In this case, plaintiff, Vladimira Koch, alleges that defendant Ragues & Min, Esq. and Raymond Ragues (together, the Ragues Defendants), and other defendants, committed legal malpractice case in an underlying matrimonial action. Some of the allegations of the complaint are described below, in the body of this decision, and have also been addressed in previous decisions in this case, with which familiarity is presumed.

The Ragues Defendants move here, pursuant to CPLR §§ 2304 and 3103 (a), to quash a subpoena served on their current counsel, non-party L'Abbate, Balkan, Colavita & Contini, L.L.P, (LBCC), to compel discovery, for a protective order precluding the continued deposition of Raymond Ragues (Ragues), and for the attorneys' fees, costs and disbursements incurred in [*2]making this motion. Plaintiff moves to quash a subpoena served on her counsel, non-party KTHL Law Offices, P.C. (KTHL) and Mr. Jaromir Kovarik, Esq. (Kovarik), to enforce the subpoena served on LBCC, to compel resumption of the deposition of Raymond Ragues (Ragues) and for the attorneys' fees, costs and disbursements associated with this motion.

The Subpoena on LBCC

The Ragues Defendants' motion to quash, and plaintiff's motion to enforce, the subpoena served on LBCC, is moot as the subpoena has been withdrawn pursuant to plaintiff's counsel's letter dated June 7, 2011.

The Ragues Defendants' Motion for a Protective Order

The Ragues Defendants move for a protective order barring the continuing deposition of Raymond Ragues arguing that plaintiff has not conducted the deposition efficiently. The Ragues Defendants also take issue with the nature of plaintiff's counsel's questions, or questioning technique, and contend that plaintiff unnecessarily and improperly adjourned the deposition without consent, causing the Ragues Defendants, a small firm, difficulty.

In opposition, plaintiff contends that Raymond Ragues appeared an hour late for one day of his multi-day deposition, that Ragues was deposed for both himself and his firm, which takes more time, and that the Ragues Defendants' counsel's behavior unnecessarily protracted the depositions. Plaintiff asserts that defendants "using a classic bait-and-switch' technique, frequently changed or cancelled or rescheduled the time and duration of the deposition sessions" adding to plaintiff's costs (Pl. Op., at 3).

The court does not understand the meaning of "a classic bait-and-switch technique" in this context. Plaintiff also does not demonstrate that she did not agree to changes for the Ragues Defendants' deposition dates or times, or describe how she suffered prejudice or incurred costs. Plaintiff has not provided copies of transcript pages demonstrating improper conduct by the Ragues Defendants' counsel, and the pages provided by the Ragues Defendants do not support plaintiff's counsel's statement that he adjourned the deposition for the convenience of all.

While plaintiff's counsel was not free to unilaterally adjourn the deposition, the Ragues Defendants ignore that it was 4:51 p.m. when he did so, and therefore essentially the end of the business day. Depositions should be completed in a reasonable time (cf. McGrath v Glens Falls Hosp., 78 AD2d 929 [3d Dept 1980]), but the amount necessarily will vary depending on many factors, including the nature of the case and the deposition technique of the questioning attorney. The portion of the pages of the transcript submitted by the Ragues Defendants with their moving papers does not alone demonstrate that the deposition was not completed in a reasonable time period.^[FN1] Therefore, the deposition is to be continued. As plaintiff's counsel stated on the record that he had about two hours worth of additional questions, it is appropriate to allow a half day [*3](3½ hours) for the remainder of the deposition, which should not be overly burdensome to Ragues. Therefore, the Ragues Defendants' motion for a protective order is denied, without prejudice to renewal, with a copy of the transcript and supplemental briefs, if plaintiff's counsel has not finished questioning within the 3½ hours time period, and counsel do not agree that additional time is genuinely needed, on the same day, to complete the deposition.

Unless the parties can agree otherwise, without court intervention, the deposition is to be conducted after the completion of plaintiff's deposition, but in caption order relative to the other defendants whose depositions remain outstanding, except for Frank Salvi, whose deposition date will remain as scheduled in the discovery conference order of October 27, 2011. All depositions in this action should commence at 10:00 a.m., except for the plaintiff's, discussed elsewhere. It is the court's sincere hope that it is not forced to review a transcript to make a determination as to any of these experienced counsels' efficiency or compliance with Rule 221.1.

