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RECORDS OF PLAINTIFF’S STAY AT A SHELTER FOR VICTIMS OF DOMESTIC VIOLENCE ARE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION AS DEEMED APPROPRIATE BY THE TRIAL COURT UPON REVIEW, DEFENDANTS ENTITLED TO PRIVILEGE LOG.

The Fourth Department determined the records of plaintiff’s stay at a shelter for domestic violence victims were not protected by privilege. The defendants in this medical malpractice action sought the records and the plaintiff’s privilege log. The medical malpractice action stemmed from treatment of injuries from an assault. The Fourth Department held that the defendants were entitled to the privilege log, which plaintiff the trial court had ordered submitted only to the court. After the defendants review the log the trial court should hear argument from the defendants concerning the discoverability of any identified documents:

… [T]he shelter records are not protected by any privilege, and they are thus subject to disclosure to the extent that they are material and necessary to the defense of the action … . Even assuming, arguendo, that the records were prepared by licensed social workers, which is not evident from the records themselves, we conclude that plaintiff waived any privilege afforded by CPLR 4508 by affirmatively placing her medical and psychological condition in controversy through the broad allegations of injury in her bills of particulars … . Inasmuch as defendants are not seeking disclosure of the street address of the shelter, we reject plaintiff’s contention that Social Services Law § 459-h precludes disclosure of the records. Furthermore, 18 NYCRR 452.10 (a), which renders confidential certain information “relating to the operation of residential programs for victims of domestic violence and to the residents of such programs,” does not preclude disclosure of the records because that regulation allows for access to such information “as permitted by an order of a court of competent jurisdiction” … . That regulation does not preclude a court from ordering disclosure of shelter records that are material and necessary to the defense of an action … .

… [W]e conclude that defendants are not entitled to ” unfettered disclosure’ ” of plaintiff’s potentially sensitive shelter records … . Indeed, we note that a court is “entitled to consider . . . the personal nature of the information sought” in making a disclosure order … . We agree with defendants, however, that the court should have directed plaintiff to provide a copy of her privilege log to them rather than directing her to provide it only to the court as an aid for its in camera review of the records. Abraha v Adams, 2017 NY Slip Op 02526, 4th Dept 3-31-17

 

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