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TARTAGLIA v. PAUL REVERE LIFE INS. CO.

December 17, 1996

LOUIS A. TARTAGLIA, M.D., Plaintiff, against THE PAUL REVERE LIFE INSURANCE COMPANY, and GABRIEL J. ROSKO, Defendants.


The opinion of the court was delivered by: STEIN

 SIDNEY H. STEIN, U.S. District Judge.

 Defendant The Paul Revere Life Insurance Company has moved pursuant to Rule 45(c) of the Federal Rules of Civil Procedure for an order compelling non-party Staten Island Hospital to produce and permit inspection and copying of documents in response to a subpoena previously served on it. That motion is granted in part and denied in part for the reasons set forth below.

 Factual Background

 The underlying breach of contract action in this case is currently pending in the United States District Court for the Northern District of Ohio. The action is based on Dr. Tartaglia's claim that Paul Revere breached its obligation to pay him disability income insurance benefits and business overhead expenses pursuant to his contracts of insurance with the company. Paul Revere seeks rescission of the contracts and repayment of the benefits paid to Dr. Tartaglia because, it alleges, Dr. Tartaglia made material misrepresentations in his application for insurance by failing to disclose his history of drug and alcohol abuse.

 Paul Revere served a subpoena on non-party Staten Island on June 12, 1996, requesting the production of all documents related to Dr. Tartaglia's employment there from 1982 through 1986. Staten Island has produced certain documents in response to the subpoena, but refuses to produce other records on the grounds that they are exempt from disclosure pursuant to, inter alia, New York Public Health Law § 2805-m and Education Law § 6527. Paul Revere brought this proceeding to compel the hospital to produce the records, claiming that the law of Ohio, not New York, applies to the issue of privilege and that, pursuant to Ohio law, the documents must be produced. Paul Revere alternatively claims that the particular documents at issue are not privileged even under New York law.

 Conflict of Laws

 The Court finds that New York's substantive law of privileges should apply to the resolution of this motion. Federal Rule of Evidence 501 states, in pertinent part, that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness . . . shall be determined in accordance with State law." Fed. R. Evid. 501. Because this diversity action involves claims and defenses pursuant to state law, state law shall also determine the issue of privilege.

 The question here is whether the law of Ohio or New York should be used to resolve the parties' discovery dispute. Federal district courts sitting in diversity cases apply the conflict of laws rules prevailing in the state in which they are situated. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); see Mazzella v. Philadelphia Newspapers, Inc., 479 F. Supp. 523, 526 (E.D.N.Y. 1979); Anas v. Blecker, 141 F.R.D. 530, 531-32 (M.D. Fla. 1992); Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89, 91-92 (S.D. Cal. 1987). Thus, in determining which state's law of privileges applies to this discovery dispute, the Court must refer to New York's conflict of laws rules.

 New York choice of law gives "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 12 N.Y.2d 473, 481-82, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279, 283-84 (1963); see also Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 319, 618 N.Y.S.2d 609, 613, 642 N.E.2d 1065, 1069 (1994) (describing Babcock interest analysis). Applying this principle here, New York privilege law applies to the subpoena at issue. The hospital is a New York corporation and, during the relevant time period, Dr. Tartaglia practiced in New York. In addition, all of the records were created and maintained in New York, with the expectation that they would remain confidential in accordance with New York law.

 Paul Revere argues that because federal jurisdiction in the underlying action is based solely on diversity and the Ohio district court hearing the case has ruled that Ohio law will apply to Dr. Tartaglia's substantive claims, Ohio privilege law should apply to this matter pursuant to Federal Rule of Evidence 501. However, Rule 501 does not set forth which state's substantive law will apply in such a controversy, see In re Westinghouse Elec. Corp. Uranium Contracts Litig., 76 F.R.D. 47, 53 (W.D. Pa. 1977), nor do the cases upon which Paul Revere relies point to such a clear rule of decision.

 To the contrary, those cases stand merely for the proposition that state law, as opposed to federal common law, should decide questions concerning the application of substantive privilege doctrine. See Sackman v. Liggett Group, Inc., 920 F. Supp. 357, 362 (E.D.N.Y. 1996); Application of American Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989); Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 560 (S.D.N.Y. 1994). In fact, one of the cases to which Paul Revere cites, Sackman v. Liggett Group, first states that "if the privilege question relates to claims which will be decided under substantive state law, then the state's privilege law applies," 920 F. Supp. at 362, only then to apply New York choice of law principles to the question of what particular state's law should decide the privilege question at issue. For these reasons, the Court finds that New York law should apply to the resolution of Paul Revere's motion to compel.

 Staten Island's Claims of Privilege

 Staten Island raises six New York statutory bases to support its claims of privilege: (1) Public Health Law § 2805-m and Education Law § 6527; (2) Public Health Law § 230; (3) Mental Hygiene Law § 33.13; (4) the attorney-client privilege; and (5) the doctor-patient privilege. In determining whether these privileges apply to the documents at issue, the burden is on Staten Island, the party claiming the protection of a particular privilege, to establish the essential elements of the privileged relationship. United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995); von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987); see, e.g., In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973); Fletcher v. Atex, Inc., 156 F.R.D. 45, 49 (S.D.N.Y. 1994) (citations omitted).

 1. Public Health Law § 2805-m and Education Law § 6527.

 Staten Island claims that every document on its privilege log is immunized from disclosure to Paul Revere pursuant to New York Public Health ...


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