Claimant's motion to compel disclosure is granted in part.
|Claimant(s):||MANUEL WILSON, RANDALL COLLINS, GREGORY ROSTICK, SHAFI ABDUL-JABBAR, JOHN ROZANSKI and AUSTIN TROUT|
|Claimant short name:||WILSON, COLLINS, ET AL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||MILLER & MILLER
BY: ANDREW R. MILLER, ESQ.
|Defendant's attorney:||ANDREW M. CUOMO
New York State Attorney General
BY: G. LAWRENCE DILLON, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 30, 2010|
|See also (multicaptioned case)|
The following papers, numbered 1 to 3, were read on motion by Claimants for an order compelling disclosure from Defendant pursuant to CPLR 3124:
1. Claimants' Notice of Motion, filed April 19, 2010;
2. Affirmation of Andrew R. Miller, Esq., dated April 19, 2010, with attached exhibits;
3. Affirmation of G. Lawrence Dillon, Esq., Assistant Attorney General, dated June 4, 2010, with attached exhibits.
In this action, Claimants, six inmates all confined at Riverview Correctional Facility at the time, allege that they were infected (or reinfected) with an infectious disease between March and September of 2003 when certain health care providers employed at the facility negligently failed to follow proper contagious disease protocols.
There has been an ongoing discovery dispute between the parties regarding the nature and breadth of discoverable documents in this matter. Although a recitation of the complete history is not necessary here, I do note that much discovery has taken place and I find that neither party has acted unreasonably or intentionally hindered the orderly preparation of this claim for trial.
With this motion, Claimants request that Defendant be ordered to give further and more complete responses to Claimants' July 16, 2007 demand for discovery and inspection ("D&I"). As Claimants set forth in their papers, Defendant either refused to answer completely or provided only limited responses to many of the items requested in the D&I. Defendant's responses to the items in dispute fall into three categories: 1) items for which no objection was stated but for which Defendant indicated that it was "in the process of obtaining this information"; 2) items to which Defendant objected as "voluminous and overly burdensome"; and 3) items to which Defendant has asserted a privilege. I will address each category of the disputed items in order.
In Defendant's response to Claimants' D&I demand, it asserted "Defendant is in the process of obtaining this information and will supplement this response upon receipt of the same" to items 23, 34, 42 and 44. As the demands relating to these items were served in 2007 and Defendant's responses were served in early 2009, Claimants' assertion that "[t]wo (2) years is more then [sic] adequate time for the Defendants [sic] to have investigated and gathered the necessary information" (Miller Affirmation, par. 7) is well taken. In its response to this motion, Defendant has indicated that items 23 and 34 request the production of documents which are not in its possession or control. Of course, Defendant can not be required to produce documents that are not under its control. I find, however, that to the extent Defendant has documents responsive to these demands, they should be produced for Claimants. Defendant further contends that it has already fully responded to items 42 and 44. To the extent that Defendant has produced all documents responsive to items 42 and 44, I find that its obligation has been fulfilled.
The second category of demands consists of those demands to which Defendant objected on the grounds that they were "voluminous and overly burdensome." I note, initially, that Claimants assert that because Defendant failed to object to the demands within 20 days as required by CPLR 3122(a), Defendant has "affirmatively waived all of their [sic] objections to disclosure of the requested information except for those founded upon 'privilege'" (Miller Affirmation, par. 9). Although Defendant's failure to object within 20 days does limit this Court's inquiry, the Court may still address objections related not only to privilege, but also those which assert that the requests that are palpably improper (see Saratoga Harness Racing Inc. v Roemer, 274 AD2d 887). In this regard, I note that overly broad or unnecessarily burdensome demands may be considered palpably improper (Haller v North Riverside Partners, 189 AD2d 615).
Accordingly, I will now address those items to which Defendant has objected as "voluminous and overly burdensome." These include items 27, 28, 35, 38, 41 and 43. Items 27 and 28 are related. With item 27, Claimants request that Defendant "[i]dentify and produce the complete name(s) and address(es) for each attendee at the Riverview Correctional Facilities' monthly Infection Control meetings for each meeting held from November 2002, to January 2004." With item 28, Claimants request that Defendant "[i]dentify and produce all records of and/or documents concerning the Riverview Correctional Facilities' monthly Infection Control meetings for each meeting held from November 2002, to January 2004." Defendant asserts that it has already turned over "email minutes" of these meetings, and that the names of the attendees were included in those emails, and they can be reached in care of Riverview Correctional Facility. To the extent that Defendant is in possession of other documents relating to these meetings that have not been produced, those documents should be turned over to Claimants. Defendant's response is otherwise adequate.
Item 35 requests documents or records concerning communications between Defendant and union representatives regarding the outbreak. Defendant asserts that documents responsive to this demand are not in its possession and control. While it may be true that the unions identified by Claimants may have documents that are not under Defendant's control, the request was for records of communication with union representatives. To the extent that Defendant has such documents, they should be produced to Claimants.
