Opinion
# 2014-048-128 Claim No. 082265 Motion No. M-84246
01-28-2014
JANE DOE and JOSEPH DOE v. THE STATE OF NEW YORK
Claimant's attorney: WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP By: Benjamin F. Neidl, Esq. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
In an application seeking to unseal a portion of the post-trial proceedings in a case containing confidential HIV related information, the Court found that the post-trial proceedings were, in fact, not sealed and that, in any event, Movant demonstrated good cause for obtaining access to such records, and directed, among other things, that the Clerk of the Court provide Movant with a certain portion of the Court's file containing the information sought, which would not result in the disclosure of confidential HIV related information.
Case information
UID: 2014-048-128 Claimant(s): JANE DOE and JOSEPH DOE Claimant short name: DOE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 082265 Motion number(s): M-84246 Cross-motion number(s): Judge: GLEN T. BRUENING WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, Claimant's attorney: LLP By: Benjamin F. Neidl, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Paul F. Cagino, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: January 28, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This is an application, by order to show cause filed November 7, 2013, to unseal a portion of the court's record in this Claim. Movant, Robert Julian, was Claimants' attorney of record in this action and obtained a judgment in his clients' favor more than 20 years ago. At that time, Mr. Julian retained Dr. Alfred Saah, a medical expert who testified on behalf of Claimants at trial. According to Mr. Julian, Dr. Saah also testified at a post-trial proceeding. Mr. Julian avers that when Dr. Saah was scheduled to appear in the post-trial proceeding, Mr. Julian also consulted him in another, unrelated medical malpractice case on behalf of another law firm. The attorneys in that firm are now defendants in a legal malpractice claim arising out of the unrelated medical malpractice case, and Mr. Julian is expected to be called as a witness to testify about his consultation at the trial in the legal malpractice case. Under these unusual facts, confirmation of the date in which Dr. Saah testified in the post-trial phase of this Claim is critical to Mr. Julian's testimony, as well as to the defense in that action. Mr. Julian's attorneys sought permission to inspect and copy portions of the court's record of the Claim sufficient to demonstrate if, and when, Dr. Saah testified in the post-judgment stage of the case. Mr. Julian filed the instant application because the Clerk of the Court advised Mr. Julian's counsel that the court's record in this Claim is sealed. This Court has reviewed the record in this Claim and grants the motion in part, as discussed below.
On August 21, 1990, Claimants filed a Claim with the court, which was assigned Claim No. 81380. By Memorandum Decision dated January 4, 1991, and Order dated January 31, 1991, the Court granted Claimants' application for permission to file a late Claim, and further granted Claimants' request to use the names Jane Doe and Joseph Doe, rather than their true names, during the prosecution of their Claim. The Court ordered "all records pertaining to this litigation shall be redacted of Claimants' real names, social security numbers, and other personally identifiable information" (Doe v State of New York, Order (Corbett, J.), Motion No. M-42472 [Ct Cl Jan. 31, 1991]). On February 11, 1991, Claimants filed a second Claim in accordance with the Court's order, which was assigned Claim No. 82265 and ultimately consolidated with the earlier Claim. The consolidated Claim, which was given the 82265 Claim number, sought to recover for injuries caused in 1988 when two State correction officers refused to assist hospital staff in restraining an inmate who remained in State custody while being treated at the hospital. During staff's struggle with the inmate, an intravenous needle providing medicine to the inmate became loose and punctured the palm of Mrs. Doe, who was one of the nurses trying to coax the inmate back into bed. The needle was contaminated with the inmate's blood, and the inmate was suffering from Acquired Immune Deficiency Syndrome (AIDS). As a result of the needle stick, Mrs. Doe tragically contracted the Human Immunodeficiency Virus (HIV), and developed AIDS.
The Court granted anonymity to Claimants at the request of Mr. Julian in light of Mrs. Doe's HIV infection. While this Court is not aware of an order initially sealing the record in the case, Court of Claims Judge Corbett clearly ordered all papers redacted of Claimants' real names. However, the Court's file continues to contain copies of the original Claim, containing the true names of Mrs. and Mr. Doe, placed within various envelopes on which are typed notations such as:
This envelope contains a duplicate of the claim containing identifying information regarding the clmt. This information is being sealed by the Clerk's office to maintain confidentiality, to be opened only at the direction of the Court.(Claim No. 81380, Exhibit A) and:
This envelope contains identifying information concerning the anonymous claimant and is not to be opened unless at the direction of the Court(Claim No. 82265, Exhibit A).
