Makris et al v. The ARC Westchester et al

Filing 94

ORDER with respect to 93 Letter Motion to Compel. By 11/22/2023, the Justice Center must respond to Plaintiff's letter motion to compel. If the Justice Center requires additional time due to any delays in submitting an application for an at torney to appear in this matter pro hac vice, it must contact to Chambers via email at [e-mail], cc'ing all counsel of record in this matter, to request an extension of time. The Court will hear argument on Pla intiff's motion at the conference that is currently scheduled for is hereby scheduled for 11/30/2023 at 10:00 a.m. in Courtroom 250 of the White Plains federal courthouse. Plaintiff's counsel is hereby directed to serve a copy of this order on counsel for the Justice Center, and to23file an affidavit of service on the docket by 11/15/2023. SO ORDERED. (Signed by Magistrate Judge Andrew E. Krause on 11/13/2023) (tg) Modified on 11/14/2023 (tg).

By 11/22/2023, the Justice Center must respond to Plaintiff's letter motion to
compel. If the Justice Center requires additional time due to any delays in
submitting an application for an attorney to appear in this matter pro hac vice, it
must contact to Chambers via email at [e-mail],
cc'ing all counsel of record in this matter, to request an extension of time. The
Court will hear argument on Plaintiff's motion at the conference that is currently
scheduled for is hereby scheduled for 11/30/2023 at 10:00 a.m. in Courtroom 250 of
the White Plains federal courthouse. Plaintiff's counsel is hereby directed to serve a
copy of this order on counsel for the Justice
Center,8,and
to file an affidavit of
November
2023
service on the docket by 11/15/2023.

Via ECF
Hon. Kenneth Karas
United States District Court
300 Quarropas St.
White Plains, NY 10601

Dated: November 13, 2023

Re: Makris v. Arc Westchester, et al., 22 Civ. 9604
Your Honor,
We represent Plaintiffs in this case, which concerns the years-long mistreatment
of S.M., at the Foxhall IRA, a group home operated by Defendant Arc Westchester. We
write pursuant to Local Civil Rule 37.2 to request a pre-motion conference in
anticipation of Plaintiffs’ motion to compel a non-party, New York State Justice for the
Protection of People with Special Needs (“Justice Center”), to comply with the
document subpoena Plaintiffs served. Specifically, we seek all documents related to the
Justice Center’s June 25, 2021 investigation into claims of abuse and neglect of S.M.—
beyond just the investigative summary produced to date.1
Plaintiffs conferred with the Justice Center on several occasions, including on
September 27 and October 11, 2023, and exchanged multiple rounds of emails
concerning the dispute. Counsel for the Justice Center also attended the October 5,
2023, conference before Your Honor, at which the Court suggested that it agreed with
Plaintiffs concerning the relevance of the documents sought. Nevertheless, Plaintiffs and
the Justice Center have been unable to reach a resolution.
I.

Background

Plaintiffs’ Amended Complaint alleges that Defendants neglected S.M.,
discriminated against her, and subjected her to disparate treatment and pervasive and
severe harassment because of her serious physical disabilities. See Am. Compl., ECF No.
8 ¶¶ 159–176, 186–200. S.M.’s cerebral palsy and serious physical impairments require
that she use a wheelchair and receive assistance with toileting, dressing, and mobility.
Id. ¶¶ 33–36. Because of these disabilities, Defendants treated S.M. with disdain and
neglected her hygiene and personal care needs, among other violations. See, e.g., id. ¶¶
5, 43–135.

The Justice Center also produced summaries for investigations performed by Defendant Arc. In this
motion, Plaintiffs do not seek the underlying investigative materials for those investigations from the
Justice Center, as they are more readily (or perhaps exclusively) available from Arc.

1

Alanna Kaufman* • Douglas E. Lieb‡ • David A. Lebowitz • Alison Frick*
Alyssa Isidoridy • Pooja Shivaprasad
Also admitted to practice in New Jersey ‡Also admitted to practice in California and Connecticut

*

Kaufman Lieb Lebowitz & Frick
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November 8, 2023

The Justice Center is a New York State agency that investigates reports of abuse
and neglect of individuals with special needs. Plaintiffs’ subpoena to the Justice Center
seeks documents concerning abuse, neglect, mistreatment, and/or deficient care of S.M.
or by any named Defendant at the Foxhall IRA from June 1, 2015 to the present. See Ex.
A, Subpoena.2
On October 26, 2023, the Justice Center produced several investigative report
summaries, one of which relates to a 2021 investigation into allegations of abuse and
neglect of S.M. conducted by the Justice Center. In communications with counsel for the
Justice Center prior to that production, Plaintiffs repeatedly asserted that they are
entitled to all documents concerning any Justice Center investigation, and not simply
the investigative summary. The agency has refused to produce the responsive
documents, relying on New York Social Services Law § 496 and the decision in Coley v.
Shufelt, No. 8:20 Civ. 675, 2021 WL 5176651 (N.D.N.Y. Nov. 5, 2021).
II.

