The following papers were considered on this motion: 1. Notice of motion dated March 1, 2024, affirmation of John Farinacci, Esq., exhibits and memorandum of law; 2. Notice of cross motion dated March 27, 2024, affirmation of Taleah E. Jennings, Esq., exhibits and memorandum of law in opposition to motion and in support of cross motion; 3. Affirmation of Gerald K. Geist dated March 27, 2024; 4. Reply memorandum in further support of the motion and in opposition to cross motion; reply affirmation of Jessica Baquet and exhibits; 5. Reply affirmation of Taleah E. Jennings in support of cross motion and exhibits. DECISION In this contested probate proceeding, Philippa Feigen Malkin (Philippa) and Richard Feigen, Jr. (Richard) (collectively, objectants) move for an order (1) disqualifying William Zabel, Esq. (Attorney Zabel) and Schulte Roth & Zabel LLP (SRZ) as attorneys of record for Isabelle Harnoncourt Feigen (Isabelle), Michael Steinhardt (Steinhardt) and Andrew Saul (Saul) (collectively, proponents), the nominated executors under a written instrument dated July 16, 2018 (propounded instrument), and (2) reopening the depositions of Attorney Zabel and Marnie Grossman, Esq. (Attorney Grossman) and directing them to submit to continued examinations prior to the objectants’ depositions taking place. The proponents, and Isabelle in her individually capacity, oppose the motion and cross-move for an order (1) pursuant to section 130-1.1 of the Rules of the Chief Administrator of the Courts ([22 NYCRR] §130-1.1), imposing sanctions on Philippa and Richard and their counsel and (2) pursuant to section 216.1 of the Uniform Rules for Trial Courts ([22 NYCRR] §216.1), requiring certain exhibits and all discussions of information contained therein to be filed under seal. The objectants oppose the cross motion. For the reasons stated below, the motion is granted in part and denied in part, and the cross motion is denied. The Propounded Instrument The decedent died on January 29, 2021, at the age of 90, survived by Isabelle, who was his third wife, and Philippa and Richard, his children from his first marriage. The propounded instrument: (1) nominates the proponents as executors; (2) bequeaths jewelry and clothing to Richard; (3) gives all other tangibles to Isabelle; and (4) pours over the remaining assets to a revocable trust (Trust) which the decedent purportedly executed the same day as the propounded instrument. The Trust provides for the following distributions upon the decedent’s death: $5 million each to Philippa and Richard, $50,000.00 each to Isabelle’s three children, and the residuary to Isabelle outright. This testamentary scheme differs from the decedent’s prior estate plans, including the penultimate instrument, which gave Isabelle 50 percent of the residuary and Philippa and Richard 50 percent, split equally between them. Procedural History The proponents filed the petition for probate of the propounded instrument on March 29, 2021, which sets forth the value of the estate at more than $10 million. Following SCPA 1404 discovery, the objectants filed their objections alleging that (1) the propounded instrument was not duly executed, (2) the decedent lacked testamentary capacity, (3) the propounded instrument was procured by the undue influence of Isabelle and others, and (4) it was procured by fraud practiced upon the decedent by her and others. Jurisdiction pursuant to SCPA 1411 was completed on April 21, 2022. The court issued a post-objection discovery order on May 4, 2022, and on May 17, 2022, prior to any post-objection discovery taking place, the proponents filed a motion for summary judgment to dismiss the objections and admit the propounded instrument to probate, which the objectants opposed. The court granted the motion as to the objections based on lack of due execution and testamentary capacity and denied it as to the objections based on undue influence and fraud. The Motion 1. Disqualification of Attorney Zabel and SRZ In support of their motion to disqualify Attorney Zabel and SRZ, the objectants contend that Attorney Zabel’s testimony, and that of other SRZ trusts and estates attorneys, is necessary or will be prejudicial to Isabelle, which they assert is the standard for attorney disqualification. They point to Attorney Zabel’s significant involvement in the decedent’s estate planning and in matters relevant to this proceeding, including the following: (1) after the decedent’s medical setbacks in 2016,1 Isabelle began speaking for the decedent, communicating directly with SRZ about downsizing his business and terminating longtime employees, and within a week of his 2016 stroke, she contacted SRZ about revisiting his estate plan; (2) Isabelle was present at almost all the meetings with Attorneys Zabel and Grossman regarding the decedent’s estate planning, including those culminating in the execution of the propounded instrument and the Trust, and