In addition to redacting the names of the Claimants as ordered by the Court, the Clerk's Office appears to have deemed the original Claims to have been sealed. If there was a rationale for doing so, it is not readily ascertainable from the court's file. This oversight may have helped give rise to the assumption that the entire Claim file was sealed.
Claimants then sought an order from the Court compelling disclosure of the medical records, autopsy report and death certificate of the inmate who struggled with hospital staff. In response to that application, the Court stated:
As the indiscriminate revelation of the supporting papers now before the court, upon issuance of the proposed order to show cause, may entail improvident disclosure of confidential HIV related information, we think it more judicious to subpoena the requested information directly to court and fully consider in a separately captioned proceeding, in camera, what additional precautions must be taken to ensure due notice upon the underlying application and to consider what portions of the subpoenaed records, if any, may be safely revealed without risk of exposition of confidential HIV related information protected under article 27-F of the Public Health Law(Doe v State of New York, Interim Decision (Margolis, J.) at 3-4, Claim No. 82265, Motion No. M-43690 [Ct Cl March 8, 1991]). That decision notes, on page 2, that "[t]he Office of the Chief Clerk informs us that papers upon the earlier application to late file this claim have already been sealed." However, this Court has found no order issued prior to March 8, 1991 sealing the application for permission to file a late claim. Indeed, there appears no reason for such an order because Judge Corbett ordered all papers redacted of Claimants' true names and other identifying information. The March 8, 1991 decision further states, on pages 4-5, that:
[t]his decision shall not be sealed. We have considered the provisions of 22 NYCRR 216.1 with respect to sealing of the record upon this application [for confidential HIV related information]. We find independent authority, pursuant to section 2785 of the Public Health Law, to seal the order upon this decision and the entire record in the separately captioned discovery proceeding. The interim order to be entered hereupon will provide that it, and the separate proceeding, shall be sealed until further order of the court(Doe v State of New York, 152 Misc 2d 922, 926-927 [Ct Cl 1991]).
(id). Upon this Court's review of Judge Margolis' sealed order, also signed March 8, 1991, Judge Margolis clearly sealed all papers relating to Claimants' discovery application, sealed the separately captioned proceeding for the in camera review of the material sought, and sealed the March 8, 1991 order itself. He did not, however, seal the entire Claim file.
Judge Margolis then subpoenaed the requested records relating to the inmate, who died shortly after the incident at the hospital, for in camera review. The Court, upon finding confidential HIV related information within the records obtained, issued separate orders to show cause, on notice to the decedent's mother and the relevant record holders, demanding why the records should not be disclosed and allowing all persons an opportunity to be heard or to file objections . . . The court has had the records copied, has redacted the copies by deleting several thousand entries, and will retain the original submissions as sealed exhibits should particular references to particular health care providers or other entries be required, to be considered on a sui generis basis. The court will deem the original submissions sealed pursuant to section 2785 of the Public Health Law. The court will forward the redacted copies to the parties in this action forthwith
A trial was held before Judge Margolis in March of 1992, who found in favor of Claimants and awarded damages. While not bearing on his determination, the Court summarized steps taken to assure confidentiality of the Claimants' and inmate's identity:
Court orders have resulted in the use of assumed names for the claimants and for the subject inmate. As there was an assertion that this inmate had HIV infection, we have gone through extraordinary efforts to observe the confidences preserved by the Legislature under section 2785 of the Public Health Law (see, e.g., Doe v State of New York, 152 Misc.2d 922 ). At trial, we ordered that the inmate be called "John Smith". We had marked three exhibits which were, when necessary, shown to witnesses who knew the true names of the claimants and the inmate, to inform them of the substituted names. Thus, the transcript herein, which was made by a certified court reporter prior to electronic recording in the Court of Claims (see, L 1992, ch 55, § 414), does not contain the real names of the parties. The courtroom was open to the media, who attended each day of the trial. The exhibits, some of which are not redacted, have not been made available for public inspection(Doe v State of New York, 155 Misc 2d 286, 288 n 1 [Ct Cl 1992], mod 189 AD2d 199 [4th Dept 1993]). At the end of his decision, the Court concludes:
This decision shall not be sealed although previous orders concerning confidentiality in this matter are continued. Subject to further order of the court, the court will retain all exhibits herein. Counsel are requested to continue to use their best efforts to preserve the identity of claimants and John Smith(id. at 303).