The Justice Center Must Produce Its Full Investigation Materials

Plaintiffs are entitled to the information collected by the Justice Center in its
investigation into allegations of abuse and neglect of S.M. The documents are directly
relevant to the claims here and cannot be obtained from other sources, and the Justice
Center cannot meet its burden of proving that they are shielded from disclosure based
on privilege or burden. See Citizens Union of City of New York v. Att’y Gen. of New
York, 269 F. Supp. 3d 124, 138–39 (S.D.N.Y. 2017).
The underlying materials from the Justice Center’s June 25, 2021 investigation
are relevant and cannot be obtained from any other sources. The investigation concerns
allegations that Defendants Sonia Jarrett, Jamariss Rhodes, and Rosemarie Findley
neglected S.M.’s personal hygiene and acted with open hostility against her—identical
allegations to those that form a substantial basis of the case before this Court. The
summary Plaintiffs have received indicates that the Justice Center’s case file consists of
hundreds of pages of additional relevant documents, including interviews of several
Defendants and other Arc employees; evidence of prior write-ups involving Defendants;
and other clinical and documentary materials. JC_000117–19. The summaries of the
witness interviews conducted by Justice Center investigators demonstrate that the
withheld transcripts, recordings, or additional notes documenting those interviews will
be particularly relevant. For example, according to the investigative summary, Arc nurse
Jill Potter told the Justice Center that staff was “not properly washing” S.M. and would
“look at her with disdain.” JC_000122–23. Arc investigator Melanie Fields “found that
staff was not trained on many aspects of [S.M.’s] medical conditions and how that could
affect her care,” and articulated issues concerning her prior investigations involving
S.M. JC_000123.

Plaintiffs originally sought all documents concerning allegations of abuse, neglect, mistreatment, and/or
deficient care/protection of any kind provided at the Foxhall IRA during the relevant time period.
Plaintiffs’ counsel narrowed the subpoena after conferring with defense counsel and attorneys from the
Justice Center on September 27, 2023, to discuss the agency’s objections based on overbreadth.
2

Kaufman Lieb Lebowitz & Frick
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November 8, 2023

The only objections that the Justice Center has set forth in response to the
subpoena—that release of the documents is prohibited under the Social Services law and
the Coley decision—are wrong and provide no grounds for withholding these responsive
documents.3
First, the privilege rules of Social Services Law § 496 do not, in themselves, limit
the broad scope of discovery in federal civil rights cases. See, e.g., Unger v. Cohen, 125
F.R.D. 67, 69 (S.D.N.Y. 1989) (“A privilege whose source is State law, whether statutory
or decisional, will be recognized in a ‘spirit of comity’ only to the extent consistent with
the overriding federal policy of the civil rights laws.”). “Federal law disfavors privileges
barring disclosure of relevant evidence[.]” King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y.
1988). “Mere adherence to state rules would often improperly elevate the role of
privileges in federal question cases.” Id. In analogous cases involving state
confidentiality statutes, courts within this Circuit routinely find that state laws “do not
expressly create protection by an evidentiary privilege.” Flores v. Stanford, No. 18 Civ.
02468, 2022 WL 354719, at *7 (S.D.N.Y. Feb. 7, 2022) (granting plaintiff’s motion to
compel documents defendants sought to withhold based on N.Y. Exec. Law § 2591(2)(c)(B), designating crime victim parole board statements as confidential).
The fact that the Justice Center found the allegations to be unsubstantiated has
no bearing on whether they are subject to disclosure in this federal case. Courts within
this district have “emphatically reject[ed]” arguments that “‘unsubstantiated’ complaints
should, by virtue of that status, not be ordered produced.” Bradley v. City of N.Y., No.
04 Civ. 8411, 2005 WL 2508253, at *1 (S.D.N.Y. Oct. 3, 2005) (overruling police
objections to producing disciplinary and complaint histories).
Second, although Coley is distinct in that it concerned allegations of workplace
discrimination brought by a group home employee, the decision ultimately supports
Plaintiffs’ position. Coley, 2021 WL 5176651, at *1–2. The Northern District court
determined that disclosure under the Social Services Law must be evaluated under
“applicable federal law” and the “discovery rule of proportionality,” by which the
“competing interests of the parties” are weighed against “the privacy interests of third
parties.” Id. at *3. It ordered the production of “witnesses, contacts, and subjects” within
a Justice Center report to the extent they were a “central area for critical discovery” and
could be kept confidential under the terms of the Protective Order. Id. at *4. The only
portions of the report the court did not order disclosed were those that concerned “the
privacy interests” of other service recipients who were not involved in the central
allegations, where such redactions did “not hamper or impede Plaintiff’s ability to
obtain relevant information to prove her claim[.]” Id. at 3.
Here, Plaintiffs do not seek the disclosure of any information concerning other
service recipients. They seek documents containing evidence, including witness
3 The Justice Center has not asserted any objections to the production of the information based on
burden, and the documents Plaintiffs seek would not be burdensome to produce. All documents are
explicitly listed in the investigative summary provided to Plaintiffs and are presumably contained in the
same Justice Center file from which the summaries were obtained.

Kaufman Lieb Lebowitz & Frick
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November 8, 2023

statements from Defendants and other Arc employees, which constitute a “central area
for critical discovery” in Plaintiffs’ case. Id. at *4. The Justice Center has not articulated
any reason to conclude that a separate cognizable interest exists to protect witness
statements where their identities and statement summaries have been disclosed—and
where those statements are of central importance to the underlying civil case. Nor have
they any argument as to why the Protective Order in this case would not be sufficient to
protect any such interests to the extent they exist. See ECF No. 65.
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We thank the Court for its time and attention to this matter, and we are available
to discuss further at the Court’s convenience.
Respectfully submitted,

Alyssa Isidoridy
Alison Frick
CC.

Sean Childs
Director of Litigation, Office of General Counsel
Justice Center for the Protection of People with Special Needs
[e-mail]