With item 38, Claimants have requested that Defendant "[i]dentify and produce all records of communications between the Riverview Nurse Administrator and the 'Comm. & Infect. Disease Coordinator, Central Health Services' regarding the subject scabies outbreak from November 2002, to January 2004." I find that this demand is reasonably calculated to lead to discoverable material, and it is sufficiently tailored to the time period at issue in this matter. Although Defendant has indicated that responding to this demand would be overly burdensome, it does not indicate how or why this is so. I find that, to the extent Defendant has documents related to this request, they should be produced.
Similarly, with item 41, Claimants seek records in Defendant's possession regarding Riverview Correctional Facility's Inmate Liaison Committee(s) and the subject outbreak between November of 2002 and January of 2004. To the extent such documents exist, they should be produced for Claimants.
Finally, with item 43 Claimants request that Defendant produce any documents related to the outbreak which emanated from the Committee on Infectious Disease Control Coordinator and was sent to any employee at any "Department of Corrections Facility" between November of 2002 and January of 2004. As the claim relates to inmates and events at Riverview Correctional Facility, I find Claimants' request somewhat overly broad. To the extent that the Coordinator communicated with employees at Riverview Correctional Facility concerning the outbreak during the subject time, records relating to these communications should be produced. Documents relating to communications sent to facilities or employees working at facilities other than Riverview Correctional Facility need not be produced at this time.
The final group of disputed items are those to which Defendant has objected on the basis of privilege provided by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and Civil Rights Law § 50-a. These include items: 15, 16, 17, 19, 20, 21, 22, 24, 25, 29, 30, 33, 36, 37, 39, 40, and 45.
Initially, I note that a request that requires that a patient be identified on the basis of the medical care he was receiving is in conflict with both HIPAA and CPLR 4504(a). Further, Civil Rights Law § 50-a grants a qualified privilege to personnel files maintained by Defendant and requires a Court order to obtain discovery of such documents. The threshold requirement of Civil Rights Law § 50-a(2) that "[n]o such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review" was designated to eliminate fishing expeditions for collateral matters to be used for impeachment purposes (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 568-69; Alcamo v City of New York, 253 AD2d 408).
Keeping these requirements in mind, I find that items 15, 16, 19, 21, 22, 24, 29, 36, 39 and 45 clearly request privileged information. As Claimants have failed to demonstrate how these privileged documents are necessary or even relevant to the prosecution of the claim, I find that Defendant need not respond to these items.
With item 17, Claimants request the identity of a particular "Staff RN" who allegedly failed to follow universal precautions when treating inmates during the outbreak. Although confidential documents relating to this person need not be disclosed, this person's identity should be disclosed to Claimants and this person should be made available for deposition by Claimants.
With item 20, Claimants request that Defendant "[i]dentify and produce the complete names and addresses of the 'COs' and the 'infamous RVCF three' referenced in 'Deborah Moore's' October 7, 2003, email to 'Sharon Ashley.'" As this email was neither explained nor provided to the Court for review, the Court is unaware of what Claimants are seeking with this demand. Accordingly, Claimants have failed to demonstrate any reason to compel Defendant to respond to this item.
With item 25, Claimants request the identities of attendees of a meeting concerning the outbreak which allegedly occurred on January 27, 2004. To the extent that Defendant has this information, it should be produced to Claimants.
With item 30, Claimants request documents which reference the occurrence of an outbreak among employees of Defendant at Riverview Correctional Facility between November 2002 and January 2004. While I understand that these documents may be privileged to the extent that they identify particular employees that have been infected, documents responsive to this request are also likely to contain information that is not privileged and which is relevant to this action. Accordingly, Defendant is directed to respond to this item but to redact information that identifies particular employees or inmates that have been infected.
Similarly, with item 33, Claimants request information concerning actions taken by Defendant in response to the alleged failure of its employees to use universal precautions and personal protective equipment when treating inmates suspected to be infected between November of 2002 and January of 2005. Again, Defendant is directed to respond to this item but to redact information that identifies particular employees or inmates that have been infected.
With item 37, Claimants request that Defendant produce records relating to the same January 27, 2004 meeting discussed in item 25 referenced above. I find this demand to be reasonable and see no basis for Defendant's assertion of privilege. To the extent that Defendant has documents responsive to this request, they should be produced.
Finally, with item 40, Claimants request that Defendant produce complaints or grievances which concern the outbreak at Riverview Correctional Facility and which were filed or initiated between November 2002 and January 2004. I find little relevance to this demand, apart from attempting to identify inmates and employees who have also been infected. Accordingly, Defendant need not respond to this demand.
Based upon the foregoing, it is
ORDERED, that Claimants' motion is granted in part and Defendant is directed to respond, as limited by this decision, to items 17, 23, 25, 27, 28, 30, 33, 34, 35, 37, 38, 41, and 43 of Claimants' July 16, 2007 demand for discovery and inspection, within 60 days of the filing date of this order; and it is further
ORDERED, that all further relief requested by Claimants in their motion to compel disclosure is denied for the reasons set forth herein.
September 30, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims