New York State Court of Claims

New York State Court of Claims

SIMMONS v. STATE OF NEW YORK, #2008-018-641, Claim No. 113125, Motion No. M-75011


Synopsis


Claimants brought a motion for an order compelling discovery. Defendant opposed the motion on the grounds that the documents and information sought are protected by Civil Rights Law § 50-a and the self- critical analysis privilege. In reviewing the documents in camera it is clear that they are relevant to the pending action, and there are no compelling facts which would warrant extension of the privilege in this case to preclude disclosure. Claimants’ motion is GRANTED and Defendant is directed to disclose to Claimants the information provided in camera.

Case Information

UID:
2008-018-641
Claimant(s):
TIMOTHY E. SIMMONS, SR., KATHLEEN M. SIMMONS, Individually and as Parents and Natural Guardians of DANIEL J. SIMMONS and ROBERT SIMMONS
Claimant short name:
SIMMONS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113125
Motion number(s):
M-75011
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
MacKenzie Hughes, LLPBy: Arthur W. Wentlandt, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Christopher Wiles, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 5, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants bring this motion for an order compelling discovery. Defendant provided

some of the requested information to Claimants and submitted the disputed discovery for in camera inspection. Defendant opposes the motion by letter dated June 30, 2008, on the grounds that the documents and information sought are protected by Civil Rights Law § 50-a and the self- critical analysis privilege.

The claim asserts negligence on the part of the State for injuries Claimants suffered when their vehicle was struck by a New York State Police vehicle driven by Trooper Michael J. Davis. Claimants allege the Trooper was driving at an excessive rate of speed without his emergency lights or siren activated, when he lost control of his vehicle and went into the median, and then re-entered the passing lane of the westbound New York State Thruway too fast striking Claimants’ vehicle and causing it to leave the roadway and roll over. Claimants also allege that Defendant failed to properly train and supervise Trooper Davis.

After taking the deposition of New York State Police Sergeant Nickole Merritt, Claimants demanded Defendant produce a copy of the entire State Police Investigative Report for the accident which occurred on December 27, 2005. Included in Claimants’ demand was a request for any documents relating to any disciplinary action taken against the State Trooper involved in the accident. Defendant’s primary objection lies with this demand, arguing that these records pertain to internal personnel matters and are protected by Civil Rights Law § 50-a and the self-critical analysis privilege. This privilege, Defendant argues, is to protect from disclosure documents that reflect an internal candid evaluation and potentially damaging criticism. Claimants argue that there is no self-critical analysis privilege recognized in New York State.

Defendant has provided to Claimants a copy of the New York State Police Investigation Report, which includes a two-page form report; a five-page log, detailing the investigation process; the supporting deposition of Gretchen R. Schauss with a copy of the uniform traffic ticket that was issued to her charging her with a violation of § 1128A of the Vehicle and Traffic Law; an Identification of Photographs; the supporting depositions of Kathleen Simmons, Timothy E. Simmons, Sr., Robert E. Simmons, Timothy E. Simmons, Jr., and Daniel J. Simmons; a property and personal injury damage document; the MV-104A Police Accident Report, a MV-104 Report of Motor Vehicle Accident; and a Report of Motor Vehicle Accident Police Line of Duty Accident Report; an estimate of accident damage to the State Police vehicle; the supporting depositions of Christopher McCarthy and Michael D. Powell; and a two-page police blotter type document describing the accident and identifying the injured parties. What Defendant has not disclosed are the internal memoranda and attachments relating to the investigation of this accident as it specifically pertains to Trooper Davis’s conduct and disciplinary determinations.

Civil Rights Law § 50-a provides in relevant part:
  1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state...shall be considered confidential and not subject to inspection or review without the express written consent of such police officer...except as may be mandated by lawful court order.
  1. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
  1. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.
By this motion Claimants seek an Order directing the Defendant to produce the undisclosed documents relating to the disciplinary evaluation of Trooper Davis. Defendant has voluntarily produced the documents for in camera inspection, and thus the initial inquiry required by Civil Rights Law § 50-a is not necessary. The inquiry then turns to whether the documents produced in camera are relevant and material to the action. In reviewing the documents it is clear that they are relevant to the pending action, as they involve an evaluation of the Trooper’s conduct in the accident which is the subject of the claim.

Defendant argues that the documents are also privileged under the “self-critical analysis privilege.” This common-law privilege has been recognized by some federal courts, but despite some discussion, it has not been applied in New York State based upon the Court’s and counsels’ research (see In re Crazy Eddie Securities Litigation, 792 F Supp. 197; Roberts v Carrier Corp., 107 FRD 678, Witten v A. H. Smith & Co., 100 FRD 446, affd 785 F2d 306; O’Connor v Chrysler Corp., 86 FRD 211; Wright v Patrolmen’s Benev. Assn., 72 FRD 161; Gillman v United States, 53 FRD. 316; Bredice v Doctors Hosp., 50 FRD 249 affd without opn. 479 F2d 920; Pkfinans Intern. Corp. v IBJ Schroder Leasing Corp., 1996 WL 675772; Lamitie v Emerson Electric Co.-White Rodgers Division, 142 AD2d 293; Martin A. v Gross, 194 AD2d 195; RKB Enterprises, Inc. v Ernst & Young, 195 AD2d 857). The privilege has not been readily defined but generally protects from disclosure mandated self-evaluative reports, with its purpose to encourage the candid and complete cooperation of participants and “encouraging self-improvement through uninhibited self-analysis and evaluation.” (In re Crazy Eddie Securities Litigation, 792 F Supp. 197, 205). In Lamitie v Emerson Electric Co.-White Rodgers Division, 142 AD2d 293, where the privilege although not recognized was most thoroughly discussed, the court declined to recognize the privilege and noted that courts have been highly restrictive in finding any common-law privileges deferring to the legislature. The Court in Lamitie found that the defendants had not shown any compelling circumstance including having failed to show that confidentiality in that case was essential to its critical evaluation and involvement with the overseeing agency which would warrant extending a privilege. Here the evaluations that Claimants seek are already subject to the Civil Rights Law § 50-a privilege, which precludes the immediate dissemination of an internal State Police investigation without court review. Defendant has not shown how in this case disclosure of the evaluations of the Trooper involved in this accident will chill any future internal evaluation of the conduct of individual State Troopers involved in vehicular accidents. The Trooper involved acknowledged during his deposition that the accident was investigated and found to be preventable based upon his speed. The Trooper also acknowledged that he was disciplined. In reviewing the documents in camera there are no compelling facts which would warrant extension of the privilege in this case to preclude disclosure.

Accordingly, Claimants’ motion is GRANTED and Defendant is directed to disclose to Claimants the information provided in camera.


January 5, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion

  1. Affidavit of Arthur W. Wentlandt, Esquire, sworn to May 22, 2008, in support with exhibits attached thereto.

3. Claimants’ Memorandum of Law dated May 22, 2008, in support.

4. Letter response of Christopher Wiles, Esquire, Assistant Attorney General, in opposition, dated June 30, 2008.

5. Letter response of Arthur W. Wentlandt, Esquire, dated July 8, 2008, in support.