New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2007-038-537, Claim No. 111328, Motion No. M-72759


Defendant's motion for a protective order addressed to confidential Tier III testimony of mental health clinician granted

Case Information

JOEL MURRAY, #00-A-1884
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
3ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


By Decision and Order dated December 12, 2006 (Murray v State of New York, UID # 2006-038-506, Claim # 111328, M-72251), this Court granted claimant’s motion to compel disclosure of certain documents, including “[t]he complete transcript of a Tier III hearing conducted in July 2004.” However, the Court also stated that “in light of the nature of the discovery demands and the institutional context of this claim . . . if defendant is of the view that claimant’s demands seek information that is privileged or palpably improper . . . it may make a motion for a protective order” (id.). Defendant so moved, seeking a protective order preventing disclosure of, inter alia, the redacted testimony of a confidential witness at a Tier III disciplinary hearing. Defendant did not submit the transcript of that part of the Tier III hearing that it claimed was confidential, and by Decision and Order dated March 13, 2007, this Court held in abeyance a decision on that part of defendant’s motion that was addressed to the testimony of that witness. Defendant has now provided a copy of the transcript of that testimony for in camera review, permitting the Court to complete its ruling on defendant’s motion for a protective order.

The instant claim seeks damages for injuries allegedly sustained as a result of an incident at Clinton Correctional Facility during which correction officers used chemical agents and physical force to extract claimant from his cell. The testimony at issue is that of psychologist Michael Brockhues, who, as claimant was informed during the hearing, provided testimony relevant to claimant’s mental health status. Defendant asserts that Brockhues’ testimony should not be disclosed because: (1) “[t]he Department of Correctional Services has identified this portion of the testimony as ‘confidential’ in nature and has directed that it not be disclosed in discovery” (Walls Affirmation, Dec. 28, 2006, ¶ 13); (2) “departmental regulations prohibit the disclosure of the identity or the substance of the testimony given at the disciplinary hearing when an inmate’s mental health status is at issue” (id., ¶ 14, citing 7 NYCRR § 254.6 (c) (3)]); and (3) “[Brockhues’] testimony is not probative or relevant to . . . the issues of this claim . . . [because] [t]he confidential witness was not a witness to the cell extraction” id., ¶ 16).

With regard to the first and second of these reasons, although DOCS’ determination or regulation regarding the confidentiality of certain information may prevent DOCS personnel from disclosing this testimony to claimant or his representative, defendant has offered no authority for the proposition that the Court, in supervising discovery in a civil judicial proceeding such as the instant claim, is absolutely bound by a DOCS administrative determination or regulation regarding confidentiality.[1] Certainly, the administrative confidentiality of this testimony will be an important factor in the Court’s discretionary determination on the issue of disclosure, but it is not controlling. With respect to the contention that the testimony is not probative or relevant because the witness was not present at the cell extraction, defendant itself recognizes that the testimony of psychologist Brockhues was sought because claimant’s mental status was germane to the issues raised in the Tier III hearing, and specifically, claimant’s refusal to exit his cell. Manifestly, claimant’s mental status – and thus, the mental health practitioner’s testimony related thereto – is also relevant to his claim that the correction officers used excessive force at the time of the cell extraction.

As discussed in this Court’s initial decision on defendant’s motion for a protective order, such an order may be issued to prevent discovery of information that is privileged or palpably improper (see American Exp. Equipment Finance Corp. v Mercado, 34 AD3d 880 [3d Dept 2006]). As pertinent to this claim, a discovery demand is palpably improper if it seeks information that is confidential and does not appear to be relevant to the issues in the case (see Saratoga Harness Racing Inc. v Roemer, 274 AD2d 887, 889 [3d Dept 2000]; Briand Parenteau, Inc. v Dean Witter Reynolds, Inc., 267 AD2d 576, 577 [3d Dept 1999]), or, in the context of correctional facilities, could compromise facility security (see Williams v State of New York, UID # 2005-032-005, Claim # 108088, Motion Nos. M-69514, CM-69536, Hard, J. [Feb. 8, 2005]; Rodriguez v State of New York, UID # 2005-009-063, Claim # 107936, Motion No. M-70419, Midey, J., Dec. 13, 2005]). It is well established that determinations on motions for protective orders are a product of the court’s broad discretion in supervising discovery and disclosure (see Fox v Fox, 309 AD2d 1056, 1057 [3d Dept 2003]; Matter of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910, 912-913 [3d Dept 2001]).

The Court has conducted an in camera review of the transcript of the testimony of Brockhues, and has considered the substance thereof, the parties’ contentions, the cited regulation (7 NYCRR § 254.6 [c] [3]), and the case law regarding discovery and protective orders, and concludes that the motion for a protective order should be granted. As noted above, the Court is not bound by the determination of DOCS that the confidential testimony should not be disclosed, but that view is persuasive, for several reasons. First and foremost, Brockhues was specifically informed that his testimony regarding claimant’s mental status was cloaked with confidentiality. The purpose in offering confidentiality to such testimony is manifest: to permit mental health clinicians to testify freely, honestly and candidly without fear of personal reprisal or undermining of the clinical relationship with the inmate. To order disclosure of Brockhues’ testimony would undermine the trust that he placed in the inmate disciplinary process (i.e., he gave candid testimony in exchange for confidentiality), and would likely have a chilling effect on future testimony by mental health witnesses in such hearings (including Brockhues), thereby undermining the inmate disciplinary process itself. Additionally, disclosure of the testimony would subvert the integrity of the DOCS regulation and institutional reliance upon it. The Court’s review of the testimony reveals that it will be of limited probative value to claimant in the prosecution of the instant claim, and thus, the Court concludes that value to claimant of the disclosure of Brockhues’ testimony is far outweighed by the negative effect its disclosure would have upon Brockhues and the disciplinary procedures and proceedings employed by DOCS.

Accordingly, defendant’s motion for a protective order preventing disclosure of the confidential portion of the Tier III hearing conducted on July 5, 2004 is GRANTED.

June 1, 2007
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Claim # 111328, filed Sept. 2, 2005;

(2) Notice of Motion, dated December 28, 2006;

(3) Affirmation in Support of Michele M. Walls, AAG, dated December 28, 2006, with exhibits A-E, and including Defendant’s Response to Claimant’s Demand for Production of

Documents, filed September 15, 2006;

(4) Claimant’s Reply to Defendant’s Motion for a Protective Order, dated January 2, 2007, with

“Mental Health Release Form”;

(5) Decision and Order, dated December 12, 2006;

(6) Decision and Order, dated March 13, 2007;

(7) Confidential Testimony of Michael Brockhues, submitted for in camera review.

[1]. The Court notes that defendant’s contention that 7 NYCRR § 254.6 (c) (3) prohibits disclosure of the identity of a confidential witness is not supported by the regulation, which does not address disclosure of the identity of witnesses but merely states that the witness shall be interviewed “on a confidential tape.” Indeed, it appears that it was the hearing officer for the Tier III hearing who informed claimant of Brockhues’ identity.