Order: John Doe v. Archdiocese Of New York, Holy Child Church, Holy Child School Of Religion, Morgan Kuhl

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                                (FILED: NEW YORK COUNTY CLERK 07/10/2022 05:08 PM INDEX NO. 951296/2021

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/10/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTIES OF BRONX, KINGS, NEW YORK, QUEENS AND RICHMOND

: SECOND AMENDED
Inre: CHILD VICTIMS ACT LITIGATION : CONFIDENTIALITY ORDER

CONFIDENTIALITY ORDER
Pursuant to Sec. IX of CMO 2

WHEREAS on February 24, 2020, the Court issued Case Management Order No. 1
(CMO 1);

WHEREAS Section IX of Case Management Order No. 2 (“CMO 2”), dated J une 16, 2020,
contemplated the issuance of a confidentiality order that would apply to disclosure in all Child
Victims Act (“CVA”) (L. 2019 c.11) Actions venued in the Counties of Bronx, Kings, New York,
Queens, and Richmond;

WHEREAS pursuant to Section IX (A) (1) of CMO2, on June 22, 2020, Plaintiffs’ Liaison
Counsel (the “PLC”) and Defendants’ Liaison Counsel (the “DLC”) each submitted alternative
proposed Confidentiality Orders to the Court;

WHEREAS on September 18, 2020, the Court issued a Confidentiality Order governing the
pre-trial phase of actions litigated under the CVA;

WHEREAS the Court granted leave for the DLC and CVA Defendants to move to vacate
the September 18, 2020 Confidentiality Order, and created New York County Index Number
95000/2020 and Kings County Index Number 999999/2020 as master index numbers available for
vacatur motions to he filed referable to all CVA cases in the aforementioned counties of the First
and Second Departments, respectively, of the Appellate Division of the Supreme Court of the State
of New York;

WHEREAS following submission of several motions to vacate and/or modify the
Confidentiality Order and oral argument on those motions, on March 30, 2021, the Court issued
a Decision and Order regarding the Confidentiality Order, to which was annexed an Amended
Confidentiality Order showing in redline the Sections of the September 18, 2020 Confidentiality
Order that were amended and/or rescinded, and which Decision provided the rationale for each
section that was amended and/or rescinded as shown in the annexed redline (see March 30, 2021
Decision and Order with Amended Confidentiality Order annexed hereto as Exhibit B);

WHEREAS the DLC and several CVA Defendants filed Notices of Appeal from the

1 of 56(FILED: NEW YORK COUNTY CLERK 07/10/2022 05:08 PM

NYSCEF DOC. NO. 29

March 30,

Appellate

WHEREAS on May 21, 2021, the Appel
ransferring

V (1) (a
Order;

granting
appea.

consolidating
entiality Or

Confi

Dept 202
Confidenti

hereto as Exhibit C);

enti
9c.

Confi
(L. 20

shall rema

NOW, THEREFORE this Court promu

WHEREAS on

of the March 30, 202
the appellants to perfect their appeals for the Octo
eals from the March 30, 2021 Decision an
e perfected on a sing

WHEREAS
unanimous Decision and Or

WHEREAS

WHEREAS

2021 Decision and Order in both tl
ivision, Second Department;

‘or interim relief, requesting tha
the sharing provisions) and IV (4

e appeals from the March 30, 2021 Order noticed in
epartment under the Kings County master in
First Department;

WHEREAS the DLC and CVA Defer
epartment

ex number, 999999/2'

mdants applied to tl
to stay, inter alia, Sections II (1), III (1)
the March 30, 2021 Amended Confidentiality

cour

uly 15, 2021, the Appellate Division, First

e applications for interim relief to

each of the ap,

er and directing that they

on December 7, 2021,

]), modifying
ality Order

see December 7, 202

is cour
ality Order governing the pre-trial p
11), including this action; and

e provisions of this Secon
in in effect unless modified;

xtent of staying
Decision and Order

the language in Sections II

ie Ap

epar

2D

r 2021 Term, and, on

€ Teco.

ella

d Order and Amen
rd; and

pellate Division, Firs’

finds good cause exis
ase 0:

Amended C onfidentialit

gates this Second Ament

ellate Division

ts for the issuance of this Second Amen
actions litigated under the Child Victim ’s Act

