Family Law Keyed to Weisberg

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In Re Mendel

Citation. In re Mendel, 259 A.D.2d 6, 692 N.Y.S.2d 700, 1999 N.Y. App. Div. LEXIS 7788 (N.Y. App. Div. 2d Dep’t July 6, 1999)

Brief Fact Summary. Attorney Mendel was found in contempt for failing to answer several deposition questions. She responded by claiming that she was privileged from answering based on attorney-client privilege, the attorney work product doctrine, and a lack of relevancy.

Synopsis of Rule of Law. The attorney-client privilege prevents the disclosure of confidential communications made for the purpose of facilitating the rendition of professional legal services. The attorney work product doctrine prevents the disclosure of documents that contain the mental impressions, conclusions, opinions or legal theories of the litigating attorney.

Facts. Allison Mendel, an attorney, was held in contempt of court for her refusal to answer numerous questions at an in-court deposition. In Bock v. Bock, the court vacated a superior court’s custody award of Laura and George Bock’s daughters to their mother, Laura. Rather than turning over custody, Laura went into hiding with the two girls. She also brought suit in federal court against George and this court seeking to set aside the order. Mendel represents Laura in the federal litigation. In 1992 George commenced Bock v. Felbert, asserting various claims for custodial interference, common law interference with custodial rights, conspiracy to interfere with custodial rights, the tort of outrage, conspiracy to cause intentional infliction of emotional distress, false imprisonment, and punitive damages. Mendel is not a named defendant in the litigation. George subpoenaed Mendel to take her deposition. It also requested her to bring numerous documents. She moved to quash the s
ubpoena, but the superior court rejected her claims of privilege, relevancy, and that some information was protected by the First Amendment. Mendel appeared for the deposition but refused to answer certain questions and to produce copies of her billing records. She answered questions regarding when she had last seen Laura. George moved for an order requiring Mendel to show cause why she should not be held in contempt. At the hearing Mendel was held in contempt on five separate occasions for her refusal to answer questions and to produce specific documents.

Issue. Did the court err in finding Mendel in contempt for failing to answer five questions in discovery?

Held. The court abused its discretion because the information was protected by attorney-client privilege, the attorney work product doctrine, and a lack of relevancy.
The questions were: 1) Did you ever receive phone calls from Laura Bock or to Laura Bock in which she gave you authority to proceed on behalf of her in federal court. Mendel refused to answer questions regarding the content of any of her conversations and asserted that the question had no relevance to the litigation. 2) What words did Carolyn Johnson speak that led you to believe she was Laura Bock’s representative? Mendel refused to answer this question based on attorney-client privilege and relevancy. 3) Once you learned that you might have an opportunity to talk to [a Representative of] Street Stories, [a CBS television show] did you obtain authority from Laura Bock to speak to the news media in New York. Mendel argued that her answer was protected by attorney-client privilege and was irrelevant. 4) State the names of any people reflected on the billing record with whom you’ve had conversations concerning this matter, excluding Carolyn Johnson and Laura Bock. Mendel did n
ot answer this question based on attorney-client privilege and the attorney work product doctrine. 5) Produce [ ].