they used her email address to communicate with the decedent about his estate plan; (3) Attorneys Zabel and Grossman communicated independently with Isabelle, without the presence of the decedent, about his estate plan and her desire to finalize the matter; (4) Attorney Zabel allegedly told the decedent that Philippa had “lawyered up and planned to wage war on Isabelle”, which Philippa denied when the decedent confronted her about it; (5) at a meeting on July 3, 2018, attended by Isabelle, the decedent, and Attorneys Zabel and Grossman, Isabelle told the decedent to pick a number for the kids to get, and the decedent indicated they should each get $10 million; on July 6, 2018, Isabelle sent an email to UBS complaining about the $10 million bequests to Philippa and Richard; and shortly thereafter, on July 10th, she emailed SRZ that the decedent would be calling with a question and one adjustment to his will; Brian Smith, Esq. (Attorney Smith), another SRZ trusts and estates attorney, then called the decedent and reported back to Attorney Grossman that the decedent did not remember any questions he had or if he had any, yet the following day the decedent called Attorney Smith to say he wanted to reduce the children’s share to $5 million each; (6) on July 16, 2018, Attorney Grossman supervised the execution of the propounded instrument without excusing Isabelle from the room; (7) after the execution of the propounded instrument, Attorneys Zabel and Grossman continued to communicate directly with Isabelle about the decedent’s affairs, including the trusts that had long been set up for Philippa and Richard, and her fears of a probate contest; (8) on February 24, 2019, Isabelle emailed Attorneys Zabel and Grossman expressing her concern about a will contest and her desire to create evidence of the decedent’s testamentary capacity, which Attorney Zabel agreed was a good idea; thereafter, she and the decedent saw Dr. Klebanoff, a neurologist, who sent a letter regarding the examination results to Attorney Zabel; Attorney Zabel then marked up the letter, deleting the references to Isabelle’s presence at the examination and adding the following sentence: “Overall, the patient’s cognitive functioning is very strong, including the ability to make judgments and decisions independently about his financial affairs”; Dr. Klebanoff revised her letter accordingly, and SRZ initially produced only the doctor’s revised letter in pre-objection discovery; and (9) following the court’s decision on the motion for summary judgment, SRZ’s litigation attorneys produced 700 additional documents that they had originally withheld as privileged, including Attorney Zabel’s marked up copy of Dr. Klebanoff’s letter and many communications between Isabelle and SRZ.2 Proponents’ Opposition The proponents contend that (1) the objectants have long known of SRZ’s involvement in the very communications they now say warrant disqualification; and (2) they made the motion as a litigation tactic (a) to delay the proceedings and to avoid having SRZ take their depositions, because the firm, knowing them well, “is in the best position to defend against [their] meritless challenges;” and (b) to wear Isabelle down and weaken the proponents’ case by depriving them of their chosen counsel. In addition, the proponents argue that the objectants misstate the law on attorney disqualification, which requires that the movant show that the attorney’s testimony is both necessary and would be prejudicial to the client. With respect to disqualification of SRZ, they cite Murray v. Metro Life Ins. Co. (583 F23d 173 [2d Cir 2009]) for the proposition that, to disqualify the attorney’s firm, the movant must show by “clear and convincing” evidence that the attorney’s testimony will be prejudicial to the client and that the integrity of the judicial system will suffer as a result. They contend that the objectants cannot meet this standard. The proponents also contend that Attorney Zabel is not necessary because the testimony sought from him could be presented through non-lawyer witnesses and also would be (a) undisputed (e.g. objectants’ allegations that the decedent was capable of communicating with SRZ on his own prior to 2015 and that Attorney Zabel understood that Philippa had retained a lawyer and was planning to sue Isabelle regarding the estate plan), (b) cumulative of other testimony (e.g. objectants’ allegations that after 2016 Isabelle was SRZ’s primary point of contact regarding the decedent’s affairs and that she was involved in the preparation and execution of his testamentary documents), (c) insignificant (e.g. objectants’ allegations that SRZ attorneys did not ensure that Isabelle was not unduly influencing the decedent) or (d) irrelevant (objectants’ allegations that SRZ failed to exercise professional judgment regarding Dr. Klebanoff’s letter in 2019). Finally, the proponents assert that the objectants