Chapter I - Subchapter C

§1-33 Discovery.

Generally

OATH’s discovery rules vest ALJs with broad discretion to decide discovery disputes and to impose penalties for any failure to produce discovery. Dep’t of Correction v. Bolanos, OATH Index No. 853/15 (Mar. 19, 2015).

Parties should disclose all evidence relevant to the case and all information reasonably calculated to lead to relevant evidence. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Discovery Motions

GENERALLY

Before resting its case, and again at the conclusion of respondent’s case, petitioner requested permission to conduct an inspection of the subject Building and to present a rebuttal case limited to the current conditions of the Building based upon the inspection. The ALJ denied petitioner’s request for discovery as untimely and irrelevant to the claims of harassment against the former lawful occupants of the Building, which had been vacant for the past few years. Dep’t of Housing Preservation & Development v. Joseph, OATH Index No. 1550/24 (June 14, 2024), rejected on other grounds, Comm’r Dec. (July 26, 2024).

Based on respondent’s testimony, agency sought the production of medical records from a clinic visit, over respondent’s objection. ALJ denied the discovery request, finding it to be untimely and relevant only to impeachment on a collateral matter. Dep’t of Correction v. Ben-Levi, OATH Index No. 1899/22 (July 1, 2022), rejected on other grounds, Comm’r Dec. (Aug. 15, 2022), appeal dismissed, NYC Civ. Serv. Comm’n Case No. 2022-0666 (Jan. 11, 2023).

Although respondent’s discovery demands served nine days before trial were untimely, ALJ denied agency’s request to preclude respondent’s discovery demands and evidence on that basis. However, ALJ denied respondent’s discovery requests that were overly broad, irrelevant, or unnecessary where respondent had independent access to the requested material. Fire Dep’t v. Simpkins, OATH Index No. 2308/14 (Dec. 11, 2014).

Where respondent produced about 650 pages of discovery documents a month after trial started, ALJ precluded any documents that were not originally produced in response to petitioner’s discovery demand. Matter of Gallagher, OATH Index Nos. 2594/11 & 2596/11 (Aug. 16, 2012).

During the trial, ALJ instructed petitioner’s counsel to promptly and diligently search for documents requested by and not yet turned over to respondent. When no responsive documents were produced, which ALJ found troubling, adverse inference drawn. Dep’t of Buildings v. Reilly, OATH Index No. 1116/17 (Apr. 10, 2018), adopted, Comm’r Dec. (May 1, 2018).

The recipient of a discovery request must alert her adversary when she does not intend to disclose the requested material. Pursuant to subsection (c) of this section, an objection to a discovery request shall be made as promptly as possible, but no later than the time for an answer to that request. A party has two options: bring the matter to the attention of the trial judge or make an objection and allow the adversary to present the matter to the judge. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Extensive production demands made only days before the hearing are untimely pursuant to this rule. Taxi and Limousine Comm'n v. Haven Car Service, OATH Index No. 652/99 (Jan. 22, 1999).

The benefits of discovery - for instance, in shaping or limiting the issues for trial - should outweigh the costs, burdens, and time associated with the discovery, and the timeliness of a request for discovery is also relevant. Matter of Prince, OATH Index No. 1506/95, mem. dec. (Sept. 12, 1995).

In general, discovery is far less extensive in administrative adjudication than in modern civil litigation, and the administrative law judge is vested by this section with broad discretion in overseeing discovery. Matter of Prince, OATH Index No. 1506/95, mem. dec. (Aug. 18, 1995).

Where the information available without the benefit of discovery is inadequate to trial preparation on critical factual issues, discovery is essential. Matter of Prince, OATH Index No. 1506/95, mem. dec. (Aug. 4, 1995).

Unexcused delay in bringing a discovery motion can be sufficient basis without more for denial of the motion. Dep't of Housing Preservation and Development v. Natal, OATH Index No. 1185/90 (Mar. 22, 1991); Fire Dep't v. James, OATH Index No. 1187/90 (Oct. 17, 1990), modified as to penalty, Comm'r Dec. (Dec. 13, 1990); Police Dep't v. Prendergast, OATH Index No. 1199/90 (Dec. 6, 1990).

