The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
Plaintiffs Arthur and Gail Coward, who until recently ran a family care home pursuant to an operating certificate issued by the New York State Office of Mental Retardation and Development Disabilities ("OMRDD") but whose certificate has since been revoked, have commenced this action alleging deprivation of their federal civil rights. Although their initial complaint was significantly more expansive, plaintiffs' claims have been winnowed since its filing as a result of the court's dismissal of certain of their causes of action and the subsequent filing of a narrower, amended complaint. In that revised pleading, plaintiffs allege that the revocation of their license was in response to their having engaged in protected speech, in violation of their rights under the First Amendment to the United States Constitution, and assert claims under 42 U.S.C. § 1983 seeking compensatory and punitive damages as well as an order directing reinstatement of their operating certificate.
Currently pending before the court is a discovery dispute which centers upon plaintiffs' request for disclosure by the defendants of the confidential investigative report which led to the suspension of their operating certificate. While not contesting the relevance of that report to the issue at the heart of the case -- the motivation for the revocation of plaintiffs' license -- defendants argue that the report is exempt from disclosure and entitled to absolute protection under relevant state law provisions including, inter alia,N.Y. Education Law § 6527. For the reasons set forth below I find that discovery in this action is not circumscribed by the privilege embodied in that statutory provision, and thus order disclosure of the investigative report.*fn1
Up until December of 2004, at the times relevant to their claims plaintiffs managed a family care home pursuant to an operating certificate issued by the OMRDD, providing assisted living for developmentally disabled individuals, referred to as "consumers". For a significant period of time prior to December, 2004, three consumers, each of whom suffers from mental retardation, resided with the plaintiffs.
In August of 2004 one of those three consumers was diagnosed with breast cancer. Upon learning that the consumer was scheduled to undergo a double mastectomy, plaintiffs suggested to defendant Deborah Curry, a registered nurse employed by the OMRDD, that a second medical opinion should be obtained prior to surgery. Arrangements were subsequently made for the consumer to see another physician, although plaintiffs continued to complain in light of the fact that the second physician worked in the same office as the doctor who had made the original diagnosis and recommendation regarding course of treatment.
By letter dated September 4, 2004, plaintiffs were notified that the OMRDD had temporarily suspended their operating certificate to provide assisted living for mentally retarded adults in their home. A later notice, dated October 1, 2004, advised the Cowards of the scheduling of a post-suspension hearing to address the agency's decision. At the conclusion of the hearing, at which plaintiffs were given opportunity to cross-examine witnesses called by the OMRDD and present their own evidence, a hearing officer issued a decision dated October 24, 2004, upholding the temporary suspension.
During the pendency of that process, which was not pursued further by the Cowards, they were notified by letter dated November 4, 2004 of the agency's intention to permanently revoke their operating certificate. In that notice, plaintiffs were informed of their right to request a hearing to challenge the proposed revocation in writing, within thirty days of their receipt of that letter. The letter further advised that in the event such a hearing was not requested, the operating certificate would be revoked. In light of plaintiffs' failure to interpose a timely request for a hearing, their operating certificate was revoked, and they were advised of that fact by letter dated December 15, 2004.
Plaintiffs commenced this action on March 3, 2005. Dkt. No. 1. In their original complaint plaintiffs named, as defendants, Michael Gilroy, the Family Care Coordinator for the New York State OMRDD, and Patricia A. McDonald, the Director of the Broome Developmental Disabilities Services Office, as well as several John and Jane Doe defendants, and alleged various procedural due process deprivations including a "stigma-plus" violation based upon defendants' alleged failure to provide them with a name-clearing hearing, as well as violation of their rights under the First Amendment. Id.
Simultaneously with their joinder of issue by the filing of an answer on May 20, 2005, Dkt. No. 4, defendants moved for dismissal of plaintiffs' procedural due process claims. Dkt. No. 3. That motion, which was subsequently converted by the court to one seeking summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, was granted by order issued by Senior District Judge Thomas J. McAvoy on August 24, 2005. Dkt. No. 31. Plaintiffs subsequently filed an amended complaint on October 5, 2005 naming three OMRDD employees as additional defendants, and asserting two causes of action both alleging violation of their First Amendment rights. Dkt. No. 40.
During the course of pretrial discovery plaintiff has sought access to the confidential investigative report which led to the suspension, and ultimately the revocation, of their operating certificate. The parties' disagreement over access to that report, based upon defendants' refusal to produce it in response to plaintiffs' request, has been the subject of letter briefing, initially by the defendants, seeking a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, see Dkt. No. 29, and later in response by the plaintiff, filed on September 12, 2005, requesting the issuance of an order compelling discovery of the disputed report. Dkt. No. 37.
III. DISCUSSION A. Burden of Proof
As a party resisting the disclosure of otherwise relevant information, defendant bears the burden of establishing a basis for the entry of the requested protective order. King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y. 1988). This allocation of the burden of proof is particularly applicable in this instance since, as the parties seeking to benefit from a claim of privilege, it is incumbent upon the defendants to establish each element required to support a finding of privilege. Von Bulow v. Von ...