INDEX NO. 951296/2021
RECEIVED NYSCEF: 07/10/2022

e Appellate Division, First Department and the

late Division, Second Department, issued an Order
e Appellate Division, Second
020 to the Appellate Division,

e Division, First
a),

ment, issued an Order
e sharing provisions pending
nd Amended Confidentiality Order, directing

e court's own motion,
led

Department issued a

ler, Matter of Child Victims Act NYC Litig. (200 AD3d 476, 478 [1st
), III (1) (a) (i), and IV (1) (a) of the Amen

ed

ecision and Order annexed

ed

ty Order, as set forth below,

ed Confidentiality Order

implementing the reasoning and modifications directed by this Court’s March 30, 2021 Decision

and Order (as to
Appellate Division,

IT IS HEREBY ORDERED that all persons and entities subjec'
e parties, their attorneys, representatives, agents,
non-parties providing discovery in this action, and all other interes‘
constructive notice of this order, including their counsel, shall adhere to

without limitation,

lL Applicability.

1,

e former section V [rescinded] and section VIII
First Department in its December 7, 2021 Decision and Order:

(1) [modified]) and the

to this order, including,
experts and consultants, all
ed persons with actual or
e following terms:

The terms and conditions of this order will be applicable to and govern all

information, documents, and tangible items produced in

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is action, including, but(FILED: NEW YORK COUNTY CLERK 07/10/2022 05:08 PM

NYSCEF DOC. NO. 29

II.

Ill.

not limited to, responses to requests for admission, deposition testimony, and
deposition transcripts and/or videos, regardless of their medium or format
(“Discovery Materials”). Discovery Materials that are designated as “Confidential
Information,” which includes Confidential Health Information, are referred to
herein as Confidential Discovery Materials.

Any person subject to this order who receives Confidential Discovery Materials
(“Receiving Party”) from another person (“Producing Party”) shall not disclose
such Confidential Discovery Materials, except as expressly permitted hereunder.

Discovery Materials that are designated by a non-party as “Confidential
Information” will be treated as Confidential Discovery Materials under this order
regardless of whether the non-party is or becomes bound by the terms of this order.

Use and Disclosure of C onfidential Discovery Materials.

1,

No Receiving Party may disseminate or cause the dissemination of any Confidential
Discovery Materials to any person not authorized to receive such materials
pursuant to § IV herein, or any person not reasonably involved in a related
enforcement of insurance coverage rights (including any insurance coverage
litigation (“Coverage Litigation’”)) with respect to such a claim (consistent with §
IV (e) herein).

Nothing in this order will affect or restrict a Producing Party’s maintenance, use,
and/or disclosure of its own documents or information. Disclosures (other than
public disclosures) by a Producing Party of its own documents or information will
not affect any designation as Confidential Discovery Materials under this order.
Nothing in this order will prevent or restrict counsel from rendering advice to their
clients, and in the course thereof, relying on an examination of Confidential
Discovery Materials.

The court may issue additional orders conceming the use and disclosure of
Discovery Materials and Confidential Discovery Materials, including in connection
with depositions noticed in multiple actions concerning the same perpetrator.

Confidential Designation.

1,

Any party may designate all or portions of Discovery Materials as “Confidential

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RECEIVED NYSCEF: 07/10/2022

Information” to the extent that it believes, in good faith, such designated materials
need protection from disclosure under federal, state, or local privacy law because
such material contains:

a. “Confidential Information,” which includes without limitation (i) non-
publicly disclosed information, including data, summaries, and
compilations derived therefrom, that contains scientifically, medically,
financially, commercially sensitive information and/or personal
information, including educational and employment records, and private
information as defined in NY Shield Act, N.Y. Gen. Bus. Law § 899-aa
(“PI”) and (ii) Confidential Health Information, as defined below;