do not meet the standard for disqualification because the testimony would be favorable to Isabelle and not prejudicial, citing several examples, including (1) the deposition testimony of Attorney Grossman in which she explained that she communicated with the decedent through Isabelle’s email account because he only had a non-confidential work email; (2) deposition testimony that Isabelle attended estate planning meetings and wanted whatever the decedent wanted; (3) Attorney Zabel’s deposition testimony that he would not let a client execute a will if he thought he was incapacitated or under undue influence, and that he had meetings with the decedent to design a testamentary plan that would protect Isabelle in the event the objectants sued her; and (4) regarding Dr. Klebanoff’s letters, there is nothing untoward about a trusts and estates attorney commenting on what aspects of an opinion are needed by a client. Reply In reply, the objectants assert that the proponents have caused the delay by wrongfully withholding nearly 1,000 documents, including Attorney Zabel’s marked-up draft of Dr. Klebanoff’s letter, filing a motion for summary judgment, which stayed discovery, and then producing 700 of those documents only after the court’s decision on the summary judgment motion issued, and that because of the late production, they now have additional support for disqualification regarding Isabelle’s involvement in the decedent’s estate planning and interactions with SRZ. They also argue that (1) the proponents’ proffered standard for disqualification is incorrect, but even under their standard, SRZ’s disqualification is warranted, (2) the proponent’s late production of documents demonstrates that the testimony of SRZ attorneys will prove a confidential relationship between Isabelle and the decedent; and (3) the testimony will be prejudicial to the proponents because SRZ did not investigate possible undue influence, they used poor professional judgment, and Attorney Zabel allegedly falsely told the decedent that Philippa had “lawyered up” and intended to “wage war on Isabelle”. Analysis The Advocate-Witness Rule Rule 3.7 of New York’s Rules of Professional Conduct, provides in relevant part: Lawyer as Witness (a) A lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless: (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work a substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal. (b) A lawyer may not act as an advocate before a tribunal if: (1) Another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial. (NY Rules of Prof Conduct [22 NYCRR 1200.0] rule 3.7 [a] & [b]). The rule serves a number of purposes, including: 1. Avoiding the unseemliness of an attorney arguing to the trier of fact as to his or her own credibility; 2. Avoiding damage to the client if a jury discounts the testimony of the lawyer precisely because he or she is simultaneously acting as advocate and witness; 3. Conversely, avoiding a jury giving undue credence to the lawyer’s testimony because of his special knowledge of the law and facts; 4. Avoiding temptation for the lawyer to cover up parts of testimony which may be unflattering to him or her; 5. Avoiding confusion to the jury and unfairness where the lawyer may testify under the guise of legal argument or make legal arguments under the guise of testimony; and 6. Avoiding the practical problem of either bringing a new lawyer in solely to question the advocate-witness, or, alternatively, have the attorney question himself. Carltun on the Park Ltd. v. Weitzman, 2010 NY Slip Op 33389[U] [Sup Ct, NY County, 2010] [citing Simon, NY Code of Responsibility at 779 [8th ed.]; see also S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437, 444 and n 4 [1987]); Murray v. Metro Life Insur Co, 583 F3d 173, 178). While the rules establish ethical standards that guide lawyers in their professional conduct, they do not constitute controlling statutory or decisional law and should not be applied mechanically when disqualification is raised in litigation (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY 2d at 443; HoganWillig PLLC v. Swormville, 210 AD3d 1369, 1372 [4th Dept 2022]). Disqualification implicates not only ethics, but also the rights of the litigants, including the valued right of a litigant to representation by a lawyer of one’s own choosing, and, in contested proceedings, poses the potential for misuse as a litigation tactic (see id.). The disqualification of an attorney under the advocate-witness rule rests within the sound discretion of the court (Gamez v. Lopez, 220 AD3d 844 [2d Dept 2023]; Flak v. Gallo, 73 AD3d 685 [2d Dept 2010]). The party moving for disqualification of the opposing party’s attorney must make “a clear showing” that (1) the attorney’s testimony is necessary to [the moving party's] case and (2) that such testimony would be prejudicial to the opposing party (Gamez v. Lopez, 220 AD3d at 846 [reversing trial court's grant of defendant's motion to disqualify plaintiff's counsel on the ground that defendant failed to show that plaintiff's counsel's testimony would be necessary to the defendant's case and that such testimony would be prejudicial to the plaintiff]; Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, 218 AD3d 760, 761 [2d Dept 2023]). “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” (S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 NY2d at 446). Applying the above standards, in order to disqualify Attorney Zabel, the objectants must make a clear showing that his testimony is necessary to their case and that it would be prejudicial to the proponents (see Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, 218 AD3d at 761). Of course, if that finding is made, then disqualification of the firm would also likely be required (see [22 NYCRR] §3.7 [b]).3 As noted, the two remaining objections are those based on undue influence and fraud. “[B]ecause direct proof of undue influence is rare, it may be demonstrated by circumstantial evidence of motive, opportunity and the actual exercise of such influence” (Matter of Ballschmieder, NYLJ, Dec. 23, 2013, at 25 [Sur Ct, Richmond County]). Among the factors considered are: (1) the testator’s physical and mental condition; (2) whether the attorney who drafted the propounded instrument was the testator’s attorney; (3) whether the propounded instrument deviates from the testator’s prior testamentary plan; (4) whether the person who allegedly wielded undue influence was in a position of trust; and (5) whether the testator was isolated from the natural objects of his bounty (see Matter of Ramirez, 68 Misc3d 1207[A] [Sur Ct, Queens County 2020]; see also, Matter of Hirschorn, 21 Misc 3d 1113[A] [Sur Ct, Westchester County 2008]).). Additionally, an inference of undue influence arises, requiring the beneficiary under the instrument to explain the circumstances of the bequest, when the beneficiary was in a confidential relationship with the testator and was, in some way, involved in the drafting of the will (see Matter of Putnam, 257 NY 140 [1931]; Matter of Collins, 124 AD2d 48 [4th Dept 1987]). This inference places the burden on the beneficiary to explain the circumstances of the bequest (see Matter of Collins, 124 AD2d 48). Despite the contention by the proponents that SRZ’s interactions with the decedent and Isabelle are not in dispute and, in any case, will support Isabelle, the question of whether a testamentary instrument was the result of undue influence hinges on evidence of a circumstantial nature and also on the credibility of the witnesses (Matter of Kubecka, 15 Misc 3d 1129[A] [Sur Ct, Suffolk County 2007]). The testimony of Attorney Zabel, and other SRZ trusts and estates attorneys who were involved in the decedent’s estate planning and related matters, will be necessary to support the objectants’ undue influence objection. Matters such as whether Isabelle was in a confidential relationship with the decedent and her direct involvement with SRZ attorneys in the decedent’s estate planning may serve as circumstantial evidence of undue influence. Similarly, while the proponents may not call Attorney Zabel or other of the decedent’s trusts and estates attorneys to testify about their involvement with Isabelle regarding the decedent’s art gallery, this testimony, too, might also provide circumstantial evidence of undue influence to support the objectants’ case. Further, given that circumstantial evidence might go either way, much will ride on the credibility of the witnesses. In this regard, the SRZ lawyers’ testimony might, inadvertently, prove prejudicial to the proponents. Thus, for example, the proponents assert that Attorney Zabel’s role in connection with the decedent’s examination by Dr. Klebanoff well after the execution of the propounded instrument is not relevant as the court dismissed the objection based on lack of testamentary capacity, and it is not harmful, a decedent’s mental and physical condition is nonetheless relevant on an undue influence objection, and the fact that Attorney Zabel revised the letter and deleted the doctor’s references to Isabelle’s presence at the examination might ultimately prove to be prejudicial to her. Attorney Zabel’s purported statement to the decedent that Philippa had “lawyered-up” and “planned to wage war on Isabelle”, which Philippa denies saying to him, also implicates credibility issues. In light of the involvement of Attorneys Zabel and Grossman in the many discussions with the decedent and Isabelle regarding the decedent’s estate plan and the children’s trusts, as well as their involvement with Isabelle regarding the decedent’s art gallery, their testimony would appear necessary to the objectants’ case on undue influence and, by the very nature of circumstantial evidence, may potentially prove to be prejudicial to the