Thursday, April 27, 2017

Owning our story can be hard but not nearly as difficult as spending our lives running from it. Embracing our vulnerabilities is risky but not nearly as dangerous as giving up on love, belonging and joy - the experiences that make us the most vulnerable. Only when we are brave enough to explore the darkness will we discover the infinite power of our light.

The Gifts of Imperfection, Brene Brown

Monday, April 10, 2017

Opposition Brief for Defendant-Respondent Putnam County Clerk's Index # 986-12

PRELIMINARY STATEMENT                                                      1
QUESTIONS PRESENTED                                                           4
STATEMENT OF FACTS                                                              5
ARGUMENT                                                                                11
CONCLUSION                                                                            15

Cults do not like it when members leave.  They like it even less when an AWOL member publicly criticizes the practices that expose the cult's psychic tyranny and that have prompted the escape. 
Respondent Bette Leahy escaped from the cult known variously to its members as, inter alia, "Odyssey Study Group, "school" and "the work."  See
The leader – the guru – of the cult Leahy fled is Appellant Sharon Gans.  A handful of Leahy's experiences as a member of the Gans cult are recounted in her affidavit submitted below on the motions to quash at issue on this appeal.  See R. 65-74.
Like others who had left Gans – and who are named as co-defendants in the underlying action – Leahy posted comments, opinions and statements of fact about Gans and various cult members in internet blogs.  Those postings led, in fairly rapid succession, to five separate lawsuits filed against Leahy by active cult members in five separate New York counties.  None of the plaintiffs was Gans – who followed the cult litigation playbook by remaining behind the curtain.  Four of the five suits have been dismissed.  Only this frivolous defamation action, by wealthy cult member and publicly outspoken financial investor and money manager Joseph Stilwell, remains pending. 
One of the dismissed suits was filed by cult member Conrad Fischer, who resurrects himself here as Gans's "treating physician" and opines that she is far too old, far too sick, far too fragile, to withstand the rigors of a deposition.  Apparently smelling an odiferous rat, the court below exercised its discretion and discounted what it sensed – logically and appropriately – was a sham affidavit.  So, too, should this Court. 
Appellant takes 33 pages to assert the same handful of "abuse of discretion" arguments over and over and over again, as if repeating them makes them more cogent:
•that Gans is too old, sick and fragile;
•that Gans – the financing of whose luxurious apartment at New York's Plaza Hotel is the subject of Stilwell's defamation claims – knows nothing about how her residence was purchased and possesses no documents about the purchase;
•that it is Leahy – rather than Gans and her five suit-filing followers – who is engaged in a vendetta borne of "animus";
•that Leahy "admitted" her sole intention in seeking Gans's deposition was to harass her and to force Stilwell to withdraw his complaint – although the record is clear that the simple and reasonable prediction Gans would instruct Stilwell to do so was made by Leahy's counsel, who has spent more than a decade litigating against cults;
•that notwithstanding the Court of Appeals 2014 decision in Kapon v. Koch, 23 N.Y.3d, 32 (2014), the court below should have ordered Leahy to submit written interrogatories to Gans or to rely on testimony from Stilwell – whose position about the financing of Gans's apartment is implicit in his complaint – rather than compel the deposition of the only other person with first-hand knowledge of the facts;
•that instead of limiting the documents subject to subpoena, the court below authorized a “fishing expedition” – a cliché Appellant typed at least a dozen times – notwithstanding that Gans claims she has no documents that could be “fished,” and notwithstanding her failure, twice, to fulfill her obligation to demonstrate the “utter irrelevance” of those documents and instead to suggest that the obligation to make this determination fell on the court below;
•that Leahy has not produced “a scintilla of evidence” to support her assertions about Gans, Stilwell and Gans’s other followers, notwithstanding the sworn statements in Leahy’s Affidavit and exhibits (R. 65-74).
None of those challenges to the basis upon which the court below denied Gans’s motion to quash suffice to establish an abuse of discretion.  The order appealed from should be affirmed. 
