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Sparks v. Seltzer

August 14, 2006


The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge


In the above-referenced civil rights law suit brought under 42 U.S.C. § 1983, referred to the undersigned for general pretrial supervision pursuant to 28 U.S.C. § 636(b), non-party Mental Hygiene Legal Service ("MHLS") seeks to prevent its former employee, Maureen Gest, Esq., from testifying, first voluntarily, then pursuant to a subpoena duly served by plaintiffs, at a deposition regarding information she gained during the course of her employment as an attorney for MHLS.*fn1 Specifically, MHLS asserts that disclosure of such information at Ms. Gest's deposition will violate the terms of a confidentiality agreement signed by Ms. Gest at the commencement of her employment with MHLS, and violate New York State Mental Hygiene Law ("MHL") and its related regulations protecting from disclosure patient information. (Doc. No. 38, Memorandum of Law in Support of Non-Disclosure ("MHLS Mem.") 1, 5.) For the reasons set forth below, the application by MHLS to quash plaintiffs' subpoena seeking Ms. Gest's testimony is denied. The parties are directed to schedule Ms. Gest's deposition at the earliest, mutually convenient date.


On February 23, 2005, plaintiff Robert Sparks and the Mental Disability Law Clinic, Touro Law Center (the "Touro Clinic")*fn2 , commenced a class action lawsuit on behalf of individuals who presently are, or who in the future will be, confined in ward 6A, building 40 at Creedmoor Psychiatric Center ("Creedmoor"), a facility operated by the New York State Office of Mental Health. (Doc. No. 1, Complaint ("Compl.") ¶¶ 1-2, 7.) Plaintiffs challenge several of Creedmoor's policies on Constitutional grounds under 42 U.S.C. § 1983. (Id. ¶ 5.) Specifically, plaintiffs assert that Creedmoor's alleged supervision of patient visits with family members and monitoring patients' use of public pay telephones violates plaintiffs' Constitutional rights. (Id. ¶¶ 9, 13-31; Doc. No. 41, Plaintiff's Memorandum of Law in Opposition to the Attempt by Mental Hygiene Legal Service to Preclude Testimony of Maureen Gest ("Pls. Mem.") 3.)

In order to permit discovery of information regarding otherwise confidential information concerning patients at Creedmoor, on July 26, 2005, the Court "so ordered" a Stipulation and Order of Confidentiality governing the disclosure of patient information between the parties and to the Court for the purposes of this lawsuit. (Docket No. 36, Stipulation and Order of Confidentiality.) The Stipulation and Order of Confidentiality provides, inter alia, that patient information produced during the course of this litigation will remain confidential. (Id. ¶¶ 6-8, 10-11.) The Stipulation and Order of Confidentiality further provides that production of any materials under the Stipulation and Order "shall not waive a Party's right to . . . an assertion of any statutory or common law privilege . . . ." (Id. ¶ 3.)

On May 12, 2005, plaintiffs initially submitted an affidavit of Ms. Gest in support of their class certification motion, which has since been granted. See generally, Sparks v. Seltzer, No. 05-CV-1061, 2005 WL 3116635, *2-5 (E.D.N.Y. Nov. 22, 2005). On May 25, 2005, Sidney Hirschfeld, Director of MHLS, sent a letter to Ms. Gest requesting that she stop providing information in this action because the information she gained as an employee was confidential under MHL Article 47 and 22 N.Y.C.R.R. § 694.7, and could not be disclosed without his consent, which he did not provide, or a court order. (MHLS Mem. 1-2, Ex. A.) By letter dated June 2, 2005, Ms. Gest responded and disagreed with Mr. Hirshfeld's interpretation of the confidentiality laws and indicated that the only information she disclosed and would disclose was based solely on conversations and her own observations. (Pls. Mem. 4; MHLS Mem., Ex. B.) Mr. Hirschfeld responded to Ms. Gest by letter dated June 3, 2005, reiterating his interpretation of the state confidentiality laws, and reminding Ms. Gest that all activities undertaken in furtherance of her duties with MHLS are subject to the protections of those laws. (MHLS Mem. 3, Ex. C.) On June 6, 2005, Ms. Gest submitted a second affidavit in support of plaintiffs' motion for class certification. (Pls. Mem. 5; MHLS Mem., Ex. D.) Mr. Hirschfeld wrote to Ms. Gest again on June 15, 2005, restating his position on the confidentiality of the information provided by Ms. Gest and threatening to refer Ms. Gest for professional sanctions. (MHLS Mem., Ex. E.) Ms. Gest's response, inter alia, requested a copy of the confidentiality agreement she signed as part of her employment with MHLS. (Id., Ex. F.) Mr. Hirschfeld forwarded a copy of the agreement to Ms. Gest on June 28, 2005. (Id., Ex. G.)

