Knopf et al v. Esposito et al
Filing
384
MEMORANDUM OPINION AND ORDER: In a letter of February 15, 2021, the plaintiffs move to compel non-party attorney Matt Bronfman to produce communications between himself and his client, non-party Michael Phillips, and co-counsel Lori Braverman that occurred on January 7 and 11, 2016. The plaintiffs do not dispute that the communications are subject to the attorney-client privilege but contend that the crime-fraud exception permits discovery. For several reasons, this motion to compel is denied . It is too late in the day for the plaintiffs to bring this motion to compel in this action. The plaintiffs have not shown a sufficient connection between the discovery they seek from Phillips attorneys and their claims in the § 1983 action. Th e plaintiffs have obtained discovery directly from the title company and have not disputed Bronfman's description of that evidence. As Bronfman explains, it was Sanford -- and not Phillips -- who was the avenue through which the title company re ceived material information. If Bronfman's evidence were indeed critical, the plaintiffs would have brought a motion to compel it when they pursued discovery in Phillips. They have failed to carry their burden to show probable cause for breaching the privilege, sufficient relevance to the § 1983 claim, or adequate diligence to require an in camera review and further litigation at this stage of the instant lawsuit. (Signed by Judge Denise L. Cote on 2/23/2021) (jca)
Case 1:17-cv-05833-DLC Document 384 Filed 02/23/21 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NORMA KNOPF and MICHAEL KNOPF,
:
:
Plaintiffs,
:
-v:
:
FRANK M. ESPOSITO, DORSEY & WHITNEY,
:
LLP, NATHANIEL H. AKERMAN, EDWARD S.
:
FELDMAN, and MICHAEL HAYDEN SANFORD,
:
:
Defendants.
:
:
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17cv5833(DLC)
MEMORANDUM OPINION
AND ORDER
DENISE COTE, District Judge:
In a letter of February 15, 2021, the plaintiffs move to
compel non-party attorney Matt Bronfman to produce
communications between himself and his client, non-party Michael
Phillips, and co-counsel Lori Braverman that occurred on January
7 and 11, 2016.
The plaintiffs do not dispute that the
communications are subject to the attorney-client privilege but
contend that the crime-fraud exception permits discovery.
This action, which arises under § 1983, asserts that the
defendants violated the plaintiffs’ constitutional rights by
conspiring to corrupt a state court official to eliminate any
restraints on the sale of a penthouse or on distribution of the
proceeds of any such sale.
Discovery was scheduled to close on
February 19, and summary judgment motions are due March 12.
Case 1:17-cv-05833-DLC Document 384 Filed 02/23/21 Page 2 of 5
Phillips is the defendant in the related case, Knopf v.
Phillips, 16-cv-6601 (“Phillips”).
In Phillips, the Knopfs sue
Phillips for fraudulent conveyance of the penthouse in violation
of New York law.
The Knopfs allege that Phillips purchased the
penthouse despite knowing that the seller, Michael Sanford, was
not legally authorized to sell it.
The Knopfs contend that the
email communications may discuss a court order of December 29,
2015 that is relevant to the sale and their theory of liability
in both actions.
The Knopfs argue that Phillips and his
attorneys concealed that order from a title company.
Finally,
the Knopfs argue that Phillips’ knowledge of the December 29
order is relevant to the motives of Sanford’s attorneys, who are
defendants in the instant lawsuit, in placing a telephone call
to the court employee.
Phillips argues that the plaintiffs have not met their
burden of showing that there is probable cause that the
communications they seek were in furtherance of a crime or
fraud.
He also argues that the requested communications are
irrelevant to this lawsuit and only pertain to the claims in
Phillips.
He requests, in any event, in camera review of the
subpoenaed materials before requiring their production.
Discovery was concluded long ago in the Phillips action.
There
was no motion to compel this discovery from Bronfman during the
period for discovery in the Phillips action.
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Case 1:17-cv-05833-DLC Document 384 Filed 02/23/21 Page 3 of 5
“It is indisputable that communications made in furtherance
of an ongoing crime are not protected by the attorney-client
privilege.”
1982).
In re John Doe Corp., 675 F.2d 482, 491 (2d Cir.
“[T]he crime-fraud exception does not apply simply
because privileged communications would provide an adversary
with evidence of a crime or fraud . . ..
Instead, the exception
applies only when the court determines that the client
communication . . . in question was itself in furtherance of the
crime or fraud.”
In re Richard Roe, Inc., 68 F.3d 38, 40 (2d
Cir. 1995).
The party “seeking to overcome the attorney-client
privilege with the crime-fraud exception must show that there is
probable cause to believe that a crime or fraud has been
committed and that the communications were in furtherance
thereof.”
In re John Doe, Inc., 13 F.3d 633, 637 (2d Cir. 1994)
(citation omitted).
In other words, the party must show “that a
prudent person [would] have a reasonable basis to suspect the
perpetration or attempted perpetration of a crime or fraud, and
that the communications were in furtherance thereof.”
(citation omitted).
Id.
“Such communications are properly excluded
from the scope of the privilege even if the attorney is unaware
that his advice is sought in furtherance of such an improper
purpose.”
In re Grand Jury Subpoena Duces Tecum Dated Sept. 15,
3
Case 1:17-cv-05833-DLC Document 384 Filed 02/23/21 Page 4 of 5
1983, 731 F.2d 1032, 1038 (2d Cir. 1984).
See also Clark v.
United States, 289 U.S. 1, 15 (1933).
In Knopf v. Phillips, 802 F. App'x 639, 643–44 (2d Cir.
2020), the Second Circuit reinstated the Phillips action
following this Court’s grant of summary judgment to the
defendant.
The court found that the plaintiffs “submitted
evidence supporting their allegations that Phillips: (1) was
familiar with the details of the state court litigation
(including that the Knopfs had obtained summary judgment on
their breach of contract claim); (2) knew of the various court
orders that had restricted the sale of the [penthouse]; and (3)
actively prevented his title company from learning all of the
details of the state court litigation.”
Id.
For several reasons, this motion to compel is denied.
It
is too late in the day for the plaintiffs to bring this motion
to compel in this action.
The plaintiffs have not shown a
sufficient connection between the discovery they seek from
Phillips’ attorneys and their claims in the § 1983 action.
The
plaintiffs have obtained discovery directly from the title
company and have not disputed Bronfman’s description of that
evidence.
As Bronfman explains, it was Sanford -- and not
Phillips -- who was the avenue through which the title company
received material information.
If Bronfman’s evidence were
indeed critical, the plaintiffs would have brought a motion to
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Case 1:17-cv-05833-DLC Document 384 Filed 02/23/21 Page 5 of 5
compel it when they pursued discovery in Phillips.
They have
failed to carry their burden to show probable cause for
breaching the privilege, sufficient relevance to the § 1983
claim, or adequate diligence to require an in camera review and
further litigation at this stage of the instant lawsuit.
Dated:
New York, New York
February 23, 2021
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