The Subpoena of KTHL/Kovarik

The Ragues Defendants move to compel plaintiff's current counsel, KTHL and Kovarik, to comply with a subpoena for documents and for Kovarik's testimony. Plaintiff and KTHL/Kovarik, move to quash the subpoena. The Ragues Defendants argue that Kovarik is a material witness in the underlying matrimonial action. KTHL and Kovarik represented plaintiff in the underlying matrimonial proceedings, after the Ragues Defendants, with plaintiff's counsel referring to the defendants, in this action, who represented plaintiff in the matrimonial action as her "pre-2007 counsel" (Kovarik Aff., in Op. to Def. Jt. Mot. to Compel. Pl.'s EBT, at 9 [June 21, 2011, Mot. Seq. No. 21]).^[FN2]

It was while KTHL and Kovarik represented plaintiff that she was able to get the matrimonial judgment that had been entered in favor of her ex-husband, Robert, vacated. Additionally, plaintiff was able to obtain a matrimonial judgment in her favor, in 2008 (the 2008 Judgment), with KTHL's representation.

In its subpoena, the Ragues Defendants seek the entire legal file from the underlying matrimonial action, documents concerning the retainer, invoices and payments in that action, and documents related to claims alleged in the complaint. A brief overview of some of the complaint allegations is helpful at this point. Plaintiff claims that the defendants who were her counsel in the matrimonial action: (1) failed to properly raise jurisdictional defenses, were not competent in matrimonial law or in litigating a complex international matrimony action; (2) failed to explain the implications of plaintiff and Robert's partnership agreement in court or to protect plaintiff's non-martial property; (3) omitted plaintiff and Robert's minor child from both parties' pleadings and failed to seek child support; and (4) withdrew as counsel inappropriately and failed to advise plaintiff of the ramifications of their withdrawal.

Plaintiff also alleges that the defendants failed to adequately assist her with immigration matters, leaving her unable to personally prosecute her case or to represent to the matrimonial court her reasons for failing to comply with court orders. Plaintiff contends that this resulted in [*4]two contempt orders against her, the loss of control of her businesses and their solvency, and her legal and financial liability in the Czech Republic.

Plaintiff claims that because of defendants' conduct and abandonment, she was left a pro se litigant, unable to enter the United States, and that Robert was able to obtain a default judgment against her, in 2006, awarding him the bulk, if not all, of the couples', and plaintiff's own, once profitable business assets (the companies). Plaintiff alleges that the companies were the only source of income for her and her minor son, and that she was deprived of access to her property, and caused to incur large sums in legal fees to straighten out the procedural issues caused by defendants' alleged shortcomings. Plaintiff alleges that had the defendants raised certain defenses in the matrimonial action, it would have been dismissed or transferred, and her damages avoided, because, among other things, the court would not have ordered that Robert be given control over pre-marital and marital property. Plaintiff claims that the companies, placed under Robert's control, are in financial ruin, and that she lost income, property and support, including child support.

Plaintiff's counsel states that the 2008 Judgment is uncollectible because Robert wasted or embezzled the assets while they were in his possession and disappeared before the conclusion of the divorce case (id., at 10). Plaintiff contends that Robert now appears to be indigent and/or to have fled the jurisdiction, and that she will incur more expense in collecting, or not be able to collect, what is due her.

The plaintiff's motion to quash the Subpoena on Kovarik/KTHL and the defendant's motion to enforce the subpoena is resolved as follows:

1. Item Numbers Two, Three and Four of the Subpoena for Documents

These items demand documents concerning plaintiff's invoices and payments in the matrimonial action, and the motion to quash is denied as to them. The requests are narrowly tailored and sufficiently identify documents concerning matters that plaintiff has placed into issue, including legal fees and costs that she claims in the complaint to have incurred due to defendants' alleged malpractice. If plaintiff did not want to put these fees and the evidence of them at issue, she should not have worded her complaint in the way that she did. Furthermore, there is no claim of privilege to the amounts of the invoices (see Oppenheimer v Oscar Shoes, 111 AD2d 28 [1st Dept 1985]), and plaintiff fails to allege that these documents contain privileged information. Therefore, she has not met her burden to demonstrate that these documents are subject to privilege (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371 [1991] [burden of establishing any right to protection is on the party asserting it]).

