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Corporate Integrity Documents Privileged Under Education Law 6527 (3)

The Fourth Department determined corporate integrity documents sought by plaintiffs in a fraud and dental malpractice action were privileged under the Education Law and did not have to be disclosed:

We conclude that the court erred in determining that the requested corporate integrity documents were not privileged under Education Law § 6527 (3). [Defendant] met its burden of establishing that the corporate integrity documents sought by plaintiffs were related to the “performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program” … . Specifically, [defendant] established that the corporate integrity documents were prepared pursuant to state and federal corporate integrity agreements, which set forth procedures for the review and monitoring of the quality of care of the dental clinics. Thus, [defendant] established” that it has a review procedure and that the [corporate integrity documents] for which the [privilege] is claimed [were] obtained or maintained in accordance with that review procedure’ ” … . Contrary to plaintiffs’ contention, there is nothing in the language of section 6527 (3) limiting applicability of the privilege to agencies located in New York or records prepared in the state… . Matter of Small Smiles Litig, 2014 NY Slip Op 03080, 4th Dept 5-2-14

 

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Youthful Offender Privilege Explained/Privilege Not Waived By Denial of the Act Which Was the Subject of the Youthful Offender Adjudication in Subsequent Civil Suit

The Second Department determined the defendant’s son did not waive the privilege associated with his youthful offender status. Although defendant’s son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings.  That denial did not waive the privilege and the plaintiff could not gain access to the records of the criminal proceedings:

The youthful offender statute (CPL article 720) provides special measures for persons found to be youthful offenders, which ” emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals'” … . Thus, “[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense” (CPL 720.35[1]). Further, pursuant to CPL 720.35(2), all official records and papers concerning the adjudication are sealed. * * *

The privilege created by this statute attaches not only to the physical documents constituting the official record, but also to the information contained within those documents … . Thus, a person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made. However, the person must still answer questions regarding the facts underlying the adjudication … . * * *

Here, the defendant’s son did not waive the privilege afforded by the statute since he did not commence an action which places the conduct at issue … . The defendant did not assert counterclaims or cross claims in this action placing the conduct at issue …, and the defendant’s son did not testify as to the confidential contents of the records … . Contrary to the plaintiff’s contention, the testimony of the defendant’s son at his deposition denying that he threw the egg which allegedly struck the plaintiff’s daughter did not waive the protections of the statute … . Castiglione v James FQ, 2014 NY Slip Op 01571, 2nd Dept 3-12-14

 

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Mistakes Leading to Miscalculation of Defendant’s Sentence Privileged

The Third Department determined plaintiff's false imprisonment action against the state was properly dismissed.  Although there were errors resuliting in the erroneous calculation of defendant's sentence, the erroneous actions were privileged:

In order to state a claim for false imprisonment or unlawful confinement, claimant was required to demonstrate that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged … . As there is no dispute as to the first three elements, we are left to consider whether defendant's confinement of claimant indeed was privileged.

As the Court of Appeals recently reiterated, “[a] detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction” … .Here, regardless of the validity of the sentence actually imposed, the asserted ambiguity in the sentence and commitment order or the reasonableness of [Department of Correctional Services'] interpretation thereof, there is no question that the sentencing court had jurisdiction over claimant, and the record does not otherwise suggest that the underlying process was defective. Accordingly, we are satisfied that defendant met its burden of demonstrating that its detention of claimant was privileged. * * *

Although DOCS' determination, which was predicated upon its analysis of the relevant sentencing statutes and claimant's criminal history, proved to be erroneous, that error in judgment neither negates nor defeats defendant's claim of privilege … . Simply put, DOCS – in treating claimant's sentence as running consecutively to his prior undischarged term of imprisonment – acted in excess of its jurisdiction, not in the complete absence of jurisdiction, and its conduct therefore was privileged … . Hudson v State of New York, 516333, 3rd Dept 5-6-14

 

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Public Interest Privilege (Protecting Government Documents from Disclosure) Explained

In determining Supreme Court erred when it ordered the county to produce documents sought during discovery without reviewing them to determine the applicability of the asserted public interest privilege, the Second Department wrote:

CPLR 3101(a) broadly mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” This provision is to be liberally interpreted in favor of disclosure … . Nonetheless, a party from whom disclosure is sought may seek to prevent disclosure by properly invoking a recognized privilege. “A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery” … .”A public interest privilege inheres in certain official confidential information in the care and custody of governmental entities” … . “This privilege permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics” … . “Specifically, the privilege envelops confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged” … “The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality”… . Ren Zheng Zheng v Bermeo, 2014 NY Slip Op 00979, 2nd Dept 2-13-14