b. “Confidential Health Information,” includes “patient information,” as
defined in New York State Public Health Law § 18(1)(e), and “protected
health information” and “individually identifiable health information,” as
defined in 45 C.F.R. § 160.103, promulgated pursuant to the Health
Insurance Portability and Accountability Act of 1996, as amended
(collectively, “HIPAA”), and which is permitted to be disclosed in the
context of judicial and administrative proceedings pursuant to 45 C.F.R. §
164.512(e)(1), subject to certain requirements contained therein.
Confidential Health Information includes any information that a party
believes, in good faith, needs protection from disclosure under federal, state,
or local privacy law because it identifies an individual in any manner and is
relate (1) the past, present, or future care, services, or supplies relating
to the health or condition of such individual, (2) the provision of health care
to such individual, or (3) the past, present, or future payment for the
provision of health care to such individual. Confidential Health Information
includes medical bills, claim forms, charge sheets, medical records, medical
charts, test results, prescriptions, medical notes and dictation, medical
invoices, itemized billing statements, remittance advice forms, explanations
of benefits, checks in payment of medical services or supplies, medical
notices and requests, social security numbers, and similar information.
Confidential Health Information includes all notes, summaries,
compilations, extracts, abstracts, or oral communications that contain, are
based on, or are derived from Confidential Health Information but does no
include such information when individual identifiers are not included and/or
the information is de-identified in accordance with the HIPAA de-
identification standard set forth in 45 C.F.R. § 164.514(a). Confidential
Health Information also includes any materials subject to the confidentiality
provisions of any applicable federal, state, or local law, including, but no
limited to the New Y ork Public Health Law, CPLR § 4505, the Americans
with Disabilities Act, as amended, the Genetic Information
Nondiscrimination Act of 2008 (“GINA”), the Mental Hygiene Law, and
the Confidentiality of Alcohol and Drug Patient Records under 42 U.S.C.
Sec. 290dd-2 and 42 C.F.R. Part 2, and other applicable privacy laws, or
any applicable statutory or common law.

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NYSCEF DOC. NO. 29

2.

Depositions. When

Information:

a. Portions of the deposition and deposition exhi
“CONFIDENTIAL INFORMATION”
provisions of this order either by (i) in
leposition that
e reporter wil
testimony as “Confidential Information
e reporter and all counse
(10) days of receiving the deponent’s signature or

(ii) notifying

leemed signe
Confidential
portion with

or exhibit as
parties may al
entirety until

a deposition includes

a question calls for Con:
| mark the pages of the

pursuant to CPLR § 3

so agree to treat a deposi
trial.

b. The Producing Party will have the rig
during such time as the Confidential

person other

staff and associates);

IV below.
Documents. With res]

Confidential
Producing Party or i

Electronically Stored

Information ot!

Discovery Materials as Confi

transmitted by secure

means.

5 of 56

ie disc!

licating 01
‘idential Int
transcrip'
Governed

16(a), 0

an the subject of the Confidential Information; the
(and his or her counsel); parties and counsel for all parties (including their
e court reporter, and the persons identified in Section

ect to any Discovery Materials or portion thereo!
er than deposition transcripts and exhibi
ts counsel may designate such information contained in the
ential Information by stamping or otherwise marking
as “CONFIDENTIAL INFORMATION?” the protected portion in a manner that
will not interfere with legibility or audibility.

Information. Electronically stored information (“ESI”) that a
Producing Party wishes to designate as Confidential Information shall be marke
as “CONFIDENTIAL INFORMATION.” If the ESI is transmitted through a file
transfer protocol or other electronic transmission, it shall be encrypted with the
password supplied in separate correspondence to the recipient or otherwise

of record, in writing, wi

leposition transcri,

INDEX NO. 951296/2021
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To the extent reasonably practicable, a Producing Party will limit its
lesignation of Confidential Information to specific portions of material that
jualify under this definition. Where it would not be cost effective or would
be burdensome, however, the Producin
group of Discovery Materials as “CON

Party may designate an entire
FIDENTIAL INFORMATION.”

osure of Confidential

its may be designated as
as appropriate, subject to the

m the record during the
‘ormation, in which case

containing the designated

y Protective Order,” or
in ten
the date the transcript is
e portion that contains

nformation, and the Designating Person shall reproduce that
@ appropriate designation. During that 10-day period
identified above, all parties will treat the entire
if it had been designated as Confi
tion transcript as Confi

t, video
ential Information. The
ential in its

it to exclude from the

nformation

deposition,
is to be disclosed, any
leponent(FILED: NEW YORK COUNTY CLERK 07/10/2022 05:08 PM

NYSCEF DOC. NO. 29

IV.

Disclosure of C onfidential Information.

