10. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated
November 26, 2002, and filed November 29, 2002, with attached exhibits.
The Court will attempt to recite the history of the discovery and related
motion practice as it pertains to this pending motion. Claimant made an initial
demand for discovery on January 16, 2002 (hereinafter "Demand #1") that included
requests for information about an incident occurring on June 21, 2001. The
State refused to disclose the information on the grounds that the June 21, 2001
incident was not pleaded in the Claim (hereinafter "Response #1"). After
Claimant moved to compel a response, this Court agreed with the State that
Demand #1 was improper to the extent information was requested regarding the
unpled June 21, 2001 incident. (Johnson v State of New York
, Ct Cl, June
19, 2002, Lebous, J., Claim No. 104447, Motion Nos. M-64883, CM-65276 [UID No.
2002-019-533]; hereinafter "Motion #1").
Claimant then made a second discovery demand on August 6, 2002 (hereinafter
"Demand #2) seeking various personnel records but said demand did not reference
the June 21, 2001 incident. On August 26, 2002, the State refused to disclose
the personnel records (hereinafter "Response #2) and then moved for a protective
order pursuant to Civil Rights Law § 50-a and CPLR 3103. The State's
motion was denied without prejudice due to an incomplete record. (Johnson v
State of New York, Ct Cl, October 25, 2002, Lebous, J., Claim Nos. 103182 et
al., Motion No. M-65725 [UID No. 2002-019-572]; hereinafter "Motion #2").
Claimant then made a motion to amend this Claim to add the June 21, 2001
incident. This Court granted said motion. (Johnson v State of New York,
Ct Cl, August 13, 2002, Lebous, J., Claim Nos. 104447, Motion No. M-65415 [UID
No. 2002-019-557]). The Amended Claim was filed with the Clerk of the Court on
August 22, 2002. The State filed an Amended Answer on September 20, 2002.
One week later, on September 27, 2002, Claimant filed a discovery demand
entitled "Claimant's Disclosure Requests [Third]" (hereinafter "Demand #3")
seeking the same information that had been originally requested in Demand #1,
namely the information pertaining to the June 21, 2001 incident. On October 2,
2001, the State sent a letter to Claimant refusing to respond to Demand #3 on
the grounds that said request had previously been denied in Motion #1.
On November 6, 2002, Claimant filed this motion - now Motion #3 - to compel a
response to Demand #3.
The next day, November 7, 2002, the State renewed its motion for a protective
order relative to Demand #2, thus creating Motion #4. The State's renewal
motion for a protective order has been granted simultaneously herewith by way of
a separate Decision and Order. (Johnson v State of New York, Ct Cl,
________, 2002, Lebous, J., Claim Nos. 103182 et al., Motion No. M-66018).
The State opposes this motion and refuses to answer Demand #3 for two reasons.
First, the State argues that this Court previously denied Claimant's motion to
compel a response thereto in Motion #1. Second, the State argues that its
latest motion for a protective order (Motion #4) includes the information sought
in Demand #3 as well. The Court will deny Claimant's motion, albeit for
different reasons than articulated by the State.
With respect to the State's first argument, Claimant's demands were denied in
connection with Motion #1 because the June 21, 2001 incident was not pled in
this Claim at that time. This Claim has now been amended to include the June
21, 2001 incident and, as such, Claimant theoretically has a right to discovery
on that incident so long as the demands are proper in all other respects. Also,
the Court views the State's motion for a protective order in Motion #4 as
addressing different documents than those requested here. In the State's motion
for a protective order it was seeking to protect numerous personnel files. The
documents demanded in Claimant's Demand #3 do not appear to relate to personnel
files, but rather information relating to the June 21, 2001 incident. Which
leads the Court to the basis for denial of Claimant's motion. It is unclear to
this Court just what documents Claimant is requesting. Demand #3 makes vague
references to "package complete"; "letter - requested telephone print-out"; and
"computer print-out for telephone use". (Demand #3). Due to this uncertainty
this Court cannot make any determination whether such documents are material and
necessary pursuant to CPLR 3101 and/or otherwise privileged. As such,
Claimant's motion will be denied because he has failed to establish in the first
instance that the documents requested in Demand #3 are material and necessary to
the claim involving the June 21, 2001 incident and not otherwise privileged.
(CPLR 3101 & 3124).
Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion
to compel discovery, Motion No. M-66014 is DENIED.