MOTIONS TO COMPEL DISCLOSURE

ALJ granted motion to compel discovery. Respondent directed to respond to discovery demands within five business days and warned that failure to do so may result in the preclusion of evidence or the drawing of adverse inferences at trial. Comm’n on Human Rights ex rel. Ramirez v. 27 Sports Bar and Café, Inc., OATH Index No. 2547/19, mem. dec. (Sept. 29, 2020).

Respondent’s motion to compel discovery denied because the information sought concerned whether petitioners are residential occupants of the premises, which is not relevant to the overcharge application. Matter of Boustead, OATH Index No. 1235/17, mem. dec. (May 19, 2017).

Motion to compel disclosure granted as to information and records substantiating complainant’s claim for emotional distress damages and information and records for the past ten years of any mental health treatment that complainant received as a result of the alleged discrimination as well as the medical providers who treated the complainant. Motion otherwise denied. Comm’n on Human Rights ex. rel. Lissade v. Baron, OATH Index No. 188/16 (July 27, 2016) (letter to counsel).

ALJ ordered petitioner to produce two witnesses requested by respondent who were present during the incident which formed the basis of the charges; she excluded four witnesses respondent requested to testify about miscellaneous uncharged conduct allegedly committed by petitioner's main witness. Those witnesses were excluded pursuant to the collateral matter rule, which precludes the introduction of extrinsic evidence to prove a collateral matter. Dep't of Correction v. Finch, OATH Index No. 652/07 (Nov. 28, 2006), modified on penalty, Comm'r Dec. (May 24, 2007).

In a civil rights enforcement proceeding, based on disability discrimination, the administrative law judge granted respondents' motion to compel discovery of complainant's medical records because the complainant placed her health in issue. Comm'n on Human Rights v. Woodycrest Realty, LLC, OATH Index No. 779/03, mem. dec. (May 1, 2003).

Where the respondent moved to compel discovery sought in support of an affirmative defense, the administrative law judge, in considering the motion to compel, ruled that the affirmative defense did not lie and therefore denied the motion to compel. Dep't of Health v. Protzel, OATH Index No. 613/98 (Dec. 10, 1997).

The respondent's discovery request, that the petitioner produce copies of OATH's decisions in cases brought by the petitioner in comparable cases, constituted a request for legal research of material which is available to each party at OATH's offices. Therefore, the respondent's motion to compel the petitioner to answer the discovery request was denied. Dep't of Health v. Protzel, OATH Index No. 613/98 (Dec. 10, 1997).

As a general matter, paragraph (e) of this section requires a two-step process: upon one party's failure to make discovery, the requesting party must move for and obtain an order compelling discovery, and only upon failure to comply with such an order may sanctions be imposed. Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), reversed in part and remanded on other grounds, Loft Bd. Order No. 2083 (Mar. 20, 1997).

Even where a discovery request is proper within the requirements of this section, a discovery-related motion such as a motion to compel is addressed to the discretion of the administrative law judge. Fire Dep't v. James, OATH Index No. 1187/90 (Oct. 17, 1990), modified as to penalty, Comm'r Dec. (Dec. 13, 1990).

SANCTIONS

Handwritten notes taken by a Department of Investigation (“DOI”) employee at respondent’s interview were not produced during discovery. Although the notes were ultimately located and produced, respondent sought an adverse inference. The ALJ denied that request because the omission of the notes from discovery did not appear to have been intentional. Further, respondent was not prejudiced by their initial absence because the notes were entirely duplicative of the portions of the investigation memo regarding respondent’s interview, and petitioner called the DOI employee as a witness and re-called a different witness so that respondent’s counsel could cross examine them both about the notes and the memo. Dep’t of Correction v. Salinas, OATH Index No. 1375/24 (May 17, 2024), adopted, Comm’r Dec. (June 11, 2024).

