New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2007-044-559, Claim No. 113093, Motion No. M-73295


Claimant’s motion to compel denied in part due to overly broad demands and inappropriate requests for grievances, complaints and unrelated litigation against correction officers. However, defendant’s denial of claimant’s demand to review his health record on ground that demand was overly broad and irrelevant was inappropriate, and defendant was ordered to make such records available for inspection

Case Information

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 7, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim seeking recovery from the State of New York (defendant) for medical negligence and medical malpractice - defendant's failure to provide claimant with “medical boots” - which allegedly occurred during his incarceration both at Elmira Correctional Facility (Elmira) and Southport Correctional Facility (Southport). Claimant now moves to compel defendant to comply with his “request for production of documents” (demand) dated March 18, 2007, which contains 14 separate paragraphs. Defendant opposes the motion. Paragraph one of claimant’s demand seeks “any and all correspondence from Attorney General [sic] Office to Southport or (Elmira) pertaining to this claim including but not limited to any and all request [sic] made in reference to [claimant’s] medical records.” Defendant objects to disclosure of the material sought in paragraph one, contending that it is protected by attorney-client privilege. Although defendant's opposition to the request on the basis of that privilege may be appropriate, defendant has failed to provide the necessary proof thereof.[1] The Court nonetheless finds that claimant’s use of “any and all” in this demand requesting more than one item is overly broad, and in reality is an indication that claimant is conducting an impermissible fishing expedition (see MacKinnon v MacKinnon, 245 AD2d 690 [1997]; Fascaldi v Fascaldi, 209 AD2d 578 [1994]; see also Medina v State of New York, Ct Cl, June 14, 2004, Hard, J., Claim No. 106664, Motion No. M-68123 [UID # 2004-032-045]). The Court therefore denies claimant's motion to compel with regard to the material requested in paragraph one of claimant's demand.

In paragraph two of his demand, claimant seeks a specific letter dated December 14, 2006 in which the Attorney General requested claimant’s medical file from Southport.[2] Defendant again asserts that the document requested is protected by the attorney-client privilege.

CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” However, matter that is privileged or that constitutes attorney work product is absolutely immune from disclosure (CPLR 3101 [b], [c]; see generally Siegel, NY Prac § 346, at 557 [4th ed]).[3] In contrast, the attorney-client privilege does not protect every communication between an attorney and his or her client from disclosure, but rather affords protection only to “confidential communications” that are either made from the client to the attorney for the purpose of obtaining legal advice or services from that attorney, or from the attorney to the client to facilitate the provision of legal advice or services within the course of the professional relationship (see e.g. Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593 [1989]). If the item sought is material and necessary under CPLR 3101 (i.e., discoverable), the burden is on the party opposing disclosure to establish the right to protection afforded by the privilege (Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]).

Generally, the party asserting the privilege must provide copies of a privilege log or a copy of the actual document for an in camera review in order for the Court to determine whether the matter sought is privileged or constitutes attorney work product such that it is immune from disclosure (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991]). Because defendant has neglected in this instance to provide a copy of the letter in question, the Court cannot determine whether the attorney-client privilege is applicable. Counsel for defendant is accordingly directed to provide an unredacted copy of the aforementioned letter to the Court for an in camera review and determination as to whether the attorney-client privilege exempts it from disclosure. The letter shall be provided to the Court within 20 days of the date of filing of this Decision and Order.

Defendant did respond to paragraphs three and four of claimant’s demand, providing Appendix B of the New York State Department of Correctional Services Policy 4.10, page 2, concerning access to and disclosure of Health Record information. Defendant also provided copies of all of claimant’s medical records received by the Attorney General’s Office.[4]

Defendant generally objects to the material requested in paragraphs 5 through 14 as “overly broad, unduly burdensome, vague, and ambiguous.”[5] Claimant contends that defendant’s objections are without merit and that the items requested should be provided because they are clearly relevant.

In paragraph five of his demand, claimant seeks “any and all documents, files, records received in regard to this claim pertaining to [claimant’s] medical records.” Again, claimant’s use of the phrase “any and all” in this demand is overly burdensome (see MacKinnon v MacKinnon, supra; Fascaldi v Fascaldi, supra; Medina v State of New York, supra). The motion to compel is denied as it pertains to paragraph five of claimant's demand.

