Opinion
# 2014-038-548Claim No. 122197Motion Nos. M-84753M-85111Cross-Motion No. CM-85343
10-01-2014
JOHN H. WHITE v. STATE OF NEW YORK
JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General
Synopsis
Claimant's motions to compel production of discovery materials granted in part; defendant's cross motion for a protective order denied.
Case information
UID: | 2014-038-548 |
Claimant(s): | JOHN H. WHITE |
Claimant short name: | WHITE |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122197 |
Motion number(s): | M-84753, M-85111 |
Cross-motion number(s): | CM-85343 |
Judge: | W. BROOKS DeBOW |
Claimant's attorney: | JOHN H. WHITE, Pro se |
Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | October 1, 2014 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges a plethora of wrongdoing by defendant's employees, including that correction officers threatened claimant and induced other inmates to assault him, that they denied his requests for protective custody, that other inmates came into possession of claimant's personal property including legal papers, and that they have not provided him with medical treatment for injuries sustained in assaults. Claimant moves to compel responses to discovery demands in two separate motions (M-84753 and M-85111). Defendant opposes claimant's motions and cross- moves for a protective order (CM-85343), which claimant opposes.
MOTION TO COMPEL (M-84753)
Claimant seeks an order compelling defendant to produce " 'To/From' communications &/or Counselor Quarterly Sheets" (Affidavit of John H. White, sworn to February 19, 2014, at ¶ 14). Appended to defendant's opposition papers is a copy of a December 16, 2013 letter, in which, as pertinent to this motion, claimant made the following document demands:
"I request all interdepartmental communications commenced on or around December 21st, 2012 involving defendants [sic] advisements concerning the attack upon my person. In essence, I demand that all memorandums shared between defendants [sic] concerning the matter be turned over within thirty days. I further request all counselor-quarterly records within (8) months of the proximity of the incident, not excluding all communications authored by all defendants involving my security as an overall topic discussed & decided amongst personnel since 1/12/09 throughout incident date."
(Hall Affirmation, March 26, 2014, Exhibit A). In its January 9, 2014 response to claimant's request, defendant objected to the portion of the demand that sought memoranda on the ground that it did not understand what claimant was seeking, but turned over two "To/From" memoranda dated December 21, 2012 regarding an altercation that claimant had on that date, and objected to the portion of the demand that sought counselor quarterly records on the ground that it did not understand the demand and that it was overly broad and unlikely to lead to discoverable evidence (id. at Exhibit B).
Claimant argues that the requested documents are relevant proof that defendant's agents had been notified of claimant's concerns regarding his personal safety. Defendant argues that with regard to that portion of the demand that seeks memoranda, it "appropriately objected based upon the lack of clarity in the Demand" and that it provided claimant with "To/From" memoranda that relate to the allegations contained in the claim (id. at ¶ 4). To the extent that the demand is clear, the Court agrees that defendant has satisfactorily responded to it by producing the "To/From" memoranda.
Defendant asserts that the portion of the demand that seeks counselor quarterly records within eight months of the incident lacks clarity, and that the demand seeks documents that are not material and relevant to the claim and unlikely to lead to the disclosure of relevant evidence insofar as it seeks records going back eight months. Nevertheless, defendant has submitted for in camera review three counselor reports for the periods of: (1) February 7 to May 1, 2012 (Review No. 1284703270); (2) May 2 to August 27, 2012 (Review No. 1284705711); and (3) August 28 to November 1, 2012 (Review No. 1284708126). In its cross motion for a protective order, defendant states that these three reports were erroneously transmitted to claimant in unredacted form in opposition to his motion No. M-84753, as well as to the Court for in camera review, and thus, claimant's motion to compel production of these records is moot (see Hall Affirmation, July 3, 2014, at ¶ 14). However, claimant has demonstrated that the documents he received did, in fact, contain redactions (see White Correspondence, dated May 15, 2014, ¶ 3, Exhibit A and B), and he demands production of unredacted versions of the three reports (id. ¶ 4). Upon in camera review of these documents, the Court finds defendant's stated objections to be without merit, and that claimant is entitled to disclosure of the unredacted reports. Accordingly, motion No. M-84573 will be granted in part, and defendant will be directed to produce the three quarterly reports without redactions.