proponents. Therefore, applying the law to the facts here, the motion to disqualify them is granted. With respect to the branch of the motion that seeks to impute the disqualification of Attorneys Zabel and Grossman to SRZ, there exist the same risks that the rule seeks to guard against: that the SRZ lawyers “might appear to vouch for the credibility” of their colleagues and that “the line between argument and evidence may be blurred, and the jury confused” (see Murray v. Metro Life Insur Co., 583 F3d at 178; S & S Hotel Ventures Ltd. Partnership v. 777 S & H Corp., 69 NY2d at 444 and n 4). As to whether disqualification of SRZ should occur immediately, where disqualification of counsel is sought pursuant to the witness-advocate rule, the majority view in probate proceedings favors waiting to disqualify until trial (see Matter of Giantasio, 173 Misc 2d 100, 102 [Sur Ct, Bronx County 1997]; Matter of Giordano, NYLJ, Aug. 19, 2022 at 17, col 3 [Sur Ct, Richmond County]; see also Matter of Kelner, NYLJ, Jan. 25, 1996 [Sur Ct, Westchester County]). The cases cited by the objectants are distinguishable. For example, in Matter of O’Malley (141 Misc 2d 863 [Sur Ct, Rensselaer County 1988]), a probate proceeding, the court disqualified proponent’s counsel, who was the attorney draftsman and an attesting witness, immediately after the filing of objections because the potential filing of affidavits and dispositive motions would put the lawyer in the position of arguing his own credibility. Unlike in Matter of O’Malley, supra, and Munk v. Goldome Nat. Corp (697 F. Supp. 784, 788 [SDNY 1988]), on which the objectants also rely, this litigation has progressed well beyond its initial stages: the depositions of Isabelle’s nominated co-executors have taken place, as have the depositions of Attorneys Zabel and Grossman and the attesting witnesses; thousands of documents have been produced, and a summary judgment motion and discovery motions have been made. Moreover, the proponents are not unsophisticated, and they apparently wish to continue with SRZ as their counsel. To disqualify SRZ at this stage of the proceedings is unnecessary and potentially would cause the proponents unnecessary hardship. The concerns that the rule seeks to address are less pressing during the pretrial stage of a litigation. Accordingly, in balancing the various factors involved in a disqualification determination, the court denies the motion to disqualify SRZ to the extent that they may continue their representation of the proponents up to the time of trial, and otherwise the motion is granted. 2. Reopening the Depositions of Attorney Zabel and Attorney Grossman The objectants also seek to re-open the depositions of Attorneys Zabel and Grossman to allow examination regarding matters relevant to the documents the proponents produced after the depositions were taken and after the court issued its decision on the summary judgment motion. The objectants assert that: (1) the proponents wrongfully withheld hundreds of documents on the ground of attorney client privilege, then they moved for summary judgment immediately after the objections were filed, and waited to produce nearly 700 of these documents until after the summary judgment motion was decided; (2) the proponents submitted the second version of Dr. Klebanoff’s letter, which incorporated Attorney Zabel’s revisions, in support of their motion for summary judgment and only disclosed her original letter showing Attorney Zabel’s mark-ups after the court had dismissed the objection based on testamentary capacity; and (3) the post-summary judgment motion production also included numerous documents reflecting communications between Isabelle and the attorneys. The objectants assert that the proponents continue to wrongfully withhold 300 documents, which are the subject of a separately filed motion. The proponents oppose reopening the depositions of Attorneys Zabel and Grossman, asserting that the objectants have failed to demonstrate good cause necessary to re-open SCPA 1404 depositions. They also assert that the objectants did not identify any documents from the post-summary judgment motion production that they did not have during their initial examination, nor any topic area they were unable to pursue without the newly disclosed communications. They contend that reopening the depositions of Attorneys Zabel and Grossman would serve no purpose and constitute a waste of time, pointing out that Attorney Zabel was deposed for approximately five hours, and Attorney Grossman was deposed for approximately eight hours, both depositions covering a wide array of topics, including those identified in the objectants’ motion. In reply, the objectants state that they specifically identified the following documents: (1) Exhibits U, v. and W (exchanges of emails between Isabelle and SRZ from April 2018 regarding her insistence that Philippa had “lawyered up”); (2) Exhibit X (Attorney Grossman’s reply to Isabelle regarding the May 4, 2018 meeting between SRZ and the objectants); (3) Exhibits EE and FF (a letter to SRZ purportedly signed by the decedent but allegedly written by Isabelle, and SRZ’s email response); (4) Exhibits DD, GG HH, II, KK and MM) (the firm’s invoices, which the objectants assert show that SRZ communicated directly with Isabelle outside the decedent’s presence, including about Dr. Klebanoff’s examination); and (5) Exhibits J, K, KK and MM (email exchanges between SRZ and Isabelle after the execution of the propounded instrument without the presence of the decedent). Analysis CPLR 3101 governs the scope of discovery, providing that there shall be disclosure of all matter material and necessary in the prosecution or defense of an action (CPLR 3101 [a]). The words “material and necessary” are to “be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay” (Kapon v. Koch, 23 NY3d 32, 38 [2014] quoting Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406 [1968]). The test is one of relevance, usefulness and reason (Allen v. Crowell-Collier Pub. Co., 21 NY2d at 406). The trial court has broad discretion to supervise and regulate pretrial discovery and to determine what is material and necessary (see Matter of Elyachar, 48 Misc 3d 852 [Sur Ct, Westchester County 2015]). The scope of disclosure in probate proceedings is broad and permits inquiry into all relevant matters which might be the basis for objections to probate (see Matter of Elyachar, 48 Misc 3d 852; Matter of MacLeman, 9 Misc 3d 1119 [A] [Sur Ct, Westchester County 2005]; Matter of Delisle, 149 AD2d 793 [3d Dept 1989]). While a party in a contested probate proceeding will not ordinarily be permitted to examine the attorney draftsman again after he has been deposed pursuant to SCPA 1404, the statute provides that the court may direct otherwise (see SCPA 1404 [4]). In determining whether to allow an additional deposition of an attorney draftsman or other witness deposed under SCPA 1404, the court must strike a balance between the potential for harassment and the requirement of permitting liberal disclosure (see Matter of Kubecka, 15 Misc 3d 1129[A]). In seeking to re-open a SCPA 1404 witness’s deposition, “it is incumbent upon the party seeking reexamination to establish that the information which he seeks to elicit was either heretofore unavailable or that new facts have come to light which necessitate further examination (see id.; Matter of Kubecja, 15 Misc 3d 1129[A]; Matter of Rutherford, 26 Misc 3d 1235[A] [Sur Ct, Bronx County 2010] [granting re-opening of deposition due to production of additional discovery documents]; see also Lis v. Lancaster, 210 AD3d 505 [1st Dept 2022] [granting re-opening of deposition to inquire as to discrepancy between earlier deposition testimony and documents subsequently produced]). Other factors for the court to consider include “the inconvenience of the examination, the location of the witnesses and any prejudice which would result to an objectant if the additional examination was denied” (Matter of MacLeman, 9 Misc 3d 1119 [A] [reopening attorney draftsman's deposition, finding his conversations and transactions with the proponent after decedent's death raised factual discrepancies with the information provided by proponent]). As set forth above, undue influence is often proved by circumstantial evidence, and a proponent’s actions and communications after execution of a testamentary instrument may be relevant (see Matter of Rosen, 296 AD2d 504 [2d Dept 2002][citing Matter of Steinhardt, 228 AD2d 685 [2d Dept 1996]). SRZ’s communications with Isabelle after the execution of the propounded instrument and Attorney Zabel’s mark-up of Dr. Klebanoff’s original letter are relevant areas of inquiry. The firm’s invoices, too, may be a relevant area of inquiry if, as alleged, they show discrepancies regarding the prior testimony as to who was present at various meetings. The parties submitted only short excerpts of the depositions of Attorneys Zabel and Grossman. Accordingly, the court cannot say that additional testimony would be duplicative of their earlier testimony or that it would be a waste of time. The court is mindful, however, that the objectants have already deposed these attorneys for a combined total of 13 hours, and that the objectants will likely also depose Attorney Smith who might be able to speak to some of the issues raised in the additional document production. Accordingly, the court grants the motion to re-open the depositions but limits the areas of inquiry to any documents not produced prior to the depositions and the subject matter contained therein. In addition, the objectants may inquire about relevant, non-privileged material raised by the firm’s invoices that were produced after the court’s decision on the summary judgment motion. The re-opening of these depositions for the purposes set forth above shall not delay these proceedings or disrupt the order of depositions. In this connection, the court notes that the proponents have noticed the depositions of the objectants. These depositions shall take place prior to the continuation of the depositions of Attorneys Zabel and Grossman. The court will issue a new post-objection discovery order at a status conference which will be scheduled in the decision and order on the objectants’ motion to compel. The Cross Motion 1. Sanctions In light of the court’s determination of the motion, the cross motion for sanctions is denied. 