Paragraph six requests “any and all grievances, complaints or documents received by the defendants [Doctors] (Alves and Fowler) or their agents at Southport and Elmira concerning mistreatments [sic], malpractice, negligence, of inmates by defendants Alves and Fowler, including any memorandum, investigative files or other documents created in response to such documents.” In Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs. (73 NY2d 26 [1988]), the Court of Appeals definitively held that inmate grievances against State correction officers constitute personnel records pursuant to Civil Rights Law § 50-a, and thus may not be disclosed without either written consent or court order. Moreover, subdivision 2 of that statute provides that “[n]o such [court] order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.” Claimant's argument that these records should be disclosed states merely: “the plaintiff [sic] has information that repeated complaints about medical mistreatment of inmates have been made about these defendants and nothing has been done about them.”[6] This conclusory allegation is not, as a matter of law, a clear showing of facts sufficient to warrant this Court to request these records for review (see People v Harris, 121 AD2d 788 [1986], lv denied 68 NY2d 770 [1986]). The motion to compel is therefore denied as it pertains to that demand.

Paragraph seven of the demand seeks “any and all polices [sic], directives, or instructions to medical staff concerning the care and treatment of inmates.” This demand as written is overly broad, although claimant may well be able to narrow the scope by requesting specific items that pertain to his particular situation.

Paragraph eight seeks “all sick call request sheets from the period of Sept. 14, 2006 to the date of your response to this request.” Because paragraph eight may implicate thousands of sick call slips for hundreds of inmates, it is clearly both overly broad and unduly burdensome. Further, the demand is irrelevant to claimant’s cause of action for malpractice or medical negligence, which concerns defendant’s alleged failure to allow him to have his medical boots while housed in a Special Housing Unit. Claimant may be able to narrow the scope of this request as well.

Paragraph nine seeks production of claimant’s entire medical record. Defendant again responded with its laundry list of objections. However, claimant has the unquestionable right to inspect his entire ambulatory health record at his current facility (see 7 NYCRR 5.24 [a]).[7] Moreover, claimant may request a copy of any portion of or his entire record to which he is entitled upon payment of a reasonable fee (see 7 NYCRR 5.36; Tyree v State of New York, Ct Cl, May 6, 2002, Lebous, J., Claim No. 101474, Motion No. M-63202 [UID # 2002-019-530]). Claimant’s motion to compel with respect to this request is granted.

Paragraph 10 requests any and all documents created in response to “a grievances [sic] filed by claimant concerning [his] medical care.” As there is no date referenced, nor any description of the nature of the grievance or grievances, this demand is vague.

Paragraph 11 requests any and all documents from September 14, 2006 to date which were not already demanded that were created by defendants and concern his medical care. Given that the Court has determined that the demands in paragraphs five, seven, eight and ten are overly broad, unduly burdensome or vague,[8] it is clear that defendant should not be required to respond to this demand either.

Paragraphs 12 and 13 request the number of “civil complaints” filed in both State and Federal Courts against defendant with respect to treatment provided by Doctors Alves and Fowler, respectively. Paragraph 14 is duplicative of paragraphs 12 and 13, requesting any and all civil complaints filed in both State and Federal Courts against Alves and Fowler.

As a general rule, it is not proper “to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion” (see Matter of Brandon, 55 NY2d 206, 210-211 [1982]). While exceptions to this rule exist in certain instances where such information might be relevant to show motive, intent, absence of mistake or accident, a common scheme or plan, or identity, none of those exceptions is applicable in this instance

(see id.; see also People v Molineux, 168 NY 264 [1901]; People v Ventimiglia, 52 NY2d 350, 359 [1981]; cf. Landsman v Village of Hancock, 296 AD2d 728 [2002], appeal dismissed 99 NY2d 529 [2002] [Given the highly prejudicial nature of the proposed evidence, the plaintiff was not allowed to testify that he was motivated to bring the lawsuit because of prior police misconduct in the Village of Hancock]). This claim simply contends that claimant was the subject of negligence and medical malpractice regarding defendant's failure to provide him with medical boots. Evidence of any other unrelated litigation would not be relevant to the issue at hand.

