.N.J. 2011). Courts consider the following factors to
determine the reasonableness of a subpoena:
(1) the party’s need for the production; (2) the nature and importance
of the litigation; (3) the relevance of the material; (4) the breadth of
the request for production; (5) the time period covered by the
request; (6) the particularity with which the documents are
described; and (7) the burden imposed on the subpoenaed party.
Id. (quoting In re Lazardis, 865 F. Supp. 2d at 524).
In addition, “[d]iscovery sought via subpoena issued pursuant to Rule 45 must fall within
the scope of discovery permissible under Rule 26(b).” Conforti v. St. Joseph’s Healthcare Sys.,
Inc., No. 17-50, 2019 WL 3847994, at *2 (D.N.J. Aug. 15, 2019) (quoting Gov’t Employees Ins.
Co. v. Trnovski, No. 16-4662, 2018 WL 5281424, at *2 (D.N.J. Oct. 23, 2018)). Rule 26(b)(1)
prescribes the scope and limits of discovery:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.

requests that involving the production of financial records and communications concerning foreign
entities, cf. Fed. R. Civ. P. 45(d)(3)(A)(i); (2) the decision to consider an untimely motion falls
within the Court’s discretion, see Nike, Inc. v. Wu, 349 F. Supp. 3d 310, 320 (S.D.N.Y. 2018); (3)
the Nonparties attempted to meet and confer regarding the subpoenas; and (4) neither Plaintiff nor
Defendant raises the issue of timeliness.
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See also Fed. R. Civ. P. 26(b)(2)(c) (demanding that “the court must limit the frequency or extent
of discovery” if “the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less expensive” or
“is outside the scope permitted by Rule 26(b)(1)”). “Generally, courts afford greater protection to
non-parties in discovery, and nonparty subpoenas must meet a higher standard of relevance than
subpoenas directed toward parties.” Conforti, 2019 WL 3847994, at *2; accord Stamy v. Packer,
138 F.R.D. 412, 419 (D.N.J. 1990).
The Nonparties assert that the subpoenas “should be quashed because they are unduly
burdensome . . . and will not reasonably result in the production of evidence relevant to the claims
set forth in this case.” Nonparties’ Mem. of Law at 5. The Court agrees in part. Setting aside the
familial history that likely spurred the filing of this lawsuit, the crux of this civil action is whether
Defendant’s communications to employees of Christie’s auction house in the beginning of 2018
regarding Plaintiff’s theft of artwork are tantamount to defamation and tortious interference with
a prospective business relationship. See Compl. ¶¶ 24-35. Subsumed in the Complaint is
Plaintiff’s further allegation that Defendant also made defamatory comments to the Nonparties
regarding certain unspecified “shameful” conduct. See id. ¶¶ 13-14, 25. Defendant contests the
defamation claims by asserting that her statements were in fact true. With that backdrop in mind,
the Court first assesses the relevancy of the material sought before turning to the proportionality
of the discovery relative to the parties’ needs, among other considerations.
1. Relevance
The Court finds that the categories that pertain to expenses, loans, and other transactions
involving Plaintiff may be relevant as to whether Plaintiff legitimately acquired the artwork in
exchange for settlement of his debts. The parties may need discovery pertaining to Plaintiff’s

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financial history with his mother in order to resolve the defamation claim; that is, whether Plaintiff
received the artwork as reimbursement for past expenses, or purloined it. Plaintiff attests that he
was reimbursed through Abacat and Raglos directly, which renders those transactions relevant.
See Pl.’s Decl. ¶¶ 4-5. The Court also notes that Plaintiff has alleged that Defendant made
defamatory remarks directly to the Nonparties, which places those communications in issue. See
id. ¶ 8; Compl. ¶¶ 13-14.
Whether Plaintiff stole art from Mrs. Brodsky is a fact in issue; what is not in issue, and is
therefore irrelevant, are the categories seeking all documents pertaining to the Foundations and the
other entities’ financial transactions, financial statements, audit files, formation and management
agreements. See Katz Decl., Ex. A ¶¶ 1-25, 48. The Court also finds the Nonparties’ compensation
to be irrelevant to the claims in issue. See id. ¶ 34. In short, it is unclear to the Court why the
parties need the Foundations’ formation and financial documents to prove or defend against the
defamation and tortious interference claims in this case. Indeed, the parties concede that they seek
the Foundations’ documents in part to confirm whether they will execute a general release and
indemnification agreement in favor of the Nonparties in order to receive their distributions from
Abacat. See Pl.’s Decl. ¶¶ 10-11.
Similarly, the parties do not need any discovery pertaining to financial transactions
involving the other siblings. For example, it is irrelevant whether “a loan was made to Defendant
through the financing of [Mrs. Brodsky] and Larry’s assets,” Pl.’s Decl. ¶ 6, or whether Plaintiff
is owed money from siblings directly, see id. ¶ 7. Neither Plaintiff nor Defendant has explained
how those records are relevant, even under the most indulgent reading of Rule 26, to whether
Plaintiff legitimately acquired the artwork in exchange for settlement of his debts. All documents
pertaining to transfers of property or real estate and to loans to or from Vivian, Steven, and Larry

