Chapter II - Subchapter C

§ 2-29 Discovery.

After granting complainant’s motion to intervene as a party, and to avoid duplicative discovery, ALJ directed complainant and respondent not to make demands that were duplicative of demands made by and to the Commission. Comm’n on Human Rights v. Taylor Recycling Center, OATH Index No. 447/18, mem. dec. (Dec. 20, 2017).

Motion to Compel Discovery

Motion to compel discovery granted and respondents directed to serve all replies within five days. ALJ cautioned that failure to reply may result in sanctions at trial, including preclusion of evidence or adverse inferences. 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); Comm’n on Human Rights ex rel. Joo v. UBM Building Maintenance Inc., Kuang H. Lee (A.K.A. Kyung Hoon Lee), & Jehwan Kim, OATH Index No. 384/16, mem. dec. (Dec. 1, 2015); Comm’n on Human Rights ex rel. Agosto v. American Construction Associates, LLC, OATH Index No. 1964/15, mem. dec. (Sept. 16, 2015).

Sanctions

In an employment discrimination case, where the employer claimed the complainant was fired for poor performance, administrative law judge 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.1831/10 Manning v. HealthFirst, LLC, OATH Index No. 462/05 (Mar. 15, 2006), adopted, Comm'n Dec. & Order (May 10, 2006).

This section, applicable to Human Rights cases heard at OATH, permits the imposition of sanctions specified in rule 1-33(e) 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).

Imposition of sanctions under this rule are within the discretion of the administrative law judge. ALJ declines to sanction respondent for his failure to comply with a discovery request, given respondent’s lack of English proficiency and unrepresented status. Comm’n on Human Rights ex rel Latif v. New Master Nail, Inc., OATH Index Nos. 1576/10 & 1577/10 (Aug. 10, 2010), adopted, Comm’r Dec. & Order (Nov. 16, 2010).

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).

CPLR

Supplemental Expert Report

On motions for summary judgment, ALJ denied Commission’s request preclude as untimely the supplemental report of respondent’s expert. OATH Rule 2-29(a) states that, while “strict compliance” with article 31 of the CPLR (“Disclosure”) is not required, “the principle of that article may be applied to ensure orderly and expeditious preparation of cases for trial.” The CPLR permits the submission of an expert affidavit in support of a summary judgment motion, even if the expert was not previously disclosed. Further, the Commission was not prejudiced by the supplemental report, as it raises factual issues to be decided at trial and does not demonstrate that respondents are entitled to summary judgment as a matter of law. Comm’n on Human Rights ex rel. Watson, et al. & Fair Housing Justice Center, Inc. v. PPC Residential, LLC, Parkchester Preservation Management Company LLC, & Parkchester Preservation Company LP, et al., OATH Index Nos. 2245/19 & 2246/19, mem. dec. (Mar. 17, 2023).

Medical and Mental Health Records

Federal law does not govern discovery disputes in Human Rights cases. Under New York law, it is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of CPLR 3121(a) when a party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue. Where the Commission has placed complainant’s medical history in controversy by requesting physical or emotional distress damages, complainant must provide HIPAA-compliant authorizations for the release of medical records. Comm’n on Human Rights ex rel. Vincent v. Health & Hospitals Corp. (Woodhull Hospital Ctr.), OATH Index No. 1260/17, mem. dec. (May 4, 2017), adopted, Chair’s Order on Request for Interlocutory Review (Dec. 12, 2017); Comm’n on Human Rights ex rel. Rubin v. Westbeth Corp. HDFC, Inc., OATH Index No. 1913/15, mem. dec. (Feb. 24, 2016).

Depositions

Non-party depositions may only be taken with permission of the ALJ for good cause shown. The “good cause” standard is “manifestly stricter” than the “material and necessary” standard applicable to “as of right” discovery. ALJ denied Commission’s motion to depose respondent’s current and former employees because no special heightened need to depose them was articulated or established. Comm’n on Human Rights ex rel. Batista, et al v. AJ Westchester Inc. et al, OATH Index No. 883/19, mem. dec. (June 27, 2019); 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).

Depositions of parties are permitted as a matter of right. Comm’n on Human Rights v. Space Hunters, Inc., OATH Index No. 997/04, mem. dec. (June 22, 2004).