The Appellate Division modified on the issue of damages, ultimately increasing Claimants' award.
It is clear from the record in this Claim that Judge Margolis skillfully preserved the confidential status of HIV related information of the Claimants and the inmate, without having to close the trial to the public or seal the Claim record. Subsequent to trial, Claimants moved for an order directing Defendant to post security for its obligation to make the periodic payments required by the judgment. By Decision and Order signed July 29, 1993 and filed August 12, 1993, Judge Margolis denied the application because Defendant had produced proof of the security by the return date of the motion. Curiously, however, and relevant to the instant motion, the Decision and Order also provides:
In passing, I note that previously I ordered that all the pleadings and papers filed in this action are sealed subject to further order of the court. The motion papers filed with the court on this motion will remain sealed subject to that order. Nevertheless, copies of this decision and order are not sealed and may be disseminated as counsel sees fit (Doe v State of New York, Decision and Order (Margolis, J.), Claim No. 82265, Motion No. M-48105 [Ct Cl July 29, 1993]). Despite this passing statement, that all pleadings and papers in the Claim file have been sealed, neither this Court, nor the Clerk's Office, has been able to locate an order or orders that do so. Moreover, this passing statement, by itself, is not a sealing order. Indeed, it is insufficient to seal the entire Claim record in accordance with 22 NYCRR 216.1(a), effective March 1, 1991, which provides:
Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.Here, there is no written finding of good cause for sealing the Claim file. More importantly, there appear to be no grounds for doing so in light of the thoughtful and successful efforts of Judge Margolis in protecting the identity of Claimants and the deceased inmate.
Nevertheless, in keeping with the apparent misapprehension, on October 27, 1993, Judge Margolis so ordered a Stipulation of the parties, filed November 24, 1993, which provides:
The defendant desires to use certain post-judgment motions made in this case in a training seminar for other Assistant Attorneys General concerning post trial practice in relation to CPLR 50-A and 50-B. The parties herein have no objection to the materials being used provided that the Claimants are only identified as Jane and Joseph Doe. Therefore, the parties stipulate that the prior sealing orders by this Court may be amended to allow the Defendant to use any post-judgment motions in this matter as materials in a legal training course.However, it is somewhat telling that the stipulation does not refer to any specific sealing order that prevents use of the post-judgment motions, and does not actually amend a prior order. Rather, it merely states that "prior sealing orders by this Court may be amended." In any event, this Court found in the record no amendments to prior sealing orders allowing the use of post-judgment motions, but the record contains additional post-trial motions. Claimants moved for an order declaring CPLR 50-B unconstitutional as applied (Motion No. M-46541), and for an order directing the judgment paid in a lump sum (Motion No. M-46514). By Decision and Order signed March 15, 1993 and filed March 22, 1993, the Court denied the request in M-46541 as moot in light of the Appellate Division decision, and withheld a determination in M-46514 pending a hearing (see Doe v State of New York, Decision and Order (Margolis, J.), Claim No. 82265, Motion Nos. M-86514 and M-86541 [Ct Cl Mar. 15, 1993]) . There is no reference to a specific prior sealing order or sealing of that decision and order. Claimants' additional motion for an order seeking the acceleration of outstanding payments on the judgment was also denied (see Doe v State of New York, 159 Misc 2d 83 [Ct Cl 1993]). If there was a sealing order covering the entire Claim file, one would expect to find in a published decision a reason for its publication notwithstanding a prior sealing order.