 

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Attorney’s Defamation Suit Against Client Based Upon Letters Sent to the Attorney by the Client Dismissed

In a full-fledged opinion by Justice Saxe, the First Department determined that letters written by a client to an attorney, terminating the attorney’s employment, were not actionable under a defamation theory for three reasons: the statements constituted opinion; the statements were absolutely privileged; and the statements were qualifiedly privileged.  With respect to qualified privilege, the First Department wrote:

…[T]he statements contained in defendants’ letters would be subject to a qualified privilege as communications upon a subject matter in which both parties had an interest … . “The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant [made the statement] with malice,'” which may mean either spite or ill will, or knowledge that the statement was false or made in reckless disregard of its truth or falsity … . The statement must have been made with a proper purpose, and publication must be in a proper manner and to proper parties only … .

A client’s letter to an attorney terminating the attorney’s services and explaining the client’s perceived grounds for the termination qualifies as a communication on a subject in which sender and recipient have a shared interest. Where the letter is sent only to the attorney, and access to its contents is limited to the recipient and the defendant (which includes any of defendant’s employees who assisted in its preparation), proper publication is established as a matter of law. Plaintiff’s bare allegations of malice are insufficient to prevent dismissal on this ground.

“The threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself” … . As a matter of public policy, which should protect open and honest communication between attorneys and their clients, clients must be permitted to make such claims, or complaints, directly to their attorneys, and to their attorneys alone, without threat of a lawsuit. Frechtman v Gutterman, 2014 NY slip Op 00437, 1st Dept 1-23-14

 

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Subpoena Which Could Result In Compelling a New York Reporter to Reveal Her Sources in an Out-of-State Proceeding Should Not Have Been Issued by a New York Court

In a full-fledged opinion by Judge Graffeo, with three dissenting judges, the Court of Appeals reversed the Appellate Division and held that a New York reporter (Winter) could not be subpoenaed to testify in Colorado.  Under Colorado law, it was likely the reporter would have been compelled to reveal her sources for a story about a notebook provided by James Holmes to his psychiatrist.  Holmes was the shooter in a mass shooting in a movie theater in Aurora, Colorado, during a midnight showing of a “Batman” movie.  The court determined that the public policy underlying New York’s Shield Law would be violated if the subpoena were issued and, therefore, issuance of the subpoena was prohibited:

…New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news — and their confidential sources — that has been recognized as the strongest in the nation.  And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.  * * *

It is therefore evident based on the New York Constitution, the Shield Law and our precedent that a New York court could not compel Winter to reveal the identity of the sources that supplied information to her in relation to her online news article about Holmes’ notebook.  Holmes does not argue otherwise but relies on our decision in Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (supra, 82 NY2d 521) for the proposition that, when New York functions as the “sending state” in relation to a CPL 640.10(2) application, issues concerning testimonial privilege — including the applicability of the absolute privilege afforded by the Shield Law — simply cannot be considered by a New York court.  …

CPL 640.10(2) is New York’s codification of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, which has been adopted by all 50 states. * * *

We … conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy — a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world.  Matter of Holmes v Winter, 245, CtApp 12-10-13

 

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

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Statement Protected by “Common Interest Privilege,” Tortious Interference Action Can Only Be Brought Against a Stranger to the Contract

The First Department affirmed the dismissal of a complaint alleging defamation and tortious interference with contract.  The court explained that the statement made by a management employee was protected by the common interest privilege and only a stranger to a contract can bring a tortious interference claim:

Defendant…’s statement that plaintiff was “deliberately sabotaging” defendant[‘s] IT redesign project was protected by the common-interest privilege because it constituted a communication “made to persons who have some common interest in the subject matter” …, namely, the people working on the IT system redesign. The statement is also protected as one made by a “management employee[] having responsibility to report on the matter in dispute” … . Plaintiff’s allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than “mere surmise and conjecture” … .

Plaintiff’s tortious interference claims … were also properly dismissed. “It is well established that only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract” … . Ashby v ALM Media LLC, 2013 NY Slip Op 06497, 1st Dept 10-8-13

 

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Disclosure Appropriate in Lead Paint Case, Physician-Patient Privilege Waived

In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege.  The Fourth Department determined the privilege had been waived:

In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13

 

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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