ESTATE OF ROCKY H. AOKI, Deceased (08-2604/H/I) ESTATE OF ROCKY H. AOKI, Deceased (08-2604/F)
ESTATE OF ROCKY H. AOKI, Deceased (08-2604/K) — At the call of the calendar on June 28, 2024, the court resolved a motion by the guardian ad litem regarding discovery in these removal and trustee accounting proceedings in the estate of decedent Rocky Aoki. Discovery in these proceedings is being conducted jointly in anticipation of a joint trial. In the removal proceeding, the beneficiaries of the trust, two of decedent’s children, Devon Aoki and Steven Aoki, seek permanent removal of Keiko Ono Aoki as Trustee, whom the court suspended, pending a trial, based on evidence of waste and mismanagement (Matter of Aoki, 2020 NY Slip Op 30780[U] [Sur Ct, NY County, Mar 11, 2020]). In the accountings, Keiko, as Trustee, seeks judicial settlement of her accounts, to which Devon and Steven have objected. A guardian ad litem (GAL), representing the interests of certain infant remainder beneficiaries of the Trust in these proceedings, has joined Devon and Steven as objectant to her accounts and in seeking her permanent removal. The long and contentious history of this estate is detailed in other decisions and will not be repeated here. For present purposes, the parties are attempting to conclude document discovery in order to complete depositions. After Keiko interposed advice of counsel as a defense in these proceedings, there were numerous challenges to Keiko’s withholding of documents based on claims of privilege. To expedite resolution of the parties’ many discovery disputes, the court referred the parties on their consent to a referee to hear and determine privilege and related discovery disputes, and the Referee issued a 90-page decision and order on April 12, 2024. The motion before the court was that of the GAL who sought to vacate the portion of the referee’s April 12, 2024, decision and order that concerns 105 emails withheld from production by Keiko on the grounds that they were covered by the attorney work-product privilege (see CPLR 3104[d]). That motion was granted only to the extent of referring the 105 emails withheld to the Referee for in camera review to ascertain if they in fact contain attorney work product (see Spectrum Systems Int’l Corp. v. Chemical Bank, 157 AD2d 444 [1st Dept 1990]; see also Cynthia B. v. New Rochelle Hosp. Medical Ctr., 60 NY2d 452 [1983] [to balance competing claims, the court noted that inspection in camera is advisable]). If, upon such review, the Referee determines that a particular email is not attorney work product, it should be disclosed. The GAL’s motion was otherwise denied because the GAL failed to establish that the Referee’s decision was clearly erroneous or unsupported by the record (Surgical Design Corp. v. Correa, 21 AD3d 409 [2d Dept 2005] [referee's decision must be supported by the record]; CWCapital Cobalt v. Ltd. v. CWCapital Invs. LLC, 2024 NY Slip Op 30274[U] [Sup Ct, NY County 2024] [referee's determination should not be clearly erroneous]; Gateway Int’l 360, LLC v. Richmond Cap. Grp. LLC, 2021 WL 4947029 [Sup Ct, NY County 2021] [referee's decision must be supported by evidence in the record and a proper application of the law]). The attorney work-product privilege with respect to communications is not waived, under relevant appellate authority, unless the communication or work product is actually disclosed or is viewed by a third party (see People v. Kozlowski, 11 NY3d 223, 246 [2008]; Peerenboom v. Marvel Entertainment, LLC, 148 AD3d 531, 532 [1st Dept 2017]; Bluebird Partners v. First Fid. Bank, N.J., 248 AD2d 219, 225 [1st Dept 1998]). Nothing in the record before the Referee supported the conclusion that there was actual disclosure to anyone outside the privilege. This decision, together with the transcript of the June 28, 2024 proceedings, constitutes the order of the court. Dated: December 19, 2024