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RECEIVED NYSCEF: 07/10/2022

Confidential Information will not be disclosed by the Receiving Party except as permitted

by this Order.

1. Permissible Disclosures. A Receiving Party may disclose a

Confidential Information only to the following persons:

the

invo.
disc
disc

ving the same alleged
osure, the Receiving

arties to a civil claim related to allegations of cl

osure to the Producing Party, specifying the date
the intended recipient(s), and nature of the documents to

abuser. Not less than 20
Party must provide notice

be disclosed;

Producing Party’s

ild sexual abuse

lays prior to such

of the intended
ereof, identity of

such parties’ counsel, which shall mean in-house counsel, outside counsel

of record, and other attorneys, paralegals, secretaries, ott
ort, investigators, copy-service providers,
tants) employe

vendors (such as litigation

scanning providers, and document-management consul

retained by counsel;

the
and mock jurors), and their

with this action, who first si

or the Receiving Party shal
e author, addressee, an
referenced in a document;

e insurers and reinsurers,
Coverage Litigation, upon

consultants agreeing to be

Coverage Litigation shall
finding that such Materia
roduced in the Coverage
Materials are produced in

Court in the Coverage Li
Materials are produced in
an appropriate confidentia!

Protective Order”, in the form at

having received a copy of tl

e Coverage Litigation and th

order permits the disclosure of

sup,

sup,
ign
tac!
] retain;

at

le appro,

ound by that order’s terms.

Confidential Discovery

not
s are rel
Litigation. Whether any Confi
the Coverage Litigation is to

e parties to the Coverage Litigation or, in the event of

tigation. In the event Confi

er support staf!

or other person indicated on a document
locument or that a party believes is

e Coverage Litigation, they shall be subjec
ity order entered in the Coverage Litigation;

or

or

Receiving Party’s expert witnesses, consultants (e.g., jury consultants
ort staff, retained by counsel in connection
an “Agreement To Be Bound by Stipulated
ed hereto as Exhibit A, which counsel

as

including their counsel and consultants in the
riate entry of a confidentiality orderin
e insurers, reinsurers, their counsel and

The fact that this
Materials in the

e construed or otherwise deemed as a
evant to or otherwise required to

be
ential Discovery
e determined by
a dispute, by the
ential Discovery
to

a witness who a party’s counsel in good faith believes may

at a deposition or trial, w!

o first signs an “Agreement

e called to testify
to be Bound by

Stipulated Protective Order” in the form attached hereto as Exhibit A, which
counsel for the Receiving Party shall retain;

6

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NYSCEF DOC. NO. 29

RECEIVED

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g. any mediator, arbitrator, referee, or special master that the parties agree to

or that this court appoints;

h. this court, including any appellate court, its support and administrative

personnel; and

i. any court reporter and associated support staff employed in this

litigation.

Authorized Disclosures. A Receiving Party may disclose Confidential Information

if: (i) the Producing Party or the subject of
applicable and to the extent of their authority, consents
e parties and the subject o

court, after notice to

the Confidential Information, as
to such disclosure; (ii) the
the Confidential Information, as

applicable, allows such disclosure; or (iii) the Receiving Party is required to
disclose Confidential Information pursuant to a subpoena or other legal demand, by

aw, or
extent permitted by law, the Receiving
Producing Party and
cooperation, or minimize disclosure of suc!

Disclosures by Covered Entities and/or

Party gives prom
to the subject of the Confi
so that the Producing Party can oppose, with the Receiving Party’s

ential Information, as

Confidential Information.

Health Care Providers an

‘o a regulatory entity or other government agency, provided that, to the
t notice to counsel for the

applicable,
reasonable

Business

Associates. Subject
“business entities” (as defined by 45 C.
providers” (as defined by New York Pul
authorized to disclose Confidential
nformation, pertaining to this action

of this section.