The Court is not persuaded by defendant's counsel's conclusory argument that the information in the redacted portions of the records is not likely to lead to discoverable information and privileged.
MOTION TO COMPEL (M-85111)
Claimant seeks an order compelling defendant to produce certain documents that were requested in two document demands made in February and March 2014, and to return to claimant a video that he was permitted to view in March 2014.
As relevant to claimant's motion to compel, claimant on February 18, 2014 made a discovery demand that requested:
"5.) Letters written & [r]eceived by addresse [sic]; i.e., letter to Fischer, Roy and Van Buren dated (10-17-12); Letter to Greenizen, Rock, Uhler, Fischer, Traynor, Roy & Dir. of Class/Movement NYSDOCCS [Department of Corrections and Community Supervision] dated (11-1-12); Letter to Fischer & Dir. of Class/Movement NYSDOCCS dated (11-8-12); Letter to Roy dated (11-9-12) Letter to Fischer & Dir. of Class/Movement dated (11-23-12); Letter to Fischer dated (11-30-12); Letters to Bellnier dated (11-26-12) and (12-20-12); Letter to Uhler & Fischer dated (1-4-11).
6.) Medical Records beginning on (12-21-12) throughout present day of which mentions injury form and subsequent treatment issued daily &/or prescription medications issued; not excluding mental health records of same period."
(Affidavit of John H. White in Support, sworn to May 12, 2014, Correspondence of John H. White, dated February 18, 2014; Hall Affirmation, July 3, 2014, Exhibit L). On May 9, 2014, defendant responded to claimant's demand by: (1) disclosing three letters written by claimant to correction officials on October 17, November 8 and November 30, 2012 in response to the demand in item 5, and indicating that it was unable to locate the other letters requested by claimant; and (2) objecting to the demand in item 6 as being overly broad, burdensome and irrelevant, but advising claimant that he could access his medical records that are maintained by defendant by submitting a written request to the Inmate Records Coordinator (IRC) at his facility, and that copies would be provided upon the payment of a fee (Hall Affirmation, July 3, 2014, Exhibit L, at Defendant's Third Discovery Response).
Claimant argues without elaboration that defendant's failure to locate the other letters requested by claimant in item 5 is "fraudulent" (White Affidavit in Support, sworn to May 12, 2014, at ¶¶ 6-7). The Assistant Attorney General responds that despite good faith efforts, defendant has not located the letters, and that there is no prejudice to claimant since he authored the letters that he seeks disclosure and presumably received any responses thereto (Hall Affirmation, July 3, 2014, at ¶¶ 21-22) . It is axiomatic that a party cannot be compelled to turn over records not in its possession, and claimant's conclusory and speculative assertions of fraud do not persuade the Court that defendant possesses the letters claimant seeks.
Claimant also argues that he is entitled to disclosure of his medical records, which he contends defendant failed to disclose. Claimant also argues that he requests "records in [the] possession of OMH [Office of Mental Health] that were created by personnel in response to all interviews commenced during & prior . . . to my written concerns & denied assistance yet I was interviewed by OMH on several occasions relevant to such time frame of occurence [sic] & occurrence [sic] effect upon me" (White Affidavit in Support, sworn to May 12, 2014, at ¶ 13). In opposition, defendant argues that it advised claimant in its response to his demand that his medical records could be reviewed by him, along with the proper procedure for reviewing the records. Defendant also objected to claimant's request to review OMH records that were created in response to the assault on claimant on December 21, 2012, arguing that such a request was not part of the demand made on February 18, 2014. "It may be sufficiently compliant with a disclosure demand for a party to make documents available for inspection and copying, and where documents are available for inspection and copying upon request of a person incarcerated in a correctional facility, the defendant need not be compelled to take further steps to produce them" (Johnson v State of New York, UID No. 2011-038-555 [Ct Cl, DeBow, J., Sept. 13, 2011] [internal citations omitted]). Claimant makes no argument why defendant's response directing him to the IRC for his medical records is inadequate, or that he made a request that was denied, and thus, defendant will not be compelled to produce claimant's medical records. Further, claimant's request that he be given access to OMH documents that were created in response to the assault will be denied because, while his February 18, 2014 demand requested his medical records including his mental health records, he has not demonstrated that he made a discovery demand for records created by OMH in response to the assault, or that any such request was denied (see CPLR 3124). To the extent that claimant is seeking an order compelling defendant to provide copies of his medical records free of charge, defendant is not liable for the costs of photocopying documents that are sought pursuant to a discovery request (see Shell v State of New York, 307 AD2d 761, 762 [4th Dept 2003], lv denied 1 NY3d 505 [2003]; Civil Rights Law §§ 79 [3] and 79-a [3]).
