Matter of Aoki

In the Matter of the Judicial Settlement of the First Intermediate Account of Proceedings of Keiko Ono Aoki as Trustee of the Trust under Article VIII of the Will of Rocky H. Aoki, also known as Hiroaki Aoki, Deceased; 2008-2604/F The following papers were considered in determining these three motions regarding discovery in the above-captioned matters: Document Numbered Notice of Motion, dated August 19, 2022, to Compel, etc. by Devon and Steven Aoki, with Affirmation, dated August 19, 2022, of Andrew M. Goldsmith, Esq., attaching Exhibits           1, 2 Notice of Motion, dated August 26, 2022, to Compel, etc., by Guardian ad Litem Jessica M. Baquet, Esq. (GAL), with Affirmation of Jessica M. Baquet, Esq., attaching Exhibits           3, 4 Memorandum of Law in Support of GAL Motion 5 Notice of Cross-Motion, dated September 13, 2022, to Compel etc., by Keiko Ono Aoki, with Affirmation, dated September 13, 2022, of Jordan Pietzsch, Esq., attaching Exhibits           6, 7 Memorandum of Law in Opposition to Motions and In Support of Cross-Motion                8 Reply Affirmation, dated September 28, 2022, of Jessica M. Baquet, Esq., in Further Support of GAL Motion, attaching Exhibits   9 GAL’s Reply Memorandum of Law     10 Reply Affirmation, dated September 23, 2022, of Andrew M. Goldsmith, Esq., attaching Exhibits    11 DECISION and ORDER At the call of the calendar on October 28, 2022, the court granted in part and denied in part three motions: a motion by the guardian ad litem (GAL) and a motion by Devon Aoki and Steven Aoki (Devon and Steven) to compel discovery from Keiko Ono Aoki (Keiko), and a cross-motion by Keiko to compel disclosure from Devon and Steven.¹ The underlying proceedings are those by Devon and Steven to remove Keiko as trustee of the trust established under the will of her spouse, decedent Rocky Aoki, and the separate but related proceeding by Keiko to settle her account as trustee to which Devon and Steven, two of decedent’s children, and the GAL have objected. The parties are conducting discovery jointly in these proceedings because issues in them overlap. With respect to that portion of motion by Devon and Steven to compel the disclosure of the unredacted estate tax return,² the court denied the motion on the ground that the activities of Keiko as the executor of decedent’s estate are not at issue in this trustee accounting proceeding. Regarding those parts of the motions by the GAL and Devon and Steven for disclosure of unredacted copies of legal fee invoices,³ the court granted the motion to the extent that Keiko was directed to provide to the court and serve on the other parties no later than November 18, 2022, a revised privilege which combines all the assertions of privilege contained in previously exchanged privilege logs into one document and which specifies for each entry the particular court proceeding or action for which attorney advice was given and in what capacity Keiko received the advice. As to each entry on the revised log, the court further directed Keiko to confirm that the advice she received from counsel did or did not relate to the administration of the trust or its assets, including Benihana of Tokyo (BOT). Keiko’s cross-motion, which focused on the completeness of Devon and Steven’s privilege log, was granted solely to the extent of directing Devon and Steven to serve on Keiko and file with the court no later than November 18, 2022, a revised privilege log providing greater and more specific detail in the description of the documents withheld by them on privilege grounds.⁴ Regarding that portion of the GAL’s motion which seeks to compel Keiko to respond to the GAL’s discovery demands, the court directed that Keiko, no later than November 18, 2022, provide an affirmation of counsel confirming that she has produced all responsive documents or supplement her production to the GAL by that date specifying which documents respond to which of the GAL’s requests.⁵ In addition, the revised privilege log that Keiko must provide, discussed above, shall also include any document responsive to the GAL’s demands as to which privilege is asserted, identifying the part of the document, if applicable, to which the privilege claim attaches. Regarding all three motions, no later than November 22, 2022, any party continuing to challenge an assertion of privilege shall serve and file with the court an affirmation of counsel with a list of the entries being challenged, indicating the basis for the challenge in no more than one or two sentences, and shall highlight those entries on the privilege log itself, which shall be attached to the affirmation. After the revised privilege logs and challenges, if any, are received, the court may request that certain documents specified on the privilege logs be provided for in camera review by a date certain, and thereafter, the court may provide further direction with respect to those documents. Finally, the court reserved decision on that portion of the motion to compel by Devon and Steven which concerns the Schulman firm’s communications and documents so that those issues can be decided at the same time the court determines the separate cross-motions regarding the propriety of Keiko’s assertion of privilege over communications and documents from the Schulte firm, that had been previously submitted for resolution. Otherwise, the court denied the motions. In view of these determinations, the court extended the deadline for the conclusion of document discovery to December 16, 2022. The parties were reminded that failure to comply with these directions may result in sanctions. This decision, together with the transcript of the October 28, 2022 proceedings, constitutes the order of the court. Dated: November 16, 2022