ALJ denied respondent’s request for sanctions in connection with petitioner’s failure to comply with discovery request, or to do so in a timely manner. While it is true that the production of documents by petitioner was unduly delayed, and that it took several conferences to resolve discovery disputes, petitioner was represented by two different attorneys, and that after the first day of trial, petitioner represented himself. Petitioner substantially complied with the discovery requests, and there was no showing that any absence of evidence was prejudicial to respondent. Matter of Roche, OATH Index Nos. 1068/20 & 1069/20 (Apr. 8, 2022), adopted, Loft Bd. Order No. 5148 (July 21, 2022), aff’d, 2023 N.Y. Misc. LEXIS 2903 (Sup. Ct. N.Y. Co. 2023).

Based on agency’s failure to comply with ALJ’s order compelling discovery, ALJ precluded agency from presenting evidence or testimony pertaining to interviews conducted and summarized or referenced in any version of the investigator's report or related documents other than interviews with the complaining witness named in the petition. Dep’t of Consumer Affairs v. J&O Security Services, Inc. and Osagie, OATH Index No. 2830/18, mem. dec. (May 6, 2019).

Motion to preclude petitioner from submitting evidence at trial based on failure to respond to discovery denied. ALJ had not been apprised of petitioner’s failure to produce documents and never issued an order compelling discovery.  Moreover, given respondent’s pro se status, ALJ found his explanation reasonable and further found no prejudice to respondent.  Matter of Cohen, OATH Index No. 2015/12 (Aug. 23, 2013), adopted, Loft Bd. Order No. 4261 (Mar. 20, 2014).

Counsel’s failure to respond to opposing counsel’s requests for reciprocal discovery, although indecorous and disrespectful, was not willful so ALJ declined to impose sanction.  Counsel was warned that similar conduct in the future could result in a sanction.  Dep’t of Correction v. Bolanos, OATH Index No. 853/15 (Mar. 19, 2015).

Commission on Human Rights precluded from offering evidence at trial relating to the feasibility of relocating a disabled tenant to alternative space which was wheelchair accessible, because the Commission refused during discovery to answer the landlord’s interrogatory seeking discovery of any potential alternative accommodations requested and, instead, objected that the Interrogatory was “irrelevant.” Comm’n on Human Rights ex rel. Politis v. Marine Terrace Assocs., OATH Index Nos. 1673/11 & 1674/11 (Nov. 25, 2011), rejected, Comm’n Dec. & Order (Apr. 24, 2012).

A landlord sought sanction against the Commission on Human Rights for the destruction of evidence by an architect used by the Commission as an expert witness, and the architectural firm that employed him. In the course of discovery the firm stated that it was unable to produce certain email transmissions that had been deleted by the architect, along with other working files, when he left their employ. The architect testified at the hearing that he had not deleted any email before leaving and the firm’s representation to the contrary was mistaken. ALJ denied the motion, finding no evidence that evidence had been willfully destroyed. Comm’n on Human Rights ex rel. Politis v. Marine Terrace Assocs., OATH Index Nos. 1673/11 & 1674/11, mem. dec. (Nov. 25, 2011).

ALJ granted petitioner’s motion to preclude respondent from offering his doctor’s notes at trial where respondent failed to timely provide the same in legible form in response to petitioner’s discovery request. Motion to preclude respondent’s doctor from testifying at trial, a drastic action likely to severely limit respondent’s defense, was denied in the absence of a showing that non-production was willful or petitioner was prejudiced by it. Fire Dep’t v. Peltonen, OATH Index No. 2101/08 (Oct. 9, 2008), adopted, Comm’r Dec. (Nov. 21, 2008), aff’d sub nom Peltonen v. Scoppetta, 25 Misc. 3d 1208A, 901 N.Y.S.2d 901 (Sup. Ct. Kings Co. 2009).