Did the court below abuse its discretion in denying a motion to quash the subpoena:
·      When it found that “the Subpoena adequately provides notice of the reasons and circumstances that the information sought is required (R.3);
·      When it found that Gans had failed to “demonstrate[e] or actually stat[e] how and why this discovery is utterly irrelevant” and instead found “based upon a review of the Subpoena, the motion papers including exhibits, and the underlying court documents . . . that the requested information is relevant” (R.4);
·       When its reference to review of “the motion papers including exhibits, and the underlying court documents” (R.4) implicitly acknowledged it had made a reasonable credibility determination and rejected Gans’s and her cult-member “treating physician’s” claims about her inability to testify due to ill health.
Leahy notes at the outset that Appellant’s “Statement of Facts” is hardly that.  Instead, along with references to the record on appeal, it inserts largely irrelevant procedural history and argument.  It is peppered with alleged and often unproven factual assertions outside the record, and with self-serving rhetorical flourishes attacking Leahy (“portraying herself as a crusader,” “self-created speculative theories,” “overwhelming animus,” “vindictive comments,” “incredible claims,” “ulterior motives”).  Although several of Appellant’s facts are unproven and untrue, because they are outside the record and irrelevant to adjudication of this appeal, Leahy will not burden the Court by reciprocally ignoring the boundaries of the record to refute them.
These relevant facts should be considered on this appeal.
·      Leahy was a member of Gans’s cult for over 18 years.  R.65, ¶1.
·      Stilwell was also a member, and remains a member of Gans’s “inner circle.”  R.65-66, ¶2; R.67, ¶7.
·      Leahy gave approximately $246,000 to the cult during the years of her membership.  R.66, ¶¶4, 9.
·      As the cult’s leader, Gans “authority is unquestioned and omnipotent,” and she issues orders and instructions to her followers.  R.65, ¶1; R. 67, ¶6.
·      Leahy was sued by five cult members, including Conrad Fischer (R. 67-68, ¶7), whose “medical opinion” was submitted below to assert that it is “unbearable” for Gans to engage in even routine activities, and she could not bear the psychological and emotional strain of testifying.  R. 84.
·      Gans has a history of using medical excuses to avoid providing testimony.  R. 70, ¶14.
·      Of the five remaining claims asserted by Stilwell against Leahy, three relate to Stilwell’s role in acquisition of Gans’s apartment.  R. 81. ¶8.[1]
·      Leahy has produced documents establishing that Gans’s apartment is owned by an LLC at Stilwell’s address (R. 69, ¶12; R.72-74).  Appellant’s June 1, 2016 affidavit for the first time admits that Gans and Stilwell are partners in the LLC.  R.107, ¶2.
·      Leahy’s published comments alleged to be defamatory claim that “Joe [Stilwell] either laundered the money for her [Gans] and funneled it through a ‘corporation’ to make it legal or he paid for it outright.”  R. 69, ¶11.  Documents and testimony Leahy seeks from Gans should establish the substantial truth of that statement.  R. 25, Requests 1, 2, 4, 5, 6.  One document request in the subpoena should establish Gans’s role in orchestrating Stilwell’s lawsuit, and those brought by four other cult members.  R. 25, Request 3.  That is an appropriate request to explore, inter alia, the basis for a potential claim of frivolous litigation, and the bona fides of Stilwell’s assertion of damage to reputation.
·      The court below found that “the Subpoena adequately provides notice of the reasons and circumstances that the information sought is required (R.3).
·      The court below found that Gans had failed to “demonstrate[e] or actually stat[e] how and why this discovery is utterly irrelevant” and instead found “based upon a review of the Subpoena, the motion papers including exhibits, and the underlying court documents . . . that the requested information is relevant” (R.4).
·      The court below had placed Appellant on notice of its obligation to demonstrate “utter irrelevance” when it ruled on the first subpoena addressed to Gans.  R.39.  Further, the court stated pointedly that “Gans’s claim that she . . . has no knowledge of anything related to this lawsuit is purely self-serving.”  Id.  Nevertheless, as noted immediately above, the court held Appellant had repeated her failure to demonstrate irrelevance when she moved to dismiss the second subpoena.  R.4.
·      The court below implicitly acknowledged it had made a reasonable credibility determination and rejected Gans’s claims about her inability to testify due to ill health, and those of Conrad Ficher, her cult-member “treating physician.”  R.4.