2. Sealing Order The proponents also cross-move for an order requiring that Objectants’ Exhibits J-K, T-X, DD-HH and JJ-MM, and all discussions of the information contained in them, be filed under seal pursuant to Uniform Rules for Trial Courts ([22 NYCRR] §216 [a]). They assert that good cause to seal these documents exists because the public has no legitimate interest in their disclosure, and the documents contain sensitive personal, business, financial and health information. In addition, they contend that legal invoices should be sealed because their disclosure would reveal privileged communications between the client and the attorney, citing Licensing Corp of Am v. Nat’l Hockey League Players Ass’n, 153 Misc 2d 126 (Sup Ct, NY County 1992]). Moreover, the documents have been marked confidential pursuant to the parties’ negotiated confidentiality agreement. The objectants oppose the cross motion on the ground that the proponents have not provided good cause for departing from the Judiciary Law’s direction that judicial proceedings be open to the public.4 They assert that the proponents have not submitted an affidavit from anyone to make a factual showing to support their contention that the documents contain sensitive personal, financial or business material. They also assert that the mere fact that the parties agreed to produce certain documents pursuant to their confidentiality agreement is insufficient cause to seal them and that the proponents have themselves attached as exhibits documents labeled confidential. In addition, regarding the legal invoices, they assert that they are not privileged, citing Mehra v. Morrison Cohen LLP, 79 Misc 3d 1223[A] [Sup Ct, NY County 2023]), and, in any case, the privilege, if any, was waived when the proponents produced them. In reply, the proponents assert that the objectants are seeking an order to allow them to disregard their contractual obligations and misuse their confidential documents relating to the decedent’s and Isabelle’s relationship, their assets, health and privileged communications. They quote at length from documents produced by the objectants that purportedly show the “vile hatred” the objectants feel toward Isabelle. They also assert that they had agreed to waive their confidentiality designations with respect to the documents marked confidential previously attached to their summary judgment motion. Analysis “All court records and judicial proceedings, with certain exceptions, are considered open to public scrutiny so as to foster the efficiency and integrity of the judicial process” Matter of Lucano, 83 Misc 3d 1258[A] [Sur Ct, Queens County 2024][citing Judiciary Law §4]; see also Mancheski v. Gabelli Group v. Capital Partners, 39 AD3d 499, 501 [2d Dept 2007]). The public’s right of access, however, is not absolute. A number of statutes and court rules limit the right of access (see e.g. Domestic Relations Law §235; Public Health Law §2785[3]; Uniform Rules for Trial Cts [22 NYCRR] §202.5 [e] [mandated redaction of confidential personal information]; Uniform Rule for Surrogate’s Cts [22 NYCRR] §207.64] [same]). For purposes of the Surrogate’s Court rule, confidential personal information means (1) taxpayer identification numbers (except the last four digits); and financial account numbers (except the last four digits) (see [22 NYCRR] §207.64 [a] [1][i] and [ii]). In addition, Rule 216.1 of the Uniform Rules for Trial Courts governs the sealing of court documents and provides as follows: Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties….5 ([22 NYCRR 216.1 [a]). There is thus “a broad presumption” that the public is entitled to access court records (see Mosallem v. Berenson, 76 AD3d 345, 348 [1st Dept 2010]). “Good cause requires that ‘compelling circumstances’ exist that justify the restriction of public access to the records” (Matter of Lucano, 83 Misc 3d 1258 [A]; see Mosallem v. Berenson, 76 AD3d at 349 ["A finding of 'good cause' presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant"]; Mancheski v. Gabelli Group Capital Partners, 39 AD3d at 502 ["The party seeking to seal documents must demonstrate compelling circumstances"]). Compelling circumstances have been found in the business context where release of the documents could reveal trade secrets or threaten a business’s competitive advantage or reveal specific