New York State Court of Claims

New York State Court of Claims

OHNMACHT v. THE STATE OF NEW YORK, #2008-038-612, Claim No. 112158, Motion No. M-74753


Claimant’s motion to compel discovery granted in part over defendants inadequately particularized objections. In light of institutional nature of claim, defendant may make motion for protective order.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Dennis M. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages for injuries sustained when claimant, an individual incarcerated in a State correctional facility, was allegedly assaulted by a Correction Officer at Coxsackie Correctional Facility on November 3, 2005. Claimant seeks an order compelling compliance with discovery demands that he served on July 17, 2006 and February 6, 2007. Defendant generally opposes the motion on the grounds that claimant’s discovery demands are “overbroad, insufficiently specific and particular so as to be burdensome and requiring that defendant conduct investigations and create documents as well as being potentially inclusive of privileged, security-sensitive or confidential information” (Acton Affidavit, ¶8). There exists in this State a policy in favor of broad disclosure, which requires the production of evidence that is material and necessary to the prosecution of an action (see CPLR 3101[a]; Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 407 [1968]). Thus, information that is relevant to the action should be produced (see Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843 [3d Dept 2001]). “The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant” (Marten v Eden Park Health Services Inc., 250 AD2d 44, 46 [3d Dept 1998]). A party opposing discovery bears the burden of demonstrating that the particular items sought are exempt or immune from disclosure (see Salzer v Farm Family Life Insurance Company, 280 AD2d 844, 845 [3d Dept 2001]; Sabilia v State of New York, 14 Misc 3d 1228[A] [Ct Cl 2007]). Defendant does not argue that a different standard for disclosure applies to this claim that arises in the context of a correctional facility or because of the nature of the claim.

The specific items that claimant seeks by way of this motion, and defendant’s objections thereto, will be addressed seriatim. In ¶4 of claimant’s supporting affidavit, he complains of defendant’s failure to produce “all documents relating to the investigation by the NYSDOCS Inspector General’s office and/or its agents, employees or representatives into the events alleged in the claim.” Defendant opposes this demand on that ground that it “could include privileged or confidential documents, e.g., medical records and requests for office supplies. It must be drafted more specifically, e.g. type of document, date and/or time frame, purpose and relevance, etc.” (Acton Affidavit, ¶ 9).[1] Claimant’s demand is not, in the view of the Court, drafted too generally – it adequately informs defendant that claimant seeks any documents that were generated in relation to the Inspector General’s investigation. Defendant’s objection that the demand seeks information that could include privileged or confidential documents is insufficient to require non-disclosure. The documents claimant demands within ¶ 4 of his affidavit are within defendant’s control, and should be produced. However, given the institutional context of this claim, defendant may make an assertion of privilege or confidentiality in a motion for a protective order.
Claimant next seeks production of “all information, records or reports relating to state-wide regulations on the use of physical force by corrections officers against inmates in their custody, care and control, including but not limited to, NYSDOCS Directive 4944, any supplements, memoranda or materials which constitute factual material, instruction to staff, final agency policy determination and the implementation thereof, in effect on or about November 3, 2005 at Coxsackie Correctional Facility” (Ohnmacht Affidavit, ¶ 5). Defendant objects to production of such documents because “common sense reveals that making such information available to inmates would give them the advantage of knowing what correctional officers can and cannot do in certain situations and would include within its scope among other things past directives no longer in use” (Acton Affidavit, ¶ 10). Again, this generalized objection, seemingly on the grounds of security concerns, is inadequate to defend a motion to compel, particularly because defendant has asserted the defense that the correction officers were not acting within the scope of their employment when the alleged assault occurred (see Verified Answer, ¶ Eighth). Upon locating and review of the documents sought by claimant, if defendant remains of the view that its security concerns are valid, defendant may move for a protective order, with a copy of the documents submitted as an exhibit for in camera review. Defendant’s objection on the ground that documents sought by claimant may no longer be “in use” is unclear. Claimant’s demand is clearly limited to documents that were in effect on or about November 3, 2005. To the extent defendant is unable to locate expired documents within its records, defendant may submit to the Court an affidavit explaining the unavailability of such documents.

Paragraph 7 of claimant’s affidavit seeks “the New York State Department of Correctional Services Employee Manual, as issued to corrections employees and in effect on November 3, 2005.” This request is overbroad, particularly in light of the above requests that are addressed to correction officers’ use of force.

Claimant has also requested “records concerning the medical examination and treatment of Corrections Officer Lewis, pertaining to any injuries alleged to have been sustained by said officer on November 3, 2005, as the result of the events allege[d] in the claim” (Ohnmacht Affidavit, ¶ 6). Defendant asserts only that “C.O. Lewis’s medical records ... are privileged” (Acton Affidavit, ¶ 11). Claimant demands specific information that is relevant to the claim.

These documents should be disclosed absent a motion for a protective order specifying the particular privilege asserted and setting forth the factual and legal basis for invocation of said privilege.

Claimant argues that defendant has completely failed to respond to his Combined Demand, dated January 29, 2008 (see Ohnmacht Affidavit, ¶ 8; Exhibit 1). Defendant’s opposition does not address these demands. First, claimant requests production of a “[l]etter from NYSDOCS inmates to Claimant’s family, forwarded to the Attorney General’s office in November 2005 (Exhibit 1, ¶ a). Absent opposition thereto, defendant should produce such letter(s) if they are within the possession of the Attorney General’s Office. Claimant also seeks documents relating to information on the number of complaints and incidents of use of force by C.O. M. Lewis, and on any disciplinary actions taken against him, throughout the entirety of his employment with DOCS (see Exhibit 1, ¶¶ b, c and d). Defendant shall produce such documents, or may move for a protective order asserting a specific basis for non-disclosure.

Claimant’s request for “[a]ny and all oral or written statements made by any inmates of NYSDOCS to any NYSDOCS employees or representatives regarding the incident of November 3, 2005, at any time between November 3, 2005 and the present” (Exhibit 1, ¶ e) is unopposed. These documents would be relevant to claimant’s action and should be produced, as should claimant’s final request for the name and information about an inmate who, according to C.O. Lewis, was in the holding area of the housing unit where the incident took place (see Exhibit 1 “Demand for Information”).

Accordingly, it is

ORDERED, that claimant’s Motion No. M-74753 is GRANTED IN PART, to the extent set forth in this Decision and Order, and defendant shall either serve such documents upon claimant or make a motion for a protective order as indicated above, not later than thirty (30) days after the date of filing of this Decision and Order; Motion No. M-74753 is DENIED in all other respects.

September 24, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered

(1) Claim No. 112158, filed March 31, 2006;

(2) Verified Answer, filed May 9, 2006;

(3) Notice of Motion, filed April 3, 2008;

(4) Affidavit in Support of Motion to Compel Discovery and Inspection, of David Ohnmacht, sworn to April 1, 2008, with Exhibit 1;

(5) Affidavit in Opposition of Dennis M. Acton, AAG, sworn to April 14, 2008;

(6) Reply Affirmation to Defendant’s Opposition of David Ohnmacht, dated April 27, 2008.

[1]. The Acton affidavit, when reciting certain discovery demands, refers to uniformly incorrect paragraph numbers in claimant’s supporting affidavit. The errors can be overlooked, however, because the substance of defendant’s comments clearly reveals the demands to which Mr. Acton’s comments are addressed.