Sanctions will be imposed when the failure to produce discovery was willful and in bad faith, and the absence of the missing evidence was prejudicial. ALJ denied application for sanctions made by sanitation worker charged with stealing departmental cleaning supplies due to petitioner’s failure to preserve the items it had identified as stolen, finding respondent did not show items were willfully destroyed. Instead, the evidence showed that petitioner’s investigator negligently allowed the items to be used. Nor did respondent show prejudice due to the destruction of the items since the items were fungible. Dep’t of Sanitation v. Centeno, OATH Index No. 857/11 (June 6, 2011), adopted, Comm’r Dec. (Aug. 8, 2011), aff’d, NYC Civ. Serv. Comm’n Item No. CD 11-92-SA (Nov. 30, 2011).

Under other OATH cases, an order compelling discovery is appropriate before a party may seek the drastic remedy of preclusion under subsection (e) of this section.  In Human Rights cases heard at OATH, however, section 2-29 of the rules permits the imposition of preclusion as a sanction for failing to comply with or object to a discovery request in a timely fashion, even absent an order compelling discovery.  ALJ grants petitioner’s motion to preclude specific financial documents requested but not supplied and precludes related testimony.  Comm’n on Human Rights ex rel. Rose v. Co-Op City of New York, d/b/a Riverbay Corporation and Cooper, OATH Index No. 1831/10, mem. dec. (Apr. 29, 2010).

Two agency attorneys who deliberately chose not to produce requested documents in their possession were admonished. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Motion to preclude evidence due to petitioner's failure to produce documents prior to trial was denied where record showed that counsel was unaware of the existence of the documents until witnesses testified at trial. Counsel was admonished to be more attentive to its pretrial discovery obligations in the future or it may face severe sanctions. Dep't of Environmental Protection v. Ginty, OATH Index No. 1627/07 (Aug. 10, 2007).

Preclusion is a disfavored remedy best suited to a situation in which a party offers the very evidence that it failed to produce in discovery. The preferred remedy when non-production is revealed at trial is a continuance. Motion for sanctions of preclusion and adverse inference denied where party rejected offer of continuance for the purposes of having supplemental document production. Dep't of Environmental Protection v. Ginty, OATH Index No. 1627/07 (Aug. 10, 2007).

In an employment discrimination case, where the employer claimed the complainant was fired for poor performance, ALJ took an adverse inference against the employer due to the employer's negligent failure to preserve certain key documents - sales reports and a recent performance evaluation for the complainant and similarly situated employees - which were sought by the complainant in discovery. Comm'n on Human Rights ex rel Manning v. HealthFirst, LLC, OATH Index No. 462/05 (Mar. 15, 2006), adopted, Comm'n Dec. & Order (May 10, 2006).

Preclusion of an agency's requested witness is the proper remedy for agency's repeated failure to identify the witness during numerous pretrial communications establishing the agency's witness list. Dep't of Housing Preservation & Development v. Porres, OATH Index No. 627/06 (June 16, 2006).

Noncompliance with disclosure order would subject party to sanctions under 48 RCNY §§ 1-33(e), and 2-29(c), including but not limited to preclusion of evidence, striking the answer or precluding asserted defenses, and/or costs. Comm'n on Human Rights v. G.P.C. Realty Corp., OATH Index No. 228/04, mem. dec. (Feb. 26, 2004).

Administrative law judge denied application to sanction respondent for spoilation of crucial evidence, a surveillance videotape, where no discovery disputes have been presented to the tribunal nor has an order compelling compliance with a discovery request been made. Comm'n on Human Rights v. Space Hunters, Inc., OATH Index No. 997/04, mem. dec. (June 22, 2004).

Where counsel refused to comply with a directive of this tribunal to produce an available witness, and otherwise engaged in disruptive and disrespectful conduct, the testimony of the witness was precluded pursuant to subsection (e) of this section. Dep't of Sanitation v. Hernandez, OATH Index No. 124/03, mem. dec. (Nov. 14, 2002).

