Opinion
2006-2680
5-28-2009
STEPHANIE DUNIVAN AND JEREMY PETERSON, INDIVIDUALLY AND AS PARENTS AND LEGAL GUARDIANS OF ZACHARY PETERSON, AN INFANT UNDER THE AGE OF 14, Plaintiffs, v. NEW YORK STATE ELECTRIC AND GAS CORPORATION (NYSEG); ENERGY EAST CORPORATION (ENERGY EAST); THE VILLAGE OF HORSEHEADS (VILLAGE); AND/OR THE COUNTY OF CHEMUNG (COUNTY), Defendants.
WARD NORRIS HELLER & REIDY, LLP, Joseph Curran, Esq., Rochester, New York, Attorneys for Defendants NYSEG & Energy East Corporation SCHLATHER, GELDENHUYS, STUMBAR & SALK, Raymond M. Schlather, Esq., Ithaca, New York, Attorney for Plaintiffs Zachary & Jeremy Peterson & Stephanie Dunivan. LIPPMAN O'CONNOR, Gerard O'Connor, Esq., Buffalo, New York, Attorneys for Village of Horseheads. DAVIDSON & O'MARA, P.C., Ransom P. Reynolds, Jr., Esq., Elmira, New York, Attorneys for County of Chemung.
The defendant, New York State Electric & Gas Corporation, has moved, pursuant to CPLR 2201 and/or 5519 [c], for a stay of all proceedings in this action pending determination of its pending appeal from this Court's Decision and Order of January 2, 2009. Plaintiffs submitted papers in opposition to NYSEG's motion for a stay and have brought a cross-motion seeking to compel discovery from the defendant, New York State Electric & Gas Corporation (NYSEG), as well as an order consolidating, for discovery only, all actions arising from the underlying gas explosion of December 10, 2005.
Upon the initial return date of the above referenced motions, this Court, from the bench, denied NYSEG's motion for a stay and granted the motion seeking consolidation of all the related actions for purposes of discovery only, without prejudice to any future motion seeking consolidation for trial. Further, NYSEG was granted an extension on the time to file responding papers to that portion of the plaintiffs' cross-motion seeking to compel discovery from NYSEG.
This action arises out of an explosion that occurred on or about December 10, 2005, which completely destroyed a residence located at 714 Fox Street in Horseheads, New York.The explosion also caused personal injuries to the infant plaintiff herein, Zachary Peterson, and resulted in significant damage to other structures in the area.
The record indicates that immediately after the explosion, NYSEG assembled and/or retained certain contractors or experts to determine the cause of the explosion and to reduce the potential, if any, of further explosions. Counsel for the parties in this and various related actions learned at the deposition of Michael Eastman, an employee of NYSEG, conducted on August 28, 2008, that such contractors or experts had been retained by NYSEG and had conducted an investigation. Counsel for various plaintiffs then asked questions of Mr. Eastman regarding the individuals retained and the results of that investigation, but counsel for NYSEG refused to permit Mr. Eastman to answer various questions. Later at said deposition, counsel for the plaintiffs herein, as well as counsel for other parties in this action and the related actions, made objections on the record and requested that NYSEG produce copies of any reports received in connection with such investigation.
Having received no written response from NYSEG's counsel relative to plaintiffs' request for document production made at the deposition on August 28, 2008, by letter dated September 12, 2008, counsel for the plaintiffs herein joined in a letter sent by Attorney Matthew Whritenour to NYSEG's counsel dated September 8, 2008 which addressed the document production issue. Attorney Whirtenour represents certain plaintiffs in related actions that have been brought against NYSEG and other defendants in connection with the underlying explosion. Plaintiffs' counsel has alleged that, although NYSEG has responded to the comprehensive discovery demands that were served by the plaintiffs herein in March of 2008, it is apparent that NYSEG's responses thereto were incomplete in view of the information revealed at Mr. Eastman's deposition on August 28, 2008. Further, plaintiffs' counsel asserts that none of the documents that he requested from NYSEG during Mr. Eastman's deposition, including the reports from NYSEG's independent contractors or experts, have been produced and plaintiffs' requests are still outstanding.
Plaintiffs now seek an order compelling NYSEG to further respond to their previous discovery demands and to comply with their counsel's request for documents made at Mr. Eastman's deposition on August 28, 2008. Plaintiffs also seek an order compelling Michael Eastman to answer, at a subsequent deposition, those questions he was directed not to answer by NYSEG's counsel at his first deposition conducted on August 28, 2008.
The defendant, NYSEG, now opposes the plaintiffs' motion to compel on the grounds that 1) the reports being sought constitute expert disclosure which is limited by the provisions of CPLR 3101 [d] [1] and the reports of experts need not be disclosed, and 2) the disclosure sought by the plaintiffs herein is protected by the public interest privilege. Defense counsel had previously asserted at the August 28, 2008 deposition of Mr. Eastman that the reports referred to by Mr. Eastman were not subject to disclosure due to the attorney client privilege.
Plaintiffs contend that the information it seeks is not an expert opinion that was obtained in preparation for trial, that the public interest privilege is not applicable in this instance, and that NYSEG has effectively waived any objection to the discovery sought.
Upon review and consideration of the papers submitted, the Court has determined that the plaintiffs' motion to compel should be granted. The Court shall set forth below its reasons for such determination.