Claimant also moves to compel defendant to produce documents in response to a March 5, 2014 discovery demand asking defendant to:
"locate each interdepartmental memo &/or correspondence, e-mail, etc. commencing as to P.I.B. [Office of the Attorney General Public Integrity Bureau] complaint # 12-2326 addressed to the NYSDOCCS (I.G. Marra) I.G. offices on or around (December 3, 2012), & all communications held between the I.G. offices to facility personnel."
(White Affidavit in Support, sworn to May 12, 2014, appended correspondence of John H. White, dated March 5, 2014). Although claimant has submitted an affidavit of service of the March 5, 2014 discovery demand, defendant maintains that it cannot locate the demand, and summarily asserts that it would object to disclosure of any responsive documents on the grounds of privilege and security privilege. Inasmuch as defendant cannot locate the demand and has therefore been unable to explicate its objections, the Court will not compel defendant to produce the documents sought in the March 5, 2014 demand. However, because defendant is in possession of that demand as an exhibit to claimant's motion, defendant will be directed to respond to the demand.
Finally, on December 23, 2013, claimant requested "all videos of 12/21/12 beginning on start of incident through conclusion of separation & medical" (Hall Affirmation, July 3, 2014, Exhibit K). On February 25, 2014, defendant responded to claimant's request:
"Pursuant to DOCCS Directives, Policies and/or Procedures which prevents claimant from possessing any videos, defendant cannot provide claimant with a copy of any videos. Additionally, to the extent that claimant is requesting a video pertaining to another inmate, defendant objects to this Demand based upon DOCCS Directives, Policies and/or Procedures which prevents claimant from possessing videos of another inmate. Claimant may be provided an opportunity to view the video pertaining to him only on 12/21/12 by making a written request to the IRC. Once the IRC has been contacted and claimant has made the request, absent any other prohibitions, arrangements will be made for claimant to view the video. Once claimant has viewed the video, it is expected that he will sign a paper indicating the date and time that he viewed the video, identifying any witnesses present when he viewed said video."
(id. [Defendant's Second Discovery Response, ¶ 2]). Claimant viewed the video on March 12, 2014 and made notes (id. Exhibit Q). On May 8, 2014, defendant received from claimant correspondence maintaining that he was entitled to possession of the video and asking for a return of the video (White Affidavit in Support, sworn to May 12, 2014, Correspondence of John H. White, dated May 2, 2014; Hall Affirmation, July 3, 2014, at Exhibit C). Defendant replied to claimant that it had fulfilled its discovery obligations by permitting claimant to view the video and take notes, that DOCCS policy and procedures prohibited claimant from keeping a copy of the video, and that he may make further written requests to the IRC to view the video again (see Hall Affirmation, July 3, 2014, at Exhibit N [correspondence dated May 12, 2014]).
Claimant agues that he is entitled to maintain possession of the video in "the care of facility personnel stored in the administrative area" and he requests that defendant "be compelled to return the item & [that the Court] direct defendants [sic] to permit viewing for verification purposes" (White Affidavit in Support, sworn to May 12, 2014, at ¶ 18). Defendant argues that claimant does not have the ability to view the video and is not allowed to possess the video other than in his personal property, and that if he wants to possess a copy he must comply with the requirements of DOCCS Directive 2010 and pay for the costs of the reproducing the video. As implicitly conceded by defendant, claimant is entitled to a copy of the video. However, as discussed above, defendant is not liable for the costs of making copies of material sought pursuant to a discovery request. Therefore, defendant is directed to produce a copy of the video after claimant pays the reasonable costs to reproduce the video (see Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]).
Accordingly, motion No. M-85111 will be granted in part to direct defendant to produce a copy of the video upon claimant's tender of the reasonable costs of reproduction of said video.
