Opinion
04CV827A.
December 22, 2005
DECISION ORDER
Before the Court are the plaintiff's motions to amend the complaint (Docket No. 18) and to compel discovery (Docket No. 26).
Background
The plaintiff, Amy J. Hallquist ("Hallquist"), was a registered nurse at the Women's Christian Association Hospital ("WCA"). She alleges that her constitutional rights were violated by the defendants in connection with her attempts to obtain custody of a child with behavioral problems. Hallquist asserts that she met a 10-year old child, identified as "Siri B", while working in the adolescent psychiatric unit at WCA and applied for custody of the child. Hallquist claims that defendants Edwin J. Miner (Chautauqua County Commissioner of Social Services) and Carol Dankert (Chautauqua County Deputy Commissioner of the Department of Social Services), as well as Drs. Frederik Verdonik and Israr Abbasi, wrongfully communicated private, privileged and confidential case information to her employer which negligently or intentionally damaged Hallquist's professional reputation. She claims that these statements "induced plaintiff's employer to form an evil opinion of the plaintiff" and to "form an opinion that plaintiff's alleged unethical behavior reflected negatively on the employer." (Proposed Amended Complaint at ¶¶ 21-22). Further, Hallquist asserts that these statements caused her employer to advise her that she would not be considered for promotions, and that she was demoted. (¶ 22-23). She also claims that she was forced to "continuously walk the unit" which aggravated a preexisting (unrelated) back injury resulting in her placement on disability and, according to the plaintiff, her eventual "constructively discharge" by WCA on November 7, 2003. (¶ 23).
Motion to Amend
The plaintiff had originally named various John Does and Jane Does as defendants in this case. The plaintiff seeks to amend the complaint to add Carol Dankert (who is the Deputy Commissioner of Chautauqua County Department of Social Services); and Dr. Frederick Verdonik and Dr. Israr Abbasi as defendants in this case.
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, "leave [to amend] shall be freely given when justice so requires." In the instant case, the defendants oppose the motion on the ground that the amendment is futile. Leave to amend "should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178 (1962)) (emphasis added). A court measures futility under the same standard as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Nettis v. Levitt, 241 F.2d 186, 194, n. 4 (2d Cir. 2001); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). In considering such a motion to dismiss, the Court accepts as true the plaintiff's factual allegations and draws all reasonable inferences in favor of her. Board of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 (2d Cir. 2002). "Dismissal is not appropriate `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle [her] to relief.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
The defendants oppose the addition of Dankert on the grounds that her deposition revealed that she had no involvement in the matter. However, Dankert's involvement presents a question of fact. At this stage, the Court must assume the plaintiff's allegations as true. The defendants have not articulated a basis to deny the plaintiff the ability to amend the complaint to add Dankert.
The defendants also oppose the addition of the Dr. Verdonik and Dr. Abassi primarily to the extent that the proposed amended complaint asserts the doctors are employees of Chautauqua County. The defendants do not appear to dispute that the doctors could be named as defendants in their individual capacity, and not as employees of Chautauqua County. (Docket No. 19 at ¶¶ 22-23). The defendants have not articulated a basis to deny the proposed amendment under the liberal treatment to be afforded under Rule 15. The Court need not determine whether Dr. Verdonik or Dr. Abassi are employees of Chautauqua County at this time. Allowing the plaintiff to amend the complaint to name Dr. Verdonik and Dr. Abassi as parties in this matter does not fix the doctors' status regarding employment or representation in this matter. The defendants can certainly deny any averments to the effect that the doctors are County employees.
The Court notes that no such motion is properly before the Court at this time. Further, in the papers responding to the instant motion, the defendants assert that the Court lacks subject matter jurisdiction. Once again, the defendants have not filed a motion in this regard. The Court notes that the original complaint (and the proposed amended complaint) purport to set out an equal protection claim, as well as a Title VII claim. See Docket No. 1 at ¶¶ 15-23, 30-36.
The motion to amend the complaint is granted. The plaintiff is directed to file the Amended Complaint within 10 days of the date of this order and to effectuate service upon all defendants within 30 days of the date of this order.
Motion to Compel
The plaintiff is seeking production of confidential documents relating to Siri B., a minor, from the County Department of Social Services. It is undisputed that Hallquist has been granted custody and guardianship of Siri. The defendants assert that notwithstanding this relationship between Hallquist and Siri, the plaintiff has no standing to request these documents because they are unrelated to the plaintiff's claims that she was constructively discharged by WCA. Further, the defendants argue that Hallquist lacks standing to request these records because they relate to a period prior to her obtaining custody or guardianship of Siri.