Administrative law judge declines respondent's request that judge should draw a negative inference against the agency for failing to produce a document sought by respondent in discovery. The fact that a record cannot be found, absent some indication that non-production is purposeful, is insufficient reason for any sanction to be imposed. Discovery sanctions are available only if willful or “persistently negligent” noncompliance with discovery obligations is shown. Dep't of Sanitation v. McCutchen, OATH Index No. 1728/98 (Jan. 25, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD00-102-SA (Nov. 15, 2000).

Extensive discovery demand, made only days before the scheduled hearing, was untimely under this section. Administrative law judge denied respondent's request that he draw an adverse inference against petitioner based upon petitioner's failure to produce documents sought by respondent in discovery. A missing evidence inference is available, not when a party merely fails to produce some evidence, but when there is a basis to believe that the party in possession of the evidence, knows it to be unfavorable, and has therefore chosen not to produce it. Here respondent failed to make such a showing. Taxi and Limousine Comm'n v. Haven Car Service, OATH Index No. 652/99 (Jan. 22, 1999).

Respondent's request for voluminous document production was made less than 20 days before trial, without consent of petitioner and without leave of the administrative law judge, and was returnable on the day of trial. Upon petitioner's failure to comply, respondent moved to preclude evidence on the charges related to the document request. Preclusion was denied but a continuance was allowed to enable respondent to review the documents. Human Resources Admin. v. Dimps, OATH Index No. 939/98 (Apr. 3, 1998), aff'd, NYC Civ. Serv. Comm'n CD 99-90-SA (Aug. 31, 1999).

No sanctions imposed where party from whom discovery material was sought was not in possession of the material and where the discovery request was untimely. No adverse inference or missing evidence inference was warranted where it was not clear that the evidence in question ever existed or that it was being purposefully withheld. Taxi and Limousine Comm'n v. Haven Car Service, OATH Index No. 652/99 (Jan. 22, 1999).

Parties voluntarily engaged in extraordinary discovery device by service and response to bill of particulars; respondent claimed inadequate compliance with demand and moved for preclusion of evidence at trial. Petitioner provided sufficient information in its subsequent response to respondent's motion to preclude, thereby putting respondent on notice of the charges against him. Administrative law judge denied the motion holding that preclusion is only appropriate where the party fails to comply with discovery order. Dep't of Correction v. Altreche, OATH Index Nos. 1377-78/98, 1384-86/98, 492/99, mem. dec. (Sept. 22, 1998); Human Resources Admin. v. Dimps, OATH Index No. 939/98 (Apr. 3, 1998), aff'd, NYC Civ. Serv. Comm'n CD 99-90-SA (Aug. 31, 1999).

As a general matter, paragraph (e) of this section requires a two-step process: upon one party's failure to make discovery, the requesting party must move for and obtain an order compelling discovery, and only upon failure to comply with such an order may sanctions be imposed. Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), rejected in part and remanded on other grounds, Loft Bd. Order No. 2083 (Mar 20, 1997).

Although the respondent's counsel was negligent in failing to respond timely to a discovery request, the petitioners' request for discovery sanctions pursuant to paragraph (e) of this section was denied because the respondent's counsel provided the discovery promptly upon receipt of the petitioners' motion to compel. Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), rejected in part and remanded on other grounds, Loft Bd. Order No. 2083 (Mar 20, 1997).

After the petitioner failed to produce documents requested in discovery by the respondent and failed to comply with two successive orders compelling such production, the case was marked off the calendar without prejudice to restoration upon a showing that the petitioner had complied with the respondent's discovery demands. When the petitioner moved a year later to restore the case to the calendar, but the petitioner failed to prove full compliance with the respondent's discovery demand, the motion to restore was denied and the case was dismissed with prejudice. Transit Auth. v. Villa, OATH Index No. 668/95, mem. dec. (Apr. 15, 1996).

Although only willful noncompliance with orders compelling discovery may result in the more extreme sanctions, such as dismissal of the case, persistently negligent noncompliance with such orders may result in imposition of lesser sanctions. Where the respondent's delays in obtaining discovery from the petitioner were aggravated by the respondent's counsel's refusal to comply with discovery orders, and where the respondent was ultimately not prejudiced by the petitioner's noncompliance with discovery orders, the respondent's application for preclusion of evidence was denied, and the sanction imposed on the petitioner's counsel was a formal admonishment. Bd. of Education v. Butler, OATH Index No. 554/93, mem. dec. (May 24, 1993).