Following the foregoing exchange of correspondence between Mr. Hirschfeld and Ms. Gest, plaintiffs subpoenaed Ms. Gest to testify at a deposition on September 15, 2005. (Pls. Mem. 5; MHLS Mem. 5.) Upon learning of her upcoming deposition, Mr. Hirschfeld again contacted Ms. Gest by letter dated September 9, 2005, reiterating his position on the confidential nature of the information that was sought to be provided at her deposition, asking that she invoke a privilege pursuant to Mental Hygiene Law Article 47 and 22 N.Y.C.R.R. § 694.7, and stating that the Director of MHLS did not waive the privilege for this lawsuit. (MHLS Mem., 5, Ex. H.) Mr. Hirschfeld also restated his threat that "[he] remain[s] committed to refer" Ms. Gest to the professional disciplinary authorities should Ms. Gest continue her involvement in this lawsuit. (Id.)*fn3

Plaintiffs thereafter requested the Court for an order authorizing the testimony of Ms. Gest. (Doc. 35, Letter from William Brooks dated Sept. 12, 2005.) Mr. Hirschfeld responded by letter to the Court dated September 13, 2005, explaining that if Ms. Gest were allowed to testify, MHLS and its work would be adversely affected. (Doc. No. 37.) Counsel for MHLS and the parties participated in a telephone conference with the Court on September 14, 2005, in an attempt to resolve the dispute. (See Doc. No. 44, Transcript of Civil Cause for Telephone Conference ("Tr.").) The Court then ordered the interested parties to submit memoranda regarding Ms. Gest's testimony.

A. Statutory Mandate Of MHLS

MHLS is an agency within the New York State judiciary, and has the following statutory duties: to review the admission of all patients receiving services intended for mentally disabled persons; to inform those patients of their rights to judicial review, legal counsel and an independent medical opinion; to provide legal services for those patients; and to take any legal action necessary to safeguard those patients' rights. N.Y. Mental Hyg. L. § 47.03(a)-(c), (e) (McKinney 2006). MHLS is not a party to this action, however, MHLS's mandate to protect patient rights is similar to that of plaintiff Mental Disability Law Clinic, Touro Law Center. ((Affidavit of William Brooks dated Oct. 19, 2005 ("Brooks Aff.") ¶ 1 ("The Clinic is authorized to provide legal services to institutionalized mentally ill individuals pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq.").)

To carry out these foregoing duties, mental health facilities are to grant MHLS access to their records and personnel. Specifically, MHLS has been provided with "access at any and all times to any facility . . . to all books, records and data pertaining to any such facility," and authority to "require from the offices or employees of such facility . . . any information deemed necessary for . . . carrying out the services, functions, powers, and duties." Id. § 47.03(d). According to MHLS, this broad statutory authority provides MHLS with "unfettered access" to mental health facilities, employees and records in carrying out its duties. (MHLS Mem. 8.)

B. Contentions Of MHLS

MHLS seeks to preclude the disclosure of all information, by testimony or otherwise, obtained by Ms. Gest in the course of her duties while employed as an attorney for MHLS. (MHLS Mem. 1.) MHLS claims that the information sought by plaintiffs is privileged under state law. ((MHL Mem. 11) (citing 22 N.Y.C.R.R. ยง 694.7 and MHL 33.13).) MHLS also asserts that Ms. Gest's testimony is "likely" to harm its relationship with Creedmoor and other psychiatric facilities because the facilities may be less willing to allow MHLS access to the facilities' records and personnel, and less willing to partake in negotiations with MHLS to resolve issues regarding patients for fear that third-parties will commence litigation armed with information obtained from MHLS. (MHLS Mem. 10-11.) MHLS further asserts that as a condition of employment with MHLS, Ms. Gest signed an agreement to keep confidential "all matters of information which ...

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