Non-disclosure agreements (NDAs) and matters of confidentiality regularly intersect with divorce practice. More than that, NDAs have become so commonplace they have been referred to in mainstream media as “the defining legal document of our time.”
Over the years, this author has found that when a client asks what the consequences might be of violating an NDA or a confidentiality order, there is a dearth of decisional law to draw from in New York that can provide the client with any meaningful assurances.
That changed, however, when I read Justice Kathleen Waterman-Marshall’s decision in J.N. v. T.N., 2024 NY Slip Op 51017(U) Decided on Aug. 7, 2024.
Justice Waterman-Marshall’s decision in J.N. is critical for at least three reasons: (1) It provides the client who is concerned about his/her spouse’s violation of a confidentiality order with the assurance that yes, there are indeed consequences to such behavior; (2) It provides the client who is considering playing with fire so to speak, i.e., who is considering testing the bounds of a confidentiality order, with a clear illustration of the risks attendant to that behavior; and (3) Most importantly, the J.N. decision is a reminder that court orders matter.
That conclusion—that court orders matter—may seem obvious to some. But too often, we have seen court orders flouted, without repercussions to the party violating the court order(s) often due to an overwhelmed judicial system. The result is an ever-growing base of clients who have understandably become disillusioned and doubtful that the courts will enforce their orders.
Shifting to the substance, in J.N., the wife, in a post-divorce proceeding, moved for contempt against the husband based upon violations of a so-ordered confidentiality stipulation, two court orders and the divorce judgment (which directed compliance with the so-ordered confidentiality stipulation), as a result of the husband’s disclosure of the wife’s confidential documents and information to the public on three separate occasions.
The decision explains that the husband “engaged in a campaign of harassment” against the wife “and sought to ruin her professional reputation and career by disclosing her confidential employment records.”
While the J.N. decision is public, in deference to the wife—who, having read the decision, has no doubt endured enough hardship already—I will not mention her employer by name in this article.
With that in mind, the so-ordered confidentiality stipulation “deems confidential any information and documents relating to Wife’s employment with [REDACTED] and prohibits ‘public disclosure’ of such documents and information, as well as their disclosure to anyone other than the parties, or their respective attorneys and experts in this litigation.”
The court “specifically found” that a “private evaluation report prepared about Wife’s work by her supervisors at [REDACTED], called the ‘[REDACTED] Report,’ was a document within the protection of the So-Ordered Confidentiality Stipulation.”
In finding that the wife established beyond a reasonable doubt that the husband was in criminal contempt of the applicable court orders, the decision recounts that the wife “testified clearly and consistently” that the husband “disclosed the [REDACTED] Report in June of 2022 and again in October of 2023, and the recipients…including a reporter, government officials, and [REDACTED] executives, are not ‘permitted parties’ entitled to receive confidential documents.”
The court further stated that husband’s disclosure of the [REDACTED] Report “on no less than three occasions” to a reporter, to the New York attorney general, and to the New York district attorney, as well as to [REDACTED] general counsel and global head of capital management “evidences a lack of respect for judicial orders.”
This is where the J.N. decision emphasizes that court orders matter:
There is no view of this record that could lead to any conclusion other than that Husband has willfully—indeed, brazenly and serially—disobeyed court orders, mandating a finding of criminal contempt under Judicial Law §750(3). To not find criminal contempt on this record would be to permit Husband to flout the legal process and make a mockery of the court and its lawful orders …
The court issued four separate clear and unequivocal mandates in which it prohibited Husband from disclosing Wife’s confidential information and documents to the public …
Nevertheless, post-commencement, Husband engaged in a vicious campaign to ruin Wife’s professional reputation and career, which would have the effect of undermining her ability to provide for the children. The confidentiality orders, prohibiting Husband from disclosing Wife’s confidential documents, were issued precisely to put an end to Husband’s harassing conduct and its potential harmful impact on Wife’s income. Despite the orders, Husband’s campaign continues unabated; he is singularly focused on hurting his wife (emphasis added).
Justice Waterman-Marshall aptly writes that “If a court failed to find criminal contempt on this record, it would effectively undermine its own integrity and dignity and permit Husband to continue to disrespect judicial orders with impunity.” The court held that the husband’s three violations of the confidentiality orders amounted to “multiple acts of disobedience,” resulting in the imposition of three separate 30-day sentences of imprisonment.
For those who question how a litigant could be sent to jail for violating a confidentiality order, I urge you to please do the following: 1. Read Judiciary Law Section 750(3); and 2. At minimum, read the following passages from the J.N. decision which describe the lengths to which the court went to provide the fullest extent of due process to the husband:
Husband’s conduct is shocking and cannot be left to stand without redress. At every step, the Court gave Husband due process and fair hearing.
The entire record in this matter establishes, without a shadow of a doubt, that even in his capacity as a self-represented litigant, Husband could have opposed the contempt cross-motion in writing.
Husband was afforded every protection owed to a defendant in a criminal contempt proceeding.
The Court notified Husband in each of the orders scheduling the criminal contempt hearing, that his failure to appear at the hearing would result in a warrant being issued for his arrest.
Despite all of the requisite notices; the clear admonitions that he had the right to, and should be, represented by an attorney or his own choosing…and the appointment of 18B counsel by the Court (notwithstanding the absence of a showing of indigency), Husband failed to appear at the July 18, 2024 criminal contempt hearing. Under these circumstances…the Court providently exercised its discretion and proceeded with the hearing in Husband’s absence.
At bottom, court orders establish a sense of order. The alternative is a “Wild West” scenario in New York divorce practice which runs the risk of allowing bad actors to run amok.
It is imperative that we, as divorce lawyers, champion the importance and necessity of judicial integrity. It is not “OK” to shrug our shoulders when court orders are violated.
I am not referring to, for example, inadvertently missing a document production deadline in a preliminary conference order by a negligible amount of time because you had to deal with an emergency in another case.
Instead, I am talking about the fundamental and essential premise that our judges deserve respect and appropriate deference. It is my hope that matrimonial practitioners and judges in New York will join me in recognizing that Justice Waterman-Marshall’s decision in J.N. is a reflection of the cornerstone of a judicial system that we can and should commend.
"Confidentiality Orders in Divorce Have Teeth," by Alan R. Feigenbaum, was published in the New York Law Journal on September 25, 2024.
Reprinted with permission from the September 25, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