·      •Based upon his decade-long experience in litigating against cults, and assessing the credibility of Leahy’s reports of Gans’s total control of her followers, Leahy’s counsel, rather than Leahy, predicted that an order requiring Gans to testify will end Stilwell’s lawsuit, “because Gans will order Stilwell to withdraw it.”  R. 48-49, ¶19.  Although Appellant spews the charge repeatedly, Leahy neither made any “admission of improper motivations” nor sought to depose Gans for “personal retribution,” from “visceral hatred,” “admitted hatred,” or to “blackmail” her (see, e.g., Appellant’s Brief (“App. Br.”) at 2, 3, 11, 14-15, 25, 26, 33).  Leahy seeks to depose Gans as a crucial witness to the merits of Stilwell’s defamation claims, and to explore Gans’s role in commencing and prosecuting the several suits brought against Leahy for exposing facts Gans wants to keep secret.  The subpoena’s examination topics and document requests are tailored to those issues.  R.22, 25-26.
·      Leahy did not “refuse” to depose Stilwell.  She instead sought to exercise her legal right to depose Gans first, and speculated that doing so might obviate the need to depose Stilwell.  R.47, ¶15.  From the outset, Leahy has made clear her intention to position this case for summary judgment at the earliest opportunity.  Counsel’s analysis of the outstanding claims against Leahy (see R.81), raises the prospect that nothing more than Gans’s testimony will be needed.  Gans and Stilwell have done everything in their power to postpone that day and make this litigation as expensive for Leahy as possible – including by filing this appeal.
·      Although Appellant’s brief repeatedly assures the Court that Gans has no responsive documents, Gans’s own sworn statements reveal that she has never conducted a suitable, comprehensive search, “do[es] not know” whether she possesses certain specific documents, “would not” have others to her knowledge, and thinks it “unlikely” she has any communications between her and Stilwell relating to the purchase of her apartment.  R.107, ¶3; App. Br. at 13.
·      Appellant’s counsel implicitly admitted to the court below that Gans might have communicated about Leahy, about the other lawsuits against Leahy by Gans’s followers, and with Stilwell about this lawsuit, but claimed, ipse dixit, that such communications “would not be relevant.”  R.15, ¶9.
·      Appellant’s brief repeatedly assures the Court that Stilwell has already produced all documents about this purchase (App. Br. at 13-14; see also R.16, ¶11).  However, as counsel to non-party Gans, Appellant’s counsel is in no position to make such a representation.  Nor is it accurate.  Counsel for Leahy has requested from Stilwell’s counsel copies of improperly redacted documents, and documents referred to in but to this day missing from his production.  And Stilwell has, incredibly, not produced a single communication between him and Gans on any subject.  R.47, ¶14.
·      Leahy, who was previously deposed during a jurisdictional discovery phase of this action, did not “refuse” to submit to the further deposition scheduled under an instruction by the court below.  App. Br. at 4, n.4, 32, n.9.  That instruction paralleled the requirement in the Order under appeal that Gans’s deposition “shall occur on or before June 30, 2016.”  R.9.  When Gans ignored Leahy’s several requests to schedule her deposition, Leahy adjourned her own deposition, advising Gans’s counsel that the deposition would be rescheduled she was “advised of your intentions about scheduling Gans's deposition in accordance with the Court's June 10 Order.”
·      Gans’s affidavits submitted below repetitively contend that she knows and possesses nothing relevant.  Her brief in this Court bootstraps those proclamations to argue that “[w]ild speculation without any basis in reality or a factual predicate of relevance cannot be used to support a request for discovery.”  App. Br. at 13.  But depositions are the typical, time-honored discovery tool for testing the assertions in affidavits.
As Appellant recognizes, the standard of review on this appeal looks to whether the court below abused its discretion in denying Gans’s Motion to Quash.  See Matter of Kapon v. Koch, 23 NY 3d 32, 39 (2014).  Appellant lumbers her brief, and this Court, with tens of cases that support unremarkable and wholly irrelevant propositions.  Of the scarce citations that even begin to address relevant issues, none justify a finding that the court below abused its discretion.