The defendants assert that the requested documents are not relevant to the plaintiff's claims of constructive discharge. However, the plaintiff's claims in this case are, in part, based upon allegations that Siri was improperly designated as not being a candidate for foster care placement primarily to prevent Hallquist from obtaining custody of the child. (Docket No. 26 at ¶ 6-9). The claims relating to Hallquist's attempts to obtain custody of Siri are intertwined with her claims of constructive discharge. The requested records are sufficiently relevant to these issues as to be discoverable. The defendants also assert that these documents are protected from the discovery process by Section 372 of the New York State Social Services Law. That provision designates records of "an authorized agency" (such as the Department of Social Services) are "confidential" under New York law. See N.Y. Soc. Serv. Law § 372(3) (McKinney Supp. 1995). However, inasmuch as the instant claims are brought under federal statutes it is federal law that governs issues of privilege or confidentiality. See Fed.R.Civ.P. 501; United States v. Goldberger Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991);Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 517 (S.D.N.Y. 1992). Although the Court may give appropriate weight to any compelling state policy interests, the overriding interest in a case involving allegations of constitutional torts is full disclosure of information that is pertinent to an assessment of the merits of the claims and defenses. King v. Conde, 121 F.R.D. 180, 187-88 (E.D.N.Y. 1988) (citing cases); Burke v. New York City Police Dep't, 115 F.R.D. 220, 225 (S.D.N.Y. 1987). Federal law does not itself contain any prohibition against discovery of social worker files. Schwimmer v. Kaladjian, 1995 WL 479418, at *1-2 (S.D.N.Y.,1995).
Although it appears that these documents are sufficiently related to the claims in this matter as to fall under the ambit of Rule 26, the Court is also mindful that the disclosure of these documents impacts the interests of Siri B. Thus, absent agreement between the parties otherwise, Chautauqua County is directed to produce the requested documents, to the extent they exist and are in the County's possession, custody or control, subject to the following conditions:
(1) The documents are to be marked confidential.
(2) The documents are to be produced to plaintiff's counsel "for attorneys eyes only;" except as stated below, the documents may not be disclosed to the plaintiff or any other party or non-party without Court order.
(3) The documents may only be used in connection with this litigation. The documents may not be attached to any publically filed document or papers in this matter. Any documents containing information taken from these documents shall be filed under seal. A document may be used during the deposition of the author or recipient of the document. However, the parties shall take steps to seal any portions of depositions referring to information taken from these documents.
(4). The documents shall be returned by the plaintiff to the Chautauqua County Department of Social Services upon the conclusion of this litigation. The plaintiff shall not make or retain any copies of these documents.
These documents shall be produced within 30 days of the date of this order.
The plaintiff also seeks to compel the deposition of Betsy S. Steger, Esq., an attorney with the Chautauqua County Department of Social Services. The plaintiff contends that she is not seeking to discover what Ms. Steger's client (the Department of Social Services) said to Ms. Steger (such would be subject to the attorney-client privilege), but instead, she seeks "the reasons behind why the legal staff continued to oppose Ms. Hallquist's petition" to obtain custody of Siri. (Docket No. 26 at ¶ 39). The plaintiff acknowledges that she is not entitled to take the deposition of Barbara Widrig, Esq., who directly represented the Department of Social Services in Court regarding the matters underlying the plaintiff's claims. However, the plaintiff asserts that no attorney client privilege exists to protect conversations Ms. Steger, Ms. Widrig's supervisor, may have had with Ms. Widrig regarding this matter. The Court is not persuaded by this argument. Conversations between two attorneys, working in the same office for the same client are covered by the attorney-client and work-product privileges. Indeed, an opposing party is not even entitled to obtain disclosure of detailed time records and billing statements reflecting such conversations inasmuch as "to allow access to [the] material would disclose . . . trial strategy, and reveal the . . . legal work that has been done by [the party's attorneys]." Such materials are privileged in New York. Licensing Corp. of Am. v. Nat'l Hockey League Players Ass'n, 153 Misc.2d 126, 128, 580 N.Y.S.2d 128 (N.Y.Sup.Ct. 1992); DiBella v. Hopkins, 403 F.3d 102, 120 (2d. Cir. 2005). If the time records and billing materials detailing such conversations are subject to the privilege, the conversations themselves must also be privileged. Ms. Steger's conversations with county officials regarding legal issues relating to this matter are not exempted from the protection the attorney-client privilege simply because Ms. Steger did not appear in Court in connection with this matter. The fact that Ms. Widrig, and not Ms. Steger, appeared in Court on behalf of the County did not negate the attorney-client relationship existing between Ms. Steger and the defendants, or the privilege to confidential communications which took place within the context of that relationship.
The motion to compel the deposition of Ms. Steger is denied.
Modification of the Scheduling Order
The plaintiff seeks modification of the scheduling order. The following dates shall apply:
1. All discovery in this case shall conclude on February 28, 2006. All motions to compel shall be due at least 30 days prior to that discovery cutoff date.
2. If not already disclosed, the parties shall identify any expert witnesses through interrogatories pursuant to Fed.R.Civ.P. 26(b)(4) as follows: (1) plaintiff shall identify any expert witnesses by January 27, 2006, (2) defendant shall identify any expert witnesses by February 14, 2006.
3. Dispositive motions, if any, shall be filed no later than May 19, 2006.
Conclusion
Based on the above, the plaintiff's motion to amend is granted, and the plaintiff's motion to compel is granted in part and denied in part.
So Ordered.