First, with respect to NYSEG's claim that the discovery sought by the plaintiffs herein is limited by the provisions of CPLR 3101 [d] [1], the record contains proof that the retention of the independent contractors or experts by NYSEG immediately after the occurrence and their subsequent investigation to determine the cause of the occurrence and rule out the possibility of further explosions was part of the regular course of NYSEG's business operations and its responsibilities under the law. Under such circumstances, any reports prepared by defendant's staff or such experts and/or independent contractors as part of NYSEG's regular course of business and prior to any litigation, are discoverable. (see, Friend v. SDTC-The Center for Discovery, Inc., 13 AD3d 827, 829; Merrick v. Niagara Mohawk Power Corp., 144 AD2d 878, 879; Crowe by Dyer v. Lederlr Laboratories, A Division of American Cyanamid, 125 AD2d 875, 876). (see also, Rosario v. North General Hospital, 40 AD3d 323; Brooklyn Union Gas Company v. American Home Assurance Company, 23 AD3d 190; Bombard v. Amica Mutual Insurance Company, 11 A/D/3d 647). Further, NYSEG has failed to meet its burden of showing that the documents sought were prepared solely for litigation. (see, Claverack Cooperative Insurance Co., v. Nielson, 296 AD2d 789). Even where there is a mixed purpose for the documents or reports requested, such materials are discoverable. (Vandenburgh v. Columbia Memorial Hospital, 91 AD2d 710,711). Moreover, the scope of review of the propriety of discovery demands is limited where the party resisting disclosure fails to timely object to the demands within the 20-day period prescribed by CPLR 3122 [a] and [b], (Coville v. Ryder Truck Rental, Inc., 30 AD3d 744;McMahon v. Aviette Agency, Inc., 301 AD2d 820; Briand Parenteau, Inc., v. Dean Witter Reynolds, Inc., 267 AD2d 576; Alford v. Progressive Equity Funding Corp., 144 AD2d 756; Anonymous v. High School for Environmental Studies, 32 AD3d 353).
Second, the Court is not persuaded that the document disclosure sought by the plaintiffs herein is protected by the public interest privilege. The public interest privilege is applied as an exception to generally liberal discovery rules and is designed to protect "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." In re World Trade Center, 93 NY2d 1, 8, quoting Cirale v. 80 Pine Street Corp., 35 NY2d 113, 117. Entitlement to the privilege requires that the agency or entity claiming it demonstrate the specific public interest that would be jeopardized by an otherwise customary exchange of information. In re World Trade Center, supra at page 8. Even if NYSEG, a private for profit corporation, could invoke the public interest privilege upon a finding that it has been granted certain quasi-governmental powers in order to assist the fulfillment of a claimed public interest goal (see, Labarbera v. Ulster County Society for the Prevention of Cruelty to Animals, 277 AD2d 672, 674), this Court finds that NYSEG has failed to satisfy its burden of demonstrating that a specific public interest would be jeopardized by disclosure of the documents sought herein. NYSEG's contention that candid and unrestrained self-evaluation and/or investigation of the incident is only possible where the results of the evaluation or investigation are protected from disclosure is speculative and is not supported by any evidence in the record. (see, Weingard v. City of New York, 9 Misc 3d 891; Butler v. City of New York, 15 Misc 3d 1134A). NYSEG has not characterized the identity of its independent contractors and experts, or the information they generated, as confidential. Nor have they offered any evidence that disclosure would prevent them from retaining any such individuals in the future or that such individuals would only be candid, or would be more candid, if the information generated from their investigation is protected from disclosure.
Further, NYSEG's position that disclosure regarding the subject investigation is permitted under the limitations outlined in CPLR 3101 [d] [1] appears to be inconsistent with its claim that the disclosure requested herein is precluded by the public interest privilege. Also, to the extent that NYSEG relies upon Cirale v.80 Pine Street Corp. as being directly on point and determinative of the plaintiffs' motion, such reliance is misplaced, since the requested disclosure in Cirale was denied because it was sought against a non-party and the plaintiff therein failed to allege special circumstances under CPLR 3101 [a] [4].
Lastly, to the extent that NYSEG seeks to oppose disclosure on the basis that the material sought is protected by the attorney client privilege, the Court notes that NYSEG has not identified any specific basis for such protection. Moreover, the attorney work product exception under CPLR 3101 [c] does not afforded protection where the material is prepared by a third person, (Salzer ex rel. Salzer v. Farm Family Life Insurance Co., 280 AD2d 844), and said privilege cannot be used as a shield to avoid disclosure of information that is not related to the rendition of legal advice. (Rossi v, Blue Cross and Blue Shield, 73 NY2d 588).
Accordingly, for the reasons set forth above, it is
ORDERED, that the plaintiffs' motion to compel disclosure is granted and the defendant NYSEG is hereby directed to produce the documents requested by the plaintiffs' counsel during Mr. Eastman's deposition on August 28, 2008. Such production shall include, but shall not necessarily be limited to the reports and/or statements of the contractors or experts that were referred to or described in Attorney Whritenour's letter to Attorney Curran dated September 8, 2008, and it is further
ORDERED, that NYSEG employee, Michael Eastman, is hereby directed to answer, at a subsequent deposition, those questions that he was directed not to answer by NYSEG's counsel at the first deposition of Mr. Eastman conducted on August 28, 2008.
This shall constitute the Decision and Order of the Court. No costs are awarded on the motion.