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In re World Trade Center Disaster Site Litigation

May 20, 2009

IN RE WORLD TRADE CENTER DISASTER SITE LITIGATION


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.

ORDER REGARDING DISCOVERY ISSUES PRESENTED IN TWO JOINT LETTERS OF MAY 15, 2009

Pursuant to my Individual Rule 2E, the parties submitted separate joint letters, both dated May 15, 2009, asking me to rule on a number of discovery issues. My rulings follow:

I. Letter on Patton Boggs stationery:

A. Plaintiffs, in cases selected for trial, shall promptly give to defendants' liaison counsel full authorizations for plaintiffs' medical and mental health records, without time limit.

1. Since plaintiffs seek recovery for damages to their physical and mental health, defendants are entitled to learn about the medical and mental health conditions preceding the damages that were allegedly caused by the defendants' negligence.

2. Since preceding conditions may explain or mitigate current medical and mental conditions, and since medical and mental conditions may germinate over a long period of time, no time boundaries rationally can be set with regard to such records.

3. The restricted limitations provided by state and federal laws do not apply here. The medical and mental conditions are relevant and have been put in issue. People v. Wilkins, 480 N.E.2d 373, 375 (N.Y. 1985); Levine v. Morris,550 N.Y.S.2d 289, 289 (App. Div. 1990); see 45 C.F.R. §§ 164.502(a); 164.508(a)(1); N.Y. C.P.L.R. § 3121.

4. The intensity of proceedings required under my Case Management Order No. 8, ordered with the consent of the parties, is inconsistent with constant supervision by the Court. The good faith of counsel and the protective orders in place are sufficient protections.

B. Regarding procedures for submitting disputes to the Court, the parties shall proceed as follows:

1. The proponent of the discovery demand to which the adverse party resists shall call for a meeting upon one day's notice.

2. If the issues are not resolved, the proponent shall set out his demand and supporting arguments in a proposed joint letter to the Court, within two days of the meeting.

3. The respondent shall set out his response and argument, limited to the issues pursuant to him and without raising any other issue, within two days after receiving the proponent's proposal.

4. Within one day thereafter, the proponent, without changing his or the respondent's submissions, shall submit both to ...


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