Accordingly, claimant's request for documentation regarding any unrelated lawsuits against Alves and Fowler to establish their alleged negligence on this occasion is clearly improper (cf. Davis v Solondz, 122 AD2d 401 [1986] [where the Court ordered disclosure of the names and captions of other lawsuits against the defendant where there were allegations of unauthorized surgical work performed, and such disclosure was relevant to the issue of defendant's allegedly unlawful intent]). Claimant's motion to compel pertaining to the requests set forth in paragraphs 12, 13 and 14 is also denied.

Claimant’s motion to compel disclosure is granted to the extent that defendant is directed to provide the Court with a copy of the Attorney General’s letter requesting claimant’s medical file from Southport for an in camera review within 20 days of the date of filing of this Decision and Order, and is further directed to make claimant’s entire medical record available for inspection by him. Should claimant desire to copy any or all of the medical record, he may do so at a reasonable fee to be determined by DOCS pursuant to 7 NYCRR 5.36. The remainder of the motion is denied, without prejudice to claimant filing and serving a new demand with appropriately drawn requests.

August 7, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on April 25, 2007; Unsworn Affidavit of Samuel Davis; Brief in Support of Motion dated April 19, 2007.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 22, 2007, and

attached Exhibits A through C.

Filed papers: Claim filed on December 11, 2006; Verified Answer filed on January 8, 2007.

[1]. See the Court's discussion of the attorney-client privilege on pp 2-4, infra, and the burden of proof upon the party resisting disclosure.
[2]. It is unclear what information in the letter might be material and necessary to prosecuting this action for medical negligence or medical malpractice. It is possible, however, that claimant seeks the letter to establish that the Attorney General’s Office had obtained his medical records without authorization, and that claimant is attempting to pursue a cause of action under Davidson v State of New York (3 AD3d 623 [2004], lv denied 2 NY3d 703 [2004]). The Court notes that such a cause of action would be without merit. In Davidson, the Appellate Division, Third Department, allowed an inmate claimant to recover damages for the release of his medical records to the Attorney General’s Office, without his authorization and in violation of Department of Correctional Services’ (DOCS) regulations (7 NYCRR 5.24 former [b]). However, since the decision in Davidson, DOCS has amended that regulation to authorize the release of medical records to the Attorney General’s Office “[f]or the purpose of providing legal services on behalf of the State” (7 NYCRR 5.24 [b]). Accordingly, the release of claimant’s medical records in this case would not be in violation of the applicable regulations.
[3]. Matter that is ordinarily discoverable under CPLR 3101 (a) but which has been prepared in anticipation of litigation or for trial may be obtained only “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 3101 [d] [2]). The exemption from disclosure in that instance is not absolute.
[4]. Although defendant did provide claimant with copies of the medical records that had actually been received in the Attorney General’s Office, defendant inexplicably refused to make claimant’s entire medical record (demanded in paragraph nine) available to claimant (see infra, at n 7).
[5]. Unfortunately, counsel for defendant has asserted this “laundry list” of general objections for all remaining demands rather than choosing the objection or objections which might be most applicable to each specific demand.
[6].Claimant's Brief in Support of Motion to Compel, p 2.
[7]. In ¶ 16 of his Affirmation in Opposition to Claimant's Motion to Compel, Assistant Attorney General Roberto Barbosa states: “Claimant's request is overbroad and irrelevant. In his claim, claimant alleges that he has not been allowed to have his orthopedic shoes while in special housing unit. Defendant sent claimant's medical records relevant to this period on April 12, 2007. Therefore, the remaining documents are superfluous and irrelevant.” While counsel may be technically correct that some of the requested records may not be relevant to this particular action, claimant has every right to review his health record, and obtain copies upon payment of a reasonable fee (see 7 NYCRR 5.36). In light of claimant's pro se status and the applicable regulations cited above, defendant’s objection to this demand is surprising.
[8].Claimant’s demand for documents in paragraph six was denied as inappropriate under the existing circumstances (see pp 5-6, supra).