Discovery Procedure

CONSENT TO ALTER DISCOVERY DEADLINES

Although the parties may consent to alter the discovery deadlines set by these rules, such consent may not be inferred from a failure to object by the party receiving the discovery request. Fire Dep't v. James, OATH Index No. 1187/90 (Oct. 17, 1990), modified as to penalty, Comm'r Dec. (Dec. 13, 1990).

Extraordinary Discovery Devices

DEPOSITIONS

Petitioner’s request to depose several of respondents’ current and former employees denied. Neither petitioner’s vague speculation about the substance and relevance of the witnesses’ testimony nor the confirmation of their national origin is sufficient to establish a “special heightened need” for depositions. Comm’n on Human Rights, ex rel. Batista, et al. v. AJ Westchester Inc., et al., OATH Index No. 883/19, mem. dec. (June 12, 2019).

ALJ denied respondent’s motion to depose petitioner. Depositions are an extraordinary relief not generally available in administrative proceedings. Petitioner has already provided documentation in discovery and respondent will have an opportunity to cross-examine petitioner at the trial. Matter of Dias, OATH Index No. 1436/16, mem. dec. (May 16, 2016).

Respondent sought to depose an eyewitness because he may not be available to testify at the hearing.  Request denied.  Except for speculation, there was no showing that the witness would be unavailable, and even if the witness was unable to appear in person, there was no evidence that alternative arrangements, such as having the witness testify by telephone or video conferencing, were unfeasible. Fire Dep’t v. Buttaro, OATH Index No. 2430/14, mem. dec. (July 17, 2014).

Request for leave to depose investigator who issued the notice of violation denied where respondent failed to assert or establish a special need for taking the deposition that outweighs and justifies the associated costs, burdens, and delays. Business Integrity Comm’n v. D&D Salvage Corp., OATH Index No. 1913/14, mem. dec. (May 2, 2014).

In a Loft Law coverage proceeding, owner's motion to depose prospective witnesses offered to provide testimony regarding deceased couple's occupancy during the window period was denied under subsection (b) for lack of good cause. Under this rule, depositions are only appropriate where a heightened need outweighs the costs and burdens, and the landlord demonstrated no such need for discovery which would only elaborate on the witness affidavits. Matter of Kushner, OATH Index Nos. 2736/09 & 2737/09, mem. dec. (June 11, 2009).

Depositions are not the norm in administrative proceedings, which are intended to provide the streamlined and efficient adjudication of cases. Under this section, depositions are “extraordinary discovery devices,” permissible upon motion, “for good cause shown.” The “good cause” standard is “manifestly stricter” than the “material and necessary” standard applicable to “as of right” discovery, such as requests for document production, and a party seeking permission to take depositions must therefore “show a special heightened need” for the depositions before they will be authorized. Tenants of 51-55 West 28th St. v. Jo-Fra Properties, Inc., OATH Index No. 1019/05, mem. dec. (July 19, 2005) (ALJ denied motion for permission to take depositions in Loft Board proceeding).

Under this section, discovery motions are addressed to the discretion of the administrative law judge. Depositions may be taken upon a showing of good cause by the requesting party. Administrative law judge found that respondent made showing of good cause for depositions, and that due process required two depositions previously ordered. Dep't of Buildings v. DeAcetis, OATH Index No. 1440/02, mem. dec. (June 10, 2002).

INTERROGATORIES

Where respondent voluntarily agreed to answer interrogatories, which are an extraordinary discovery device permissible only upon application for good cause shown, ALJ denied agency’s motion to preclude respondent from offering defense, based upon purported incomplete and unresponsive answers to those interrogatories. Dep’t of Consumer Affairs v. Mirro, OATH Index No. 876/14, mem. dec. (Jan. 31, 2014).