Challenges to Designation as Confidential

(0 a properly executed release, al
FR. § 160.

ic Health Law § 18 (1)(b))

nformation. A party who ob;

designation as Confidential In
action, send

‘o counsel for the Producing

documents or information that the challenging party contends should be
ection.

designated and the grounds for the obj

ormation may, at any time

Party a written

The cl

Producing Party shall meet and confer about

challenging party and the Pro
Party shall seel

lucing Party
relief from the court in ac

burden of justifying the pro:
originally designated, unless o

riety of its

ten (10) business days of the ruling or the

within ten (10) court days of the meet and confer. T

erwise ordered by
Party or the subject of the Confidential Information, as
designation in writing. In the event that the court mules that
designation should be changed, the Producing Party shall reproduce copies of all
materials with their designations removed or changed in accordance wi

e court, W!

the objection within ten (10

of the Producing Party receiving such written notice unless otherwise agreed.
cannot reach agreement, the

cordance with its rules and
designation, w:

applicable, wi
the challenge

schedule set by

allenging party and the

e Producing Party will have
ich will c
the court or unless the Producing

1 “covered entities” and
03) and/or “health care

are hereby

nformation, including Confidential Health
ose persons designated in paragraph 1.a

notice, specifying the

differently
court days
the
Producing
rocedures
the
ontinue as

thdraws its
material’s

the ruling
ichever is

later. “Writing” and “written notice” shall include electronic communications.

7

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NYSCEF DOC. NO. 29

V.

VI.

VII.

Identities of Abuse Survivors. [RESCINDED]

Procedures for Filing C onfidential Discovery Materials with the C ourt.

1. If a party wants to file materials containing Confidential Information (“Moving
Party”), such filing shall be initially submitted directly to the court via electronic

mail with simultaneous transmission to all other parties to the action. The

Confidential Information shall not be filed in the public record until the court rules

on whether the Confidential Information should be redacted or sealed as outlined

below.

2. Within five (5.

court days of any such submission to

Moving Party and the Producing Part shall meet and

attempt to reach agreement as to appropriate redactions and/or sealing of any
Confidential Information contained in the submission. If Counsel for those parties
cannot reach agreement, any remaining dispute sh

by those parties to the court, not to exceed five pages, wi

of the meet an

3. Within five (5) court days of
Information should be re

confer. Any
request full briefing of the
submitting the joint letter to the court.

party may use its portion of any such joint letter to
ispute. The Moving Party shall be responsible for

the court, counsel for the
confer in good faith in an

all be submitted via a joint letter

ithin ten (10) business days

e court issuing its ruling on whether the Confidential
acted or sealed, the Moving Party shall file the material

consistent with the court’s ruling. If the court rules that the Producing Party has met

its burden of showing that

Confidential Information should be redacted or sealed,

the Moving Party shall redact the Confidential Information or file the Confidential
Information under seal in accordance with the rules of the court and the court’s

order.

4. Any party shall be permitte
without seeking leave of court

Inadvertent Disclosure.

to file under seal Confit

a. Confidential Information. If a party inadvertent

without a confidentiality designation,
written notice to the Receiving Party that the materials are Confidential

ie Pro

Discovery Materials under this order and promp

with an appropriate designation. The Receiving Party will treat the material

as Confidential Discovery Materials upon receip'
five (5) business days, take all reasonable steps

from persons to whom the Receiving Party has disclosed such material
without a confidentiality designation o:
destroyed such materials.

b. Privileged_Materials. If a Producing
information subject to a claim of attorney-client privilege, attorney worl

8

8 of 56

r to confirm such persons hav

Party inadvertently discloses

ential Health Information

ly produces any materials
lucing Party may provide

ly reproduce the materials

s
of such notice and, within
to retrieve such materials
s
e

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NYSCEF DOC. NO. 29

product doc!

trine, patient privacy protections, and/or other protections from

disclosure (“Inadvertently Disclosed Information’), such disclosure, in and

of itself, wil!

not constitute or be deemed a waiver or forfeiture of any claim

of privilege and/or other protection from disclosure with respect to the
Inadvertently Disclosed Information.

i.

iii.