Justice DiBella evaluated the submissions on Appellant’s motion and the underlying court documents, and concluded that “Leahy has demonstrated that the requested discovery is material and necessary to her defense.”  R.8.  He was provided with evidence that Gans’s “treating physician” was both a member of her cult and a plaintiff who had also sued Leahy as part of a five-pronged assault intended to silence her.  So he apparently made the entirely common-sense credibility determination that Dr. Fischer’s overheated recitation of Gans’s supposed infirmities did not warrant depriving Leahy of access to a crucial witness. 
Although infrequently stated explicitly in published opinions, courts are routinely called upon to assess the credibility of documents, affidavits and assertions submitted to solicit judicial relief.  See, e.g., Tribeca Equity Partners L.P. v. Savitt, 44 Misc. 3d 1201(A) (N.Y. Civ. Ct. 2014) (holding it was not an abuse of discretion for the court to deny a party's adjournment request upon finding the proffered excuse not credible; determining that a party’s excuse for not appearing before the court was not credible, and that a party’s claimed interpretation of language in a court-ordered subpoena was not credible).
Citing to Kapon v. Koch, supra, the court below rejected Appellant’s several suggestions that Leahy rely upon alternative means of discovery –including by deposing Stilwell – to obtain the information sought by the subpoena.  The court noted Kapon’s holding (23 N.Y.3d at 38) on the requirements of CPLR 3101(a)(4), and concluded that Gans’s testimony was required because “relevant to the prosecution or defense of an action.”  R.4.  All of the cases Appellant cites at App. Br. 24-25 for the proposition that the court below abused its discretion by declining to grant a protective order or to permit written interrogatories in lieu of a deposition were decided before Kapon.
Even were the cases Appellant cites at App. Br. 27 without elaboration – to argue that the court below abused its discretion by failing to address Dr. Fischer’s extravagant claims of risks to Gans’s health – persuasively analogous to the circumstances at bar (and they are not), the court’s decision to discount Fischer’s diagnosis of Gans’s health as inherently suspect was a valid, justifiable and lawful exercise of discretion. 
Having twice failed to demonstrate below the “utter irrelevance” of the testimony and documents sought by the subpoena, Appellant attempts gamely to do so on this appeal, and futilely cites several cases stating the “utter irrelevance” standard.  But even were Appellant’s attempt in this Court untimely to demonstrate abuse of discretion below, nothing has changed.  As Justice DiBella twice found, the testimony and documents sought from Gans are not merely relevant, they are “material and necessary” to Leahy’s defense.  R.8.  Neither case Appellant cites at App. Br. 25-26, Berkowitz v. 29 Woodmere Blvd. Owners’ Inc, 23 N.Y.S.2d 352 (2nd Dept. 2016) nor Reuters Limited v. Dow Jones Telerate, Inc., 662 N.Y.S.2d 450 (1st Dept. 1997) supports a finding here that because the court below declined to “protect” Gans, it abused its discretion.  The court below rejected Appellant’s protests of overbreadth, annoyance, embarrassment and burden.  So, too, should this Court.
Finally, if the Court concludes that further deference to or consideration of Gans’s actual physical condition is warranted, we respectfully suggest it should remand to the court below, to conduct such further proceedings as it may deem appropriate, such as ordering that the deposition be taken at Gans’s bedside or that she submit to a physical examination by a physician appointed by Leahy or by the court.

The Order appealed from should be affirmed, with costs.
Dated: March 29, 2017

         Clark Guldin
         Attorneys at Law
         20 Church Street
         Montclair, New Jersey 07042
         (973) 476-5625
         242 West 36th Street, 9th floor
         New York, New York 10018

Attorneys for Defendant-Respondent


I hereby certify pursuant to 22 NYCRR § 670.10.3(£) that the foregoing appellant's brief was prepared on a computer using Microsoft Word 2016.
Type. A proportionally spaced typeface was used, as follows: Name of typeface:  Times New Roman
         Clark Guldin
         Attorneys at Law
         20 Church Street
         Montclair, New Jersey 07042
         (973) 476-5625
         242 West 36th Street, 9th floor
         New York, New York 10018

Attorneys for Defendant-Responden

[1]           One claim absurdly alleges defamation based on Leahy’s rhetorical hyperbole calling Stilwell a “snake oil salesman.”  Another asserts invasion of privacy based on a wholly unproven and refuted allegation that Leahy revealed “contents of Plaintiff’s confidential divorce agreement.”  R. 81, ¶8.