Administrative law judge denies respondent's motion to take interrogatories in a Loft Board overcharge proceeding where all issues would be more expeditiously resolved at a prompt trial, thus eliminating delay occasioned by taking the interrogatories first. Matter of Shannon, OATH Index No. 1757/99, mem. dec. (Apr. 15, 1999).

A motion to compel disclosure of certain facts, arguments and other information was construed to be a motion for leave to submit interrogatories pursuant to this section, and, because the proposed interrogatories were not included with the motion papers, the motion was denied. Matter of Prince, OATH Index No. 1506/95, mem. dec. (Sept. 12, 1995).

Interrogatories are an extraordinary discovery device, and therefore the “good cause” standard for leave to propound interrogatories is stricter than the “material and necessary” standard applicable to discovery devices available as of right. Human Resources Admin. v. Man-of-Jerusalem, OATH Index No. 790/91, mem. dec. (Nov. 12, 1991).

BILLS OF PARTICULARS

Bills of particulars are extraordinary discovery devices that are not allowable absent agreement among the parties or upon motion for good cause shown. Consent to use this device did not excuse petitioner from making a complete response to the demand. Dep't of Correction v. Altreche, OATH Index Nos. 1377-78/98, 1384-86/98, 492/99, mem. dec. (Sept. 22, 1998).

MEDICAL EXAMINATION

A medical examination is an extraordinary discovery device, resort to which is not generally cause to adjourn trial. Dep't of Housing Preservation and Development v. Natal, OATH Index No. 1185/90 (Mar. 22, 1991).

Privileges

PUBLIC INTEREST PRIVILEGE

The identity of complainants to the government is precisely the kind of information that is subject to the public interest and law enforcement privileges. ALJ denied respondent’s request for disclosure of a complainant’s identity, as that information was privileged and purely collateral in nature to the pending disciplinary proceeding. Dep’t of Buildings v. Nobel, OATH Index No. 35/22 (Mar. 15, 2022), adopted, Comm’r Dec. (Apr. 8, 2022).

Agency requested that respondent’s reference to an investigation at trial be omitted from the decision and redacted from the record under the public interest privilege, a common law evidentiary privilege that shields certain confidential government information from discovery.  Request denied because agency failed to show that the allegations of malfeasance and existence of an investigation is confidential information that falls within the ambit of the public interest privilege. Dep’t of Homeless Services v. Anonymous, OATH Index No. 1653/17 (Sept. 19, 2017).

The applicability of the public interest privilege to the investigatory files of a governmental agency was determined by an in camera inspection of the files in question. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

The public interest privilege is a qualified privilege, and it precluded disclosure to the respondent in an employee disciplinary case of documents pertaining to a continuing investigation of an unrelated matter involving the same respondent, and documents containing private information implicating witnesses' privacy concerns, but did not preclude disclosure of documents summarizing investigatory interviews with witnesses, provided that witnesses' addresses and dates of birth were redacted. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

Documents that merely revealed routine steps in the investigative process were not exempt from disclosure under the public interest and law enforcement privileges as documents revealing investigative techniques. Dep't of Sanitation v. Boswell, OATH Index No. 964/05, mem. dec. (Mar. 8, 2005).

TRADE SECRETS

The trade secrets privilege is qualified, not absolute, and, where documents containing trade secrets are sufficiently important to a party's case, disclosure to that party can be compelled upon the condition that the party agree to maintain the confidentiality of the documents. Dep't of Correction v. Carlton, OATH Index No. 329/94, mem. dec. (Apr. 15, 1994).

ATTORNEY WORK PRODUCT PRIVILEGE

Attorney work product privilege only protects documents prepared principally or exclusively to assist in anticipated or ongoing litigation. If a party prepares a document in the ordinary course of its business, it will not be protected. ALJ conducted in camera review of documents allegedly protected from disclosure under the attorney work product privilege and ordered the release of documents that were not found to be privileged. Dep’t of Consumer Affairs v. J&O Security Services, Inc. and Osagie, OATH Index No. 2830/18, mem. dec. (Aug. 29, 2019).