Plaintiff's argument that defendants must accept the determination as to legal fees in the underlying matrimonial action is unsupported. The defendants were not parties to that action and the complaint is not limited to the attorneys' fees awarded, but to those that plaintiff claims she incurred due to defendant's malpractice. Plaintiff's argument that the damages in the matrimonial case may not be the same as found in this case does not demonstrate why defendants would not be entitled to non-privileged evidence under plaintiff's control concerning her alleged damages. Even if plaintiff's contention that she may be estopped from asserting that she has suffered damages greater than those she was awarded in the matrimonial court, due to her statements and representations there, is correct, plaintiff does not demonstrate why this would preclude defendants from obtaining information about damages. Documents responsive to these three [*5]demands should be produced within 15 days of the date of this order.

2. Item Numbers Five, Six, Seven and Nine of the Subpoena for Documents

The subpoena is quashed as to these items. Demands five, six and seven are overly broad, essentially requesting any and all documents relating to plaintiff's suit, and therefore are not sufficiently particularized as either a request in a document demand or in a subpoena. While the designation of documents by the use of phrases such as "any and all" does not necessary render a request for documents improper, such phrases are at least "some indication of a lack of the requisite specificity" (Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733, 734 [2d Dept 1986]), and here impede a ready identification of the things to be produced.

Item number nine is unenforceable as written in that it appears to suffer from a typographical or other mistake, rendering it incomprehensible. This is not to be read as an indication that the demand would not be proper if rewritten.

3. Item Numbers Eight and Ten of the Subpoena for Documents

The motion to quash is denied as to item numbers eight and ten. However, plaintiff's counsel also represented that there were no other documents responsive to number eight of the subpoena in his possession, rendering this item moot. KTHL and Kovarik should provide all of documents responsive to item number ten within 20 days of the date of this order. Any item submitted to the court in the matrimonial action is not privileged, and plaintiff has not demonstrated that these documents are not relevant.

4. Item Number One of the Subpoena for Documents

In item number one, Ragues seeks the entire legal file of KTHL/Kovarik concerning the representation of plaintiff with the underlying action. In opposition, Kovarik affirms that he and KTHL: did not get involved in the matrimonial action until a substantial period of time after all of the defendants were no longer involved; that other than a few communications protected by attorney-client privilege, he has no information that has not already been provided through party discovery; that he has provided over 11,000 pages of documents concerning every aspect of the matrimonial action; and that the subpoena is duplicative of the discovery demands already served on plaintiff. To the extent that this request is not overly-broad, Kovarik's affirmation suffices to demonstrate that there are no responsive documents other than those already provided or subject to attorney-client privilege or work product doctrine.

The Ragues Defendants argue that they are entitled to all of the documents in the file, including those that are privileged, because plaintiff has placed "at issue" the legal advice she obtained in the matrimonial action. "The burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed, and its application must be consistent with the purposes underlying the immunity" (Spectrum Systems, 78 NY2d at 377). Here, the parties do not dispute that the Ragues Defendants seek privileged material, but dispute whether or not plaintiff has waived privilege by placing confidential materials "at issue."

" At issue' waiver of [the attorney-client] privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 62 AD3d 581, 582 [1st Dept 2009], quoting Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 [*6]AD3d 56, 63 [1st Dept 2007]). At issue waiver involves an affirmative act by the holder of the privilege that puts the protected information at issue in the case. Furthermore, the "invasion of the privilege [must be] required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information" (Credit Suisse First Boston v Utrecht-America Fin. Co., 27 AD3d 253, 254 [1st Dept 2006] [internal quotation marks and citation omitted]). In fact,

"[T]hat a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue' in the lawsuit; if that were the case, a privilege would have little effect. Rather, at issue' waiver occurs when the party has asserted a claim or defense that he intends to prove by use of the privileged materials'"

(Deutsche Bank, 43 AD3d at 64 [internal citation omitted]).

Jakobleff v Cerrato, Sweeney & Cohn (97 AD2d 834 [2d Dept 1983]), is a legal malpractice action concerning an underlying matrimonial case that was cited by the First Department in Credit Suisse (27 AD3d 253, supra). In Jakobleff, the Court did now allow the invasion of privilege by a legal malpractice defendant firm that had asserted a third-party claim for contribution against a plaintiff's present counsel, who was also her counsel in the underlying matrimonial action that was the subject of the legal malpractice claim. The Court stated that the privilege was not waived as: "[t]o conclude otherwise would render the privilege illusory in all legal malpractice actions: the former could, merely by virtue of asserting a third-party claim for contribution against the present attorney, effectively invade the privilege in every case" (id. at 835). "It has also been held that the attorney-client privilege is not waived when the information sought relates primarily to a plaintiff's knowledge rather than the legal advice given or information conveyed to counsel" (Bolton v Weil, Gotshal & Manges LLP, 4 Misc 3d 1029[A], 2004 NY Slip Op 51118[U] [Sup Ct, NY County 2004] [citations omitted]).