financial information of parties and non-parties (see Mosallem v. Berenson, 76 AD3d at 350; D’Amour v. Ohrenstein & Brown LLP, 17 Misc 3d 1130[A] [Sup Ct, NY County, 2007]; Bravia Capital Hong Kong Ltd. v. HNA Group Co. Ltd., 81 Misc 3d 1234 [A] [Sup Ct, NY County 2024]); see also Dawson v. White & Case, 184 AD2d 246 [1st Dept 1992] [plaintiff failed to show "any legitimate public concern" to counter-balance the interests of defendant law firm's lawyers and clients in keeping their financial arrangements private]). The party seeking to have documents sealed bears the “substantial burden” of establishing that compelling circumstances justify restricting public access to the documents (see Mosallem v. Bereson, 76 AD3d at 579). “Conclusory claims of the need for confidentiality are insufficient to find good cause” (Matter of Patrick, 39 Misc 3d 1212 [A] [Sur Ct, Dutchess County 2013]; Matter of Hoffman, 284 AD2d 92 [1st Dept 2001]; see also Matter of Lucano, 83 Misc 3d 1258 ["Without any alleged facts from which a likeliness of 'significant and concrete' harm may be ascertained, the court cannot find that any cause for sealing has been established"]). Moreover, the fact that the parties themselves may have agreed to the confidentiality of the documents does not constitute good cause (see Mosallem v. Berenson, 76 AD3d at 350]). In the end, good cause “boils down to…the prudent exercise of the court’s discretion” (Mancheski v. Gabelli Group Capital Partners, 39 AD3d at 502 [quoting Coopersmith v. Gold, 156 Misc 2d 594, 606 [Sup Ct, Westchester County 1992]). In exercising that discretion, “the court engages in a balancing process, weighing the potential for harm and embarrassment to the litigants and public alike” (Coopersmith v. Gold, 156 Misc 2d at 606 [vacating sealing order]). The proponents have failed to demonstrate an interest sufficiently compelling to justify overcoming the presumption of public access to court records with respect to most of the records they seek to have sealed. They have not provided any specificity or affidavits on personal knowledge to demonstrate compelling circumstances. Indeed, they simply state in conclusory fashion that the documents “contain sensitive personal, business, financial and health information” and focus instead on the objectants’ alleged desire to hurt Isabelle by publicizing private matters. However, as set forth above, court records are presumptively public, regardless of the alleged, unproven, motives of the litigants. Accordingly, the cross motion is denied with respect to Exhibits EE, FF, J, U, V, W, X, HH. In Exhibit K, the second sentence in the email from Isabelle to Bill dated Monday May 11, 2020 at 3:45 pm shall be redacted from the publicly filed document as it contains specific health information regarding a party and a non-party, and in Exhibit LL, the material in both proposals (1 and 2), which contain specific financial information, shall be redacted from the publicly filed document, and otherwise the cross motion is denied as to Exhibits K and LL. The unredacted copies of such documents shall be filed under seal. As to the firm’s invoices (Exhibits T, DD, GG, JJ, KK and MM), the proponents assert that the invoices contain (1) material protected from disclosure by the attorney-client privilege and (2) SRZ’s and the Feigens’ private financial information. Legal invoices may reveal communications protected from disclosure by the attorney-client privilege (see Licensing Corp. of Am. v. Nat’l Hockey League Players Ass’n, 153 Misc 2d 126 [Sup Ct, NY County 1992]). The proponents have not, however, indicated what portions of the invoices contain privileged material (see Elsic Trading Corp v. Somerset Marine, 212 AD2d 451 [1st Dept 1995] ["Nor are the fee statements privileged since they did not contain detailed accounts of the legal services rendered"]), nor have they specified how the legal invoices constitute private financial information (see U.S. Bank N.A. v. Lightstone Holdings LLC, 2016 NY Misc Lexis 1356 [Sup Ct, NY County] [citing Matter of Bekins Record Storage Co., 62 NY 2d 324, 329 [1984]). The court declines to grant sealing of the invoices in their entirety and will instead hold in abeyance the ruling as to the invoices to give the proponents the opportunity to specify which entries contain privileged material and/or private financial information. Within 15 days of the date of this decision, the proponents shall submit to the court a chart showing the entries or portion of entries of the invoices that they seek to redact from the public record and the basis for such redaction. The court will then assess the proposed redactions and make a final ruling on this branch of the cross motion. If the court permits redactions, counsel shall e-file the redacted copy publicly and shall file the unredacted copy under seal. This constitutes the decision and order of the court. Dated: November 29, 2024