ATTORNEY-CLIENT PRIVILEGE

By sharing the transcript with a third party, tenant waived any attorney-client privilege and transcript properly admitted into evidence over tenant’s objection. Matter of Roche, OATH Index Nos. 1068/20 & 1069/20 (Apr. 8, 2022), adopted, Loft Bd. Order No. 5148 (July 21, 2022), aff’d, 2023 N.Y. Misc. LEXIS 2903 (Sup. Ct. N.Y. Co. 2023).

In human rights cases, there is no attorney-client privilege between the Commission and a complainant, and, therefore, the Commission does not owe a complainant the same obligations as privately retained counsel. Comm’n on Human Rights v. Taylor Recycling Center, OATH Index No. 447/18, mem. dec. (Dec. 20, 2017).

Email copied to attorney was not privileged.  ALJ found there was nothing remotely confidential about respondent’s e-mail because it was actually directed to her supervisors, not to her attorney, clearly venting her frustrations at persistent demands to which she objected. This was not an attempt to solicit legal advice nor could it be interpreted as such. Rather, by copying her attorney, respondent’s apparent intent at the very least, was to signal to her supervisors that someone else was watching, or possibly to intimidate them. Admin. for Children’s Services v. Silverman, OATH Index No. 2614/14 (Sept. 4, 2014), adopted, Comm’r Dec. (Oct. 20, 2014), aff’d sub nom. Silverman v. Carrion, 2015 N.Y. Misc. LEXIS 3944 (Sup. Ct. N.Y. Co. Jul. 6, 2015).

Attorney-client privilege applies only to confidential communication made to an attorney for the purpose of obtaining legal advice.  An e-mail between a press officer and agency attorney as to the existence of an enforcement action concerning a specific premises is not confidential or made in order to obtain legal advice and therefore is not privileged.   Dep’t of Buildings v. 159-17 Meyer Ave., Queens, New York, OATH index No. 1849/10, mem. dec.  (Sept. 3, 2010).

Respondent allegedly used the Office of the Sheriff to carry on the practice of law on behalf of private clients, in violation of the Conflicts of Interest Law. After respondent made a blanket claim of attorney-client privilege in response to petitioner's document request, the administrative law judge directed production of documents for in camera review accompanied by a list of the documents and an itemized description of the basis of the claim of the attorney-client privilege. Respondent's refusal to cooperate by providing identifying information about the documents contained in the files produced for in camera review, despite repeated instruction, requires that the documents sought in discovery, as to which no privilege has been established by respondent, and as to which none is apparent, be released to petitioner. Administrative law judge orders production of documents which, on their face, might be confidential attorney-client communications, but which also refer to fees collected by respondent during the relevant period, be produced in redacted form, showing date, author, matter, addressee(s), typist initials, letterhead and the reference to fees collected by respondent or assessed by respondent. Conflicts of Interest Bd. v. Katsorhis, OATH Index No. 1531/97, mem. dec. (Sept. 25, 1997), adopted in part, modified on other grounds, Conflicts of Interest Bd. Case No. 94-351 (Sept. 17, 1998).

DELIBERATIVE PROCESS PRIVILEGE

ALJ conducted in camera review where petitioner opposed discovery request seeking e-mails asserting deliberative process and attorney-client privileges.  The former privilege protects pre-decisional documents which do not contain purely factual information.  An e-mail between a press officer and agency attorney as to the existence of an enforcement action concerning a specific premises is not deliberative, since it concerns only factual information and communicates no opinion or policy position.   ALJ determined that only one e-mail, which contained drafts of press releases fell within deliberative process privilege.   Dep’t of Buildings v. 159-17 Meyer Ave., Queens, New York, OATH index No. 1849/10, mem. dec.  (Sept. 3, 2010).

Documents containing tentative recommendations fell within the deliberative process privilege against disclosure, and were therefore appropriately redacted. Dep't of Sanitation v. Boswell, OATH Index No. 964/05, mem. dec. (Mar. 8, 2005).