Decided: November 20, 2008 - Surrogate Anthony A. Scarpino Jr.
WESTCHESTER COUNTY, Surrogate's Court
Attorneys for JP Morgan Chase Bank, NA
Paul Weiss Rifkind Wharton & Garrison LLP
Attorneys for Howard Levine
Whitman Osterman & Hanna, LLP
Attorneys for Annette de la Renta
Cravath Swaine & Moore LLP
Attorneys for the Pierpont Morgan Library, the Rockefeller University, Historic Hudson Valley, and the Wildlife Conservation Society
Patterson Belknap Webb & Tyler LLP
Attorneys for Anthony Marshall
Warner Partners, P.C.
Attorneys for the New York Public Library
Debevoise & Plimpton LLP
Alison Fischer, Esq.
Casper & Fischer, LLP
Guardian ad litem for Hilary Marshall, Winslow Marshall and Sophie Marshall
Attorneys for the Metropolitan Museum of Art
Farrell Fritz, P.C.
Attorneys for the Ultimate Charitable Beneficiaries
Attorney General of the State of New York Charities Bureau
Attorneys for Philip Marshall
Miller Canfield Paddock and Stone, P.L.C.
Office of Legal Counsel
New York University
Attorney for the Trinity Episcopal Church
Marianne T. O'Toole, LLC
Attorneys for Carnegie Hall
Skadden Arps Slate Meagher & Flom LLP
United Nations Headquarters
Robert M. Morgenthau
District Attorney, New York County
DECISION & ORDER
In these three probate proceedings in the estate of Brooke Russell Astor, the court issued a decision and order dated September 5, 2008 (the "September 5, 2008 order"), in which it ordered, among other things, (1) that by November 17, 2008, Anthony Marshall "must turn over to the court only, all documents responsive to the discovery notices over which he asserts any privilege" for an in camera review and (2) "a privilege log which complies with CPLR 3122[b] and which states as to the privilege against self-incrimination as to each document, specific facts as to why the production is both testimonial and incriminating and as to each other privilege as to each document, why that privilege is claimed."
The September 5, 2008 order went on to read that "[t]hereafter, the court will render a decision on the production of the documents against which the privilege against self-incrimination has been asserted", that "[w]ith respect to those documents over which the privilege against self-incrimination and other privileges were asserted but which the court finds the privilege against self-incrimination unsupported, the court will order the production and service of a privilege log with respect to these documents only on all parties (exclusive of the District Attorney)" and that "[u]pon receipt of the privilege log, the Attorney General may renew his motion to compel document discovery."
By letter dated Friday, November 14, 2008 (faxed to the court at 10:43 p.m. and emailed to the court at 10:51 p.m.), counsel for Mr. Marshall wrote that the September 5, 2008 order had been appealed to the Appellate Division, Second Department; that on October 27, 2008, Mr. Marshall moved by order to show cause to that Court for a stay of the September 5, 2008 order pending the appeal and a preference; that the order to show cause was signed on that date with the stay intact; and that on this date, counsel had been advised orally by a clerk of the Appellate Division, Second Department, that the Court had decided the motion, denying the stay and granting the preference. The letter went on to request that this court should stay the September 5, 2008 order, sua sponte, pending the appeal and listed reasons for that request. Upon receipt of counsel's letter on November 17, 2008, the court declined to modify its September 5, 2008 order.
On that same day, in response, counsel for Mr. Marshall wrote that they had not yet received the written Appellate Division, Second Department decision and order on their motion so that the stay was still in place and requested additional time until November 19, 2008, to comply with the court's September 5, 2008 order. This court notified all counsel that the Appellate Division, Second Department had on this day in fact signed a decision and order denying the stay and granting the preference. On November 19, 2008, counsel for Mr. Marshall delivered to the court a box of documents. The box was labeled on each of its four sides and on the top in large and bold letters as follows:
HIGHLY CONFIDENTIAL FOR IN CAMERA REVIEW FOR SURROGATE'S EYES ONLY
The binders inside the box had labels on them which stated that the documents were for "Surrogate Scarpino's eyes only." Also attached to the box, was a sealed envelope addressed to the Surrogate which contained a letter. The Chief Clerk of the court cursorily reviewed the contents of the letter (which appeared to contain additional legal argument concerning the production of the privilege log and the documents) and returned the letter to counsel for Mr. Marshall as it constituted an ex parte communication with the court. Counsel for Mr. Marshall retrieved a second copy of the letter from the box.
As a preliminary matter, despite the clearly proscriptive labeling by Mr. Marshall's counsel on the outside of the box and the binders that the documents and privilege log are to be reviewed by the Surrogate only, these documents will be reviewed by the court in accordance with Canon 3[B][c] of the Code of Judicial Conduct which provides that "a judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges".
Next, the court notes that the privilege log submitted by counsel for Mr. Marshall does not appear to be in compliance with the requirements set forth in this court's September 5, 2008 order. The Fifth Amendment privilege is the only privilege set forth in the log. As quoted above, the September 5, 2008 order clearly stated that all privileges that Mr. Marshall intended to assert with respect to each document needed to be set forth in the log. If Mr. Marshall asserts no other privileges (which assertion appears contrary to representations made in his March 2008 motion papers), then by affidavit his counsel shall notify the court by November 26, 2008, that he intends to assert no other privileges. If Mr. Marshall intends to assert other privileges, then, by December 8, 2008, his counsel shall submit a revised privilege log to the court which complies with the requirements set forth in the September 5, 2008 order.
THIS IS THE DECISION AND ORDER OF THE COURT.