KTHL and Kovarik represented plaintiff after the alleged malpractice occurred, and while the Ragues Defendants argue that she has put the advice of her subsequent counsel at issue, how they claim that she has done so is not sufficiently clear. While the Ragues Defendants state that KTHL's legal file is relevant for plaintiff's prosecution of her claim, Kovarik affirms that the Ragues Defendants have most of its contents, other than a few privileged communications with plaintiff.

The legal advice that plaintiff has put at issue is the advice that was given to her by the defendants who represented her in the matrimonial action. No party in this action alleges later negligence, after defendants stopped representing plaintiff, when KTHL/Kovarik represented plaintiff. The Ragues Defendants do not demonstrate how KTHL's representation of plaintiff bares on the issues that plaintiff raises about their conduct, such as by pointing to an element of plaintiff's malpractice claim that she puts into issue and relating it to the potential disclosure. Defendants also have not demonstrated that they have not already obtained necessary documents for their defense, or that they are not requesting documents reflecting confidential legal advice when, as discussed in the next section, the information that they require relates to plaintiff's knowledge. Therefore, plaintiff's motion to quash is granted to as to the documents requested in item number one of the subpoena served on KTHL/Kovarik, and the Ragues Defendants' motion [*7]to enforce the subpoena is denied.^[FN3]

5. The Subpoena for Kovarik's Testimony

The Ragues Defendants argue that they are entitled to depose plaintiff's counsel because he was successor counsel in the matrimonial action and therefore witnessed: (1) that the Ragues Defendants were not involved in the matrimonial action when certain findings and conclusions were made; (2) the evidence submitted in the matrimonial action by or on behalf of Robert;^[FN4] (3) the evidence that formed the basis of the matrimonial court's determination concerning the alleged misconduct of the attorneys; (4) the basis for the matrimonial court's determinations and findings, including damages; and (5) plaintiff's mitigation efforts. Regarding the submissions in the matrimonial action, the Ragues Defendants state that the plaintiff domesticated Czech Republic judgments and filed an unopposed summary judgment motion that led to the 2008 Judgment in plaintiff's favor, as well as extraneous and unnecessary findings against defendants in this action.

The Ragues Defendants state that Kovarik made numerous representations to the court in order to obtain the rulings and judicial findings rendered there, and argue that to the extent that plaintiff is attempting to rely on such rulings, they are entitled to examine her counsel concerning what was submitted to the court to support them, and what was withheld. The Ragues Defendants also maintain that plaintiff's testimony in this action demonstrates that the matrimonial award was inflated and/or without basis, and seek to determine whether or not the English language affidavits plaintiff submitted in that action had a basis in reality, as plaintiff claims limited English language skills. The Ragues Defendants argue that they are entitled to discovery on plaintiff's damages because they are not bound by the 2008 Judgment.

As stated above, in opposition, Kovarik affirms that he and KTHL did not get involved in the matrimonial action until a substantial period of time after all of the defendants were no longer involved and that other than a few communications protected by attorney-client privilege, he has no information that has not already been provided through party discovery, including about Robert's submissions.^[FN5] Furthermore, plaintiff objects to having her counsel questioned because she maintains that he will then be disqualified, and that she is concerned that she may have trouble obtaining new counsel, as she did in the matrimonial action.

Whether or not the Ragues Defendants are correct about not being bound to the 2008 Judgment, barring a challenge to the judgment by Robert or plaintiff, its existence, and the [*8]amount of it, will remain the same no matter what the defendants discover about the submissions, the value of the companies or plaintiff and Robert's assets, or plaintiff's knowledge, or lack thereof, about the affidavits she submitted. To the extent that plaintiff seeks to recover for the inability to collect on the judgment, the Ragues Defendants have not made clear how Kovarik's testimony as to what was presented to the matrimonial court before the judgment was rendered is relevant, or how the basis of the court's determination affects collectibility of the judgment in any respect. To the extent that plaintiff seeks damages for alleged business loses, or a decrease in the value of businesses in which she held an interest while they were in Robert's control,

