GIBBS v. KINGS HARBOR HEALTH SERVICES LLC (2021)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered March 7, 2019, which, inter alia, denied in part defendant's motion for a protective order and granted plaintiffs' cross motion to compel production of certain documents and for the entry of a HIPPA-qualified protective order, and order, same court and Justice, entered September 17, 2019, as corrected by order, same court and Justice, entered September 24, 2019, which, insofar as appealed from as limited by the briefs, denied defendant's motion to renew, unanimously affirmed, without costs.

The court providently exercised its discretion in directing defendant to comply with plaintiffs' pre-class certification document request, which was not overbroad or unduly burdensome (see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ).  However, to the extent the requests seek both electronic and paper records, defendant need not produce both if the records are identical.

The document request is properly directed at obtaining material that is relevant to the claims of the class as a whole.  Plaintiffs' discovery should not be limited to material relevant only to the named representatives since the complaint contains allegations relating to the putative class as a whole.

Defendant failed to demonstrate the applicability of the quality assurance privilege contained in Public Health Law § 2805–m (2) and Education Law § 6527(3) in that the material requested was not prepared by or at the behest of the quality assurance committee.  Because defendant was required to compile the data and report to various government agencies concerning its staffing and patient care, the material is not subject to the quality assurance privilege (see Sanchez v. Kateri Residence, 79 A.D.3d 492, 911 N.Y.S.2d 630 [1st Dept. 2010] ).

Defendant argues that many of the documents requested are nonexistent.  However, it failed to provide an affidavit of a person who conducted the search, detailing where such records were usually maintained and the scope of the search.

The court properly denied defendant's motion to renew because renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Matter of Weinberg, 132 A.D.2d 190, 210, 522 N.Y.S.2d 511 [1st Dept. 1987], appeal dismissed 71 N.Y.2d 994, 529 N.Y.S.2d 277, 524 N.E.2d 879 [1988] ).  Defendant did not provide a reasonable justification for its failure to present the affidavit of a person with knowledge of the facts in support of its initial motion for a protective order (see American Audio Serv. Bur., Inc. v. AT & T Corp., 33 A.D.3d 473, 476, 823 N.Y.S.2d 25 [1st Dept. 2006] ).

We have considered defendant's remaining arguments and find them unavailing.