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have no probative value as to whether Richard stole artwork from his mother. See Katz Decl., Ex.
A ¶¶ 44-46, 49(b)-(d), 50(b)-(d), 52-55. The Court will also quash the catch-all requests as overly
broad. See id. ¶¶ 26-27, 56.
To recapitulate, the relevant communications and documents include any loans to Plaintiff,
debts owed to Plaintiff by the Foundations on behalf of the parties’ mother, all distributions to date
to Plaintiff from Foundations, all documents concerning the transfer of artwork to the children, all
documents pertaining to the transfer of money or property to Plaintiff, all documents concerning
Plaintiff’s real property transactions, and all communications between Defendant and the
Nonparties concerning Plaintiff. The relevant categories are Categories Twenty-Eight through
Thirty-One but limited only to the debts owed to Plaintiff and the disposition of assets as to him;
Category Thirty-Two but limited only to communications concerning Plaintiff; Category ThirtyThree; Category Thirty-Five (a); Categories Thirty-Six through Forty-Three; Category Forty-Nine
(a); Category Fifty (a); and Category Fifty-One. Finally, the Court finds Category Forty-Seven
relevant insofar as it pertains to the Nonparties’ communications concerning Plaintiff.
2. Undue Burden and Proportionality
As to the hardship imposed on the Nonparties in conjunction with the categories of
documents that the Court has identified as relevant, the Court finds the narrowed universe of
documents does not impose an undue burden on the Nonparties in proportion to Plaintiff and
Defendant’s need for the discovery. The Court nonetheless expects the parties to meet and confer
regarding the most cost and time effective way for the Nonparties to comply with the parts of the
subpoena that survive scrutiny.
Finally, the Court rejects the Nonparties’ assertion of privilege. In order to withhold
information based on a claim of privilege, Rule 45(e)(2)(A) expressly mandates that the proponent

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of the privilege must “(i) expressly make the claim; and (ii) describe the nature of the withheld
documents, communications, or tangible things in a manner that, without revealing information
itself privileged or protected, will enable the parties to assess the claim.” Fed. R. Civ. P.
45(e)(2)(A)(i)-(ii). The Court finds that the Nonparties have not described the nature of the
documents subject to any putative privilege with sufficient specificity to allow this Court to rule
on that objection to the production to those documents. Although Mr. De Vos served as Mrs.
Brodsky’s attorney for certain legal matters, counsel for the Nonparties clarified at oral argument
that Mr. De Vos did not act in a legal capacity with respect to the administration of the trusts. In
responding to the subpoenas, the Nonparties may assert privilege over the documents they seek to
withhold from production in conjunction with the preparation of a sufficient privilege log.
The same holds true with respect to the Nonparties’ assertion of Curacao law forbidding
any discovery regarding the Foundations. The Nonparties have only provided this Court with
broadest level of generality as to the workings of a Curacao private foundation. If the production
of particular documents would place the Nonparties at risk of violating some foreign law, they
may so indicate by way of a timely written objection to the modified subpoena.
IV.

CONCLUSION
For the reasons stated herein, non-parties Lloyd De Vos, Esq. and Ann Pincus Berman,

Esq.’s Motion to Quash Plaintiff and Defendant’s Jointly Served Subpoenas is granted in part and
denied in part. An appropriate order will follow.
s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE
Dated: March 26, 2020

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