Kovarik's testimony appears irrelevant to this issue. Furthermore, the Ragues Defendants may obtain this information from plaintiff.^[FN6]

Regarding documents that were submitted to the matrimonial court, plaintiff's counsel affirms that he has provided those documents in response to defendants' discovery demands. Documents that plaintiff's counsel did not submit to the matrimonial court could not have formed the basis of the matrimonial court's award. There is no need to question Kovarik about such documents as defendants may obtain from plaintiff documents concerning the value of the businesses to compare them to what was submitted in the matrimonial action.^[FN7] Defendants may also obtain the documents that supported the child support and alimony awards from plaintiff. Through this discovery, the Ragues Defendants can determine the basis for the matrimonial award and whether or not the assets were overvalued. Moreover, it appears that they already have this information (Reich v Reich, 36 AD3d 506 [1st Dept 2007]; Tannenbaum v City of New York, 30 AD3d 357, 358—59 [1st Dept 2006]) [denying plaintiff's request to depose nonparty without showing that information could not be obtained from other sources]).

The Ragues Defendants argue that they are entitled to depose Kovarik because KTHL was successor counsel to them. The Ragues Defendants have not asserted a claim for contribution against KTHL or Kovarik, who are not defendants in this action, and there is no assertion that their malpractice caused plaintiff's injury. Therefore, this case is not analogous to those to which the Ragues Defendants cite in their moving brief.

This case is also not like Bolton (4 Misc 3d 1029 [A], 2004 NY Slip Op 51118[U], supra), where the attorney-client communications deemed waived were made during the alleged period of malpractice, and where the protected information was relevant to establishing the [*9]plaintiff's alleged reliance on the defendant counsel's advice.^[FN8] In IMO Indus. v Anderson Kill & Olick (192 Misc 2d 605 [Sup Ct, NY County 2002]), also cited by defendants, representation by counsel in the underlying action was concurrent, and not sequential as here. Moreover, the court determined that the documents were relevant to proving that IMO's loss was casually related to the defendants' alleged malpractice. Nothing here indicates that any of the negligence or damages that plaintiff alleges are directly related to or implicate the advice of her counsel, and the malpractice that plaintiff alleges preceded plaintiff's counsel's engagement. The concerns of Jakobleff (97 AD2d 834, supra), however, are very much present here where KTHL and Kovarik still represent plaintiff in this case.

Regarding plaintiff's affidavits from the underlying case, Ragues may obtain information about plaintiff's knowledge and understanding of what was in her affidavits without invading attorney-client privilege. Plaintiff may be shown the affidavit or read its contents in her own language and queried concerning her understanding of the facts in it, as well as asked about her knowledge concerning the method of creation of the affidavit at her continued deposition.^[FN9] The same is true of mitigation efforts, an issue that plaintiff has not put into issue at all, but that is raised by defendants.

Finally, ordering plaintiff's counsel to testify may result in depriving her of the counsel of choice, as well as counsel that speaks her language. Therefore, the Ragues Defendants' motion to compel the testimony of KTHL through Kovarik is denied.^[FN10]

Sanctions

Plaintiff's request for sanctions is denied. Plaintiff has not demonstrated that the Ragues Defendants do not present good faith arguments under the law and, in fact, they were successful, in part, on the motion. For the same reasons, the Ragues Defendants' motion for attorneys' fees, costs and disbursements for this motion is also denied.

Therefore, it is

ORDERED that the motion by defendants Ragues & Min and Raymond Ragues, Esq. motion to quash the subpoena served on L'Abbate, Balkan, Colavita & Contini, LLP and Noah Nunberg, Esq., for a protective order concerning the deposition of Raymond Ragues, Esq. and for attorneys' fees and costs is denied and their motion to compel plaintiff's current counsel, KTHL Law Offices, P.C. and Jaromir Kovarik, Esq. to comply with a subpoena for documents and for Kovarik's deposition is granted in part, as set forth above, and is otherwise denied; and it is further

ORDERED that the cross motion by plaintiff to enforce the subpoena served on [*10]L'Abbate, Balkan, Colavita & Contini, LLP and Noah Nunberg, Esq. and for sanctions is denied and the motion to quash the subpoena served on KTHL Law Offices, P.C. and Jaromir Kovarik, Esq. is granted in part, as set forth above, and is otherwise denied and the motion to compel the

continued deposition of Raymond Ragues is granted, as set forth above.

Dated: November 21, 2011

ENTER:

_________________________J.S.C.