According to a later Decision and Order signed by Judge Margolis on November 19, 1993 and filed December 6, 1993, a post-judgment hearing was held on Motion No. M-46514, between August 16, 1993 and August 31, 1993, in Syracuse, New York (see Doe v State of New York, Decision and Order (Margolis, J.), Claim No. 82265, Motion No. M-46514 [Ct Cl Nov. 19, 1993]). The Decision and Order, at page 12, discusses Dr. Saah's testimony at the post-judgment hearing. There is no mention of sealing in this Decision and Order, which denied Claimants' application for a lump sum payment. The post-judgment hearing was recorded on eight cassette tapes, but not reduced to a written transcript. Based upon its review of the first tape, covering the proceedings of August 16, 1993 before Judge Margolis, this Court heard a portion of Dr. Saah's testimony recorded on August 16, 1993.
In summary, the only evidence available to this Court of the sealing of the entire Claim file is in the passing statement of Judge Margolis made in his Decision and Order dated July 29, 1993. Paper notations in the Claim record maintained by the Clerk's Office also indicate that the entire Claim file was sealed. Not surprisingly, the Clerk's electronic database also contains a notation that the entire Claim was sealed. Nevertheless, it appears that the Clerk's Office has treated the entire Claim record as sealed without having filed an order of the Court that directed the sealing of the entire Claim record consistent with Public Health Law § 2785 or 22 NYCRR 216. Therefore, this Court is constrained to conclude that the post-judgment phase of the Claim record is not sealed because it was not sealed by an order of the Court. Even if there was a filed order sealing the Court's entire record of the Claim, this Court finds that Mr. Julian and his counsel have demonstrated good cause for obtaining access to portions of the Court's record. Because of the unusual facts in this case, portions of the record will aid in the pursuit of justice in the pending legal malpractice case. The Court further concludes that the portions of the record sought by Mr. Julian can be made available without disclosure of confidential HIV related information, which is what Judge Margolis so admirably protected. Specifically, this Court would unseal the Decision and Order signed by Judge Margolis dated November 19, 1993 and filed December 6, 1993, because disclosure of this document would not disclose the identity of Claimants or the inmate, but would provide Mr. Julian with the dates of the hearing in which Dr. Saah testified, as discussed above.
This Decision and Order applies only to the court's record in this Claim relating to the post-judgment phase of the Claim because Mr. Julian's application is limited to that time frame. Therefore, there is no present need for the Court to analyze whether other portions of the Claim record are sealed.
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However, regardless of whether the post-judgment portion of the Claim is sealed or not, release of the tape recordings of the post-judgment hearing held in August of 1993 may result in the disclosure of confidential HIV related information covered by Public Health Law § 2785. Consequently, if, after receipt of this Decision and Order and the November 19, 1993 Decision and Order, Mr. Julian seeks a copy of the tape recordings, or a transcript of the recordings, he may contact the Clerk to arrange for a confidential written transcript to be provided exclusively to the Court for an in camera review and redaction as necessary to avoid any unwarranted disclosure in accordance with Public Health Law § 2785.
Accordingly, it is hereby,
ORDERED that Motion No. M-84246 is granted in part, consistent with this Decision and Order; and it is further
ORDERED that the Clerk of the Court of Claims shall provide movant with a certified copy of the Decision and Order of the Court on Motion No. M-46514, dated November 19, 1993 and filed December 6, 1993, with movant's copy of this Decision and Order; and it is further
ORDERED that the Decision and Order, dated November 13, 1993 and filed December 6, 1993 with respect to Motion No. M-46514, be and remain unsealed and available for public inspection; and it is further
ORDERED that, at the request of movant and movant's payment of necessary costs, the Clerk of the Court shall cause to be made a confidential written transcript of the tape recording of the hearing on Motion No. M-46514, or any day thereof, and provide it to the Court for an in camera review and redaction as may be required to avoid the unnecessary disclosure of confidential HIV related information; and it is further
ORDERED that the Clerk of the Court revise its paper and electronic records to reflect that this Claim file is only partially sealed and also contains confidential HIV related information which should not be released except pursuant to further order of the Court in accordance with Public Health Law § 2785; and it is further
ORDERED that this Decision and Order shall not be sealed.
January 28, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause, filed November 7, 2013;
Affirmation of Benjamin F. Neidl, Esq., dated June 3, 2013;
Affidavit of Robert F. Julian, Esq., sworn to on March 3, 2013, with Exhibits A-D;
Affirmation of Paul F. Cagino, Esq., dated November 15, 2013;
Claim file, Claim No. 82265;
Claim file, Claim No. 81380;
Motion No. M-42472.