IN RE: ALL PLAINTIFFS IN CHILD VICTIMS ACT NYC LITIGATION (2021)

Order, Supreme Court, Bronx, Kings, New York, Queens, and Richmond Counties (George J. Silver, D.C.A.J.), entered on or about March 30, 2021, which, insofar as appealed from as limited by the briefs, denied defendants’ motions to vacate or modify certain provisions of the September 18, 2020 confidentiality order, unanimously modified, on the facts and in the exercise of discretion, to grant the motions to modify the confidentiality order to the extent stated herein, and otherwise affirmed, without costs.

This appeal concerns the thousands of cases commenced across New York City under the recently enacted Child Victims Act (CVA), which extended the time in which certain cases involving sexual misconduct against children could be brought (see CPLR 208[b], 214–g).  These cases were informally aggregated pursuant to 22 NYCRR 202.72(1) and assigned to Justice Silver as the CVA Regional Part Judge.

Justice Silver issued Case Management Order No. 2 (CMO # 2), which delayed disclosure of broad categories of documents to be produced by defendants until entry of a confidentiality order or submission of proposed orders.  Following the submission, Justice Silver issued the subject confidentiality order.

Of relevance here, the order allowed any party to designate discovery as “Confidential” to the extent it contained “non-publicly disclosed information, including data, summaries, and compilations derived therefrom, that contains scientifically, medically, financially, commercially sensitive information and/or private information as defined in N.Y. Shield Act, N.Y. General Business Law § 899–aa” or health information.  It also permitted disclosure of materials so designated to “the parties” to a civil CVA claim “involving one or more of the same parties or one or more of the same alleged abusers” and prohibited dissemination of such materials to “any person not reasonably involved in the prosecution, defense, or settlement” of such a claim (the Sharing Provisions).  It further provided that, in the event a “Receiving Party” objected to a confidential designation, it was the “Producing Party's” burden to seek relief from the court and to “justify[ ] the propriety of its designation.”  The order also specified that there was no waiver of any party's “right to object to any discovery request on any ground,” to assert “any applicable privilege or protection,” or to apply for “further or additional protective orders” (the No Waiver Provision).

Multiple defendants moved to vacate the Sharing provisions, reverse the burdens set forth in the Challenge Provision, and add additional categories of documents to those that could be designated as Confidential.  In addition, defendant The New York Foundling, sought to create procedures for in camera review of foster care and adoption records and defendant Ireland Province, Society of African Missions, Inc. d/b/a Society of African Missions – American Province (SMA), a foreign entity organized under Irish law, sought to limit its disclosure obligations to comply with the European Union (EU) General Data Protection Regulation (GDPR).

Supreme Court held that the Sharing Provisions supported the CVA's goals of efficiency and case coordination.  On specific objections to the confidentiality, Supreme Court held that it was not necessary to modify the definition of confidential information because employment and educational records were “directly relevant” to defendants’ knowledge of the abusers’ propensity to commit the acts alleged.  It also held that it was appropriate to place the burden of demonstrating confidentiality on the defendant who made the designation because, otherwise, “nothing would prevent defendants from designating each and every document as confidential,” forcing plaintiffs to “make myriad applications seeking to unseal records.”  We recognize the formidable work done to craft a confidentiality order in this important and sensitive litigation.  For the reasons stated below however, we find that certain limited modification of the confidentiality order is warranted.

In § IV(1)(a), the language “involving one or more of the same parties or one or more of the same alleged abusers,” is replaced with “involving the same alleged abuser.  Not less than 20 days prior to such disclosure, the Receiving Party must provide notice of the intended disclosure to the Producing Party, specifying the date thereof, identity of the intended recipient(s), and nature of the documents to be disclosed.”  In § II(1), the language “any person not reasonably involved in the prosecution, defense, or settlement of a civil claim related to allegations of child sexual abuse involving one or more of the same parties or one or more of the same alleged abusers,” is replaced with “any person not authorized to receive such materials pursuant to § IV herein.”  These modifications are necessary to create consistency between these provisions, to ensure that only material and necessary information is shared, and to protect defendants’ rights to object to sharing and to enforce the prohibitions on further dissemination.

In addition, § III(1)(a)(i) is modified to include an additional category of documents that may be designated as confidential – namely, “personal information, including educational and employment records.”  Although these documents are indisputably relevant, designating them confidential will not affect defendants’ obligation to disclose them but only the breadth of their dissemination.

These same provisions also adequately preserve defendants’ rights to object to discovery or sharing of documents subject to the European Union's General Data Protection Regulation.

Defendant The New York Foundling is correct that heightened protections are afforded to foster care and sealed adoption records (see Domestic Relations Law § 114;  Golan v. Louise Wise Servs., 69 N.Y.2d 343, 347–348, 514 N.Y.S.2d 682, 507 N.E.2d 275 [1987] [adoption records];  Social Services Law § 372[3], [4][a];  K.B. v. SCO Family of Serv., 159 A.D.3d 416, 417, 73 N.Y.S.3d 23 [1st Dept. 2018] [foster care records]).  However, the no waiver provision (§ VIII[3]) of the confidentiality order already preserves defendants’ rights to object to discovery requests for such records, and the above modifications to § IV(1)(a) give defendants 20 days in which to object to the sharing of such documents across actions.  In the event defendant The New York Foundling objects to the discovery request, these records will be submitted for an in camera review by Supreme Court to determine their discoverability.

Section IV (4) properly places the burden of justifying the confidential designation on the Producing Party, as the burden of demonstrating that disclosure is improper is always on the party seeking to avoid disclosure (see Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401, 403–404, 84 N.Y.S.3d 82 [1st Dept. 2018];  R.C. Church of the Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 257–258, 608 N.Y.S.2d 647 [1st Dept. 1994]).  Further, Supreme Court providently exercised its discretion in upholding the requirement that the Producing Party make a motion to retain a challenged confidentiality designation.  While some confidentiality orders require the Receiving Party to make such motions, the burden of establishing the propriety of the designation is still placed on the Producing Party (see e.g. 22 NYCRR 202.70, Appx B, § 4;  Brummer v. Wey, 2019 N.Y. Slip Op. 33757[U], *5–9, 2019 WL 7207445 [Sup. Ct, N.Y. County 2019];  Exeter Law Group LLP v. Immortalana Inc., 2017 N.Y. Slip Op. 30092[U], *2–5, 2017 WL 169112 [Sup. Ct, N.Y. County 2017]).