CROSS MOTION FOR PROTECTIVE ORDER (CM-85343)
Defendant moves for a protective order denying or limiting the following discovery demands: (1) a May 2, 2014 demand, received on May 8, 2014, requesting a copy of the video he had previously viewed (as discussed above); (2) a set of written interrogatories containing six questions asked of nine state employees, received on May 19, 2014; (3) a document demand enumerating seven categories of documents sought, and a set of written interrogatories containing two questions asked of three state employees, received on May 27, 2014; and (4) a document demand enumerating four categories of documents sought by claimant, received on June 16, 2014.
CPLR § 3101 (a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution and defense of an action." However, CPLR 3103 (a) provides, in relevant part that "[t]he court may . . . on motion of any party . . . from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any such device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." "The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd. [a]) rests in the sound discretion of the court to which application is made" (Matter of U.S. Pioneer Elecs. Corp. (Nikko Elec. Corp. of Am.), 47 NY2d 914, 916 [1979]).
Defendant argues that as of the time the cross motion was made, claimant had served at least nine discovery demands and four sets of interrogatories, and it argues that the sheer volume of the demands, taken as a whole, is harassing and time consuming and that the requests are irrelevant and repetitive. Thus, while defendant does not object to the individual discovery requests in support of its cross motion, it objects to the course of discovery as charted by this pro se claimant. In opposition, claimant argues that his demands are not "borderline harassing nor repetitive" (White "Affirmation" Opposing Protection [sic] Order, at ¶ 6), and that defendant's generalized assertions failed to prove that the demands have created a hardship or are irrelevant.
Although claimant's reply papers were dated and received after the return date of the cross-motion, the Court will consider the papers inasmuch as defendant has made no objection to the papers and there appears to be no prejudice to defendant by the untimely service.
Defendant's arguments in support of the cross motion are summary and conclusory, and while the Court certainly recognizes that the persistent and voluminous discovery practices of this pro se claimant pose challenges to defendant, the Court is not prepared at this juncture to deny or limit discovery. However, the Court suggests to claimant that he attempt to take a more global approach to discovery and combine discovery demands so as to avoid a piecemeal and apparently haphazard approach to discovery, and further suggests that all discovery demands should explicitly state the type of documents he is seeking, what the substance of the document relates to, and appropriate temporal limitations.
Accordingly, it is
ORDERED, that claimant's motion No. M-84753 is GRANTED IN PART, and defendant is directed to disclose in their entirety Counselor Report Review Nos. 1284703270, 1284705711 and 1284708126, and is DENIED in all other respects; and it is further
ORDERED, that claimant's motion No. M-85111 is GRANTED IN PART, to the extent that defendant is directed to produce a copy of the video claimant viewed on March 12, 2014 after claimant's payment of the reasonable costs of reproduction of said video, and is DENIED in all other respects; and it is further
ORDERED, that defendant is directed to respond to claimant's March 5, 2014 document demand within twenty (20) days of the filing of this decision and order, if it has not already done so; and it is further
ORDERED, the defendant's cross motion No. CM-85343 is DENIED.
October 1, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 122197, filed January 2, 2013;
(2) Correspondence of John H. White, sworn to February 19, 2014, assigned motion No. M
84753, with seven unenumerated exhibits;
(3) Affirmation of Jessica Hall, AAG, in Opposition to Claimant's Motion to Compel Discovery
(M-84753), dated March 26, 2014, with Exhibits A-C;
(4) Notice of Motion to Compel (M-85111), filed May 14, 2014;
(5) Affidavit in Support and Memo of Law of John H. White, sworn to May 12, 2014,
with seven unenumerated exhibits;
(6) Correspondence of John H. White, dated May 15, 2014, with Exhibits;
(7) Notice of Cross-Motion (CM-85343), dated July 3, 2014;
(8) Affirmation of Jessica Hall, AAG, in Opposition to Claimant's Motion to Compel Discovery
and Cross-Motion for a Protective Order, dated July 3, 2014, with Exhibits A-Q;
(9) "Affirmation" of John H. White Opposing Protection [sic] Order, sworn to July 21, 2014,
with Verification, sworn to July 21, 2014, and Affidavit of Service of John H. White,
sworn to July 21, 2014.