Within five (5) business

written notice of such inadvertent disclosure,

days after a Producing Party provides
ie Receiving Party

will return, sequester, or destroy all such Inadvertently Disclosed

Wi
in (i), the Producing Party

Disclosed Information ap,
roduce redacted copies of

compelling production of
the Producing Party bears

Such motion practice shall

Consistent with New Y ork Rule o
any other applicable rules, if a Receiving Party reasonably believes that a
document produced by a Producing Party is subject to attorney-client
privilege and/or other protection from disclosure, the Receiving Party shall

promptly noti:

nformation in its possession and provide to the Producing party a
written certification that (a)
en done because the Receiving Party has a good faith belief that
the information was not inadvertently disclosed or that the
information is not the proper subject of any claim of attomey-client
rivilege, attormey work product
rotections, and/or other protections from disclosure. In addition, if
the Receiving Party has disclosed such information
receiving notice, the Receiving Party will (a) take reasonable steps
‘o retrieve the information or ensure it has been destroyed, or (b)
rovide to the Producing Party with the names and contact
information to whom this information was disclosed.

is has been done, or (b) this has not

loctrine, patient privacy

others before

in thirty (30) days from the date of the certification referenced

will (a) produce a privilege log for the

nadvertently Disclosed Information, and (b) if the ‘Tnadvertently

ears only in portions of documents,
those documents.

f a Receiving Party thereafter moves the court for an order

e Inadvertently Disclosed Information,
e burden of establishing the privileged

or protected nature of any Inadvertently Disclosed Information.

e governed by the process described in

Section 6. Nothing in this order shall limit the right of any party to
request that the court conduct an in camera review of the
nadvertently Disclosed Information.

Professional Responsibility 4.4(b) and

y the Producing Party. Within ten (10) days from a request

by the Producing Party, the Receiving Party will return or destroy all copies
of the document and certify in writing that this has been done. In any event,
the Receiving Party will immediately cease all use of the materials at issue,
will not read any unread portion of

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e documents, and will not refer to the

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NYSCEF DOC. NO. 29

VIII.

1,

Additional Provisions

prior ba
sexual abuse perpetrator, are disco

[reatment of

privileged content during tl

Prior Bad Acts. Generally, consistent wi

Discovery Materials

erable,

Upon

e course of this matter.

the substance of this order, records 0:
acts', including previous accusations of sexual abuse, against an allege
, and will be disclosed upon request.

Termination of Action. Within sixty (60

INDEX NO. 951296/2021
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lays of
pro:

copies,

chil

action.

Discovery Materials of another
archives or disaster recovery systems,

retrieved or used for any purpose after

No Waiver. No
limitation of any kind by a party or non-party of: (a) its rig
discovery request on any ground; (b) any applicable privi
to the admissibility ai
tion, nothing in this ord
ent privilege by Plaintiff by reason of
‘or damages. This order shall not prevent a party from applying to
er or additional protective orders.

its right to object
evidence. In addi
of physician-pati
asserting claims
the court for furt

essional malpractice concern:
including any appeals, each party
orreturn to the Producing Party al

erein.
sexual al
same alleged
Materials unti!

e later of the expiration o:

excerpts, and summaries

such int
Nothing herein s!

ing in

ng

of Cont
However, counsel to a party
use involving one or more o
abusers is not obligated to

pro

accom
ential
s before the court, and will continue
i at is kept after the conclusion of this
arty or its counsel to delete Confidential

‘ormation
all require a
arty that

is order shall

the applicable statute(s) of limitations regarding
tion or final termination o!
to the action and its counsel must delete, destroy,
Confidential Discovery Materials, including
idential Discovery Materials contained

€ acl

‘o other civil claims

counsel
uct
court

may reside on

the conclusion of

the same parties or one or more 0:
delete, destroy, or return Discovery
sixty (60) days after such claims are terminated, including appeals.
Notwithstanding the foregoing,
communications, attorney work
electronic copies of pleadings,
correspondence, transcripts an
contain, attach or refer to Confi
record of any proceeding
order with respect to all

shall be entitle
and, for archival purposes, paper
submissions,
anying exhibits, and memoranda that
Discovery Materials, including

trial of any document,
ler shall be construed as

this action,
any
related to allegations o:
the

retain clien
an
its,

including exhi

a complete
e bound by this

its respective electronic

, except that such materials will not be

is action.

be construed as an abrogation, waiver or

it to object to any
lege or protection; or (c)
testimony or other
imiting any waiver

ringing this action and

Non-A pplicability of Order. The restrictions and obligations set forth in this order

will not apply to any information that is publicly available, unless tl

e information

| For purposes of Section VIII(1), “Prior Bad Acts” are broadly defined to include documents, reports, complaints,
notations within personnel files, and elsewhere, of previous accusations of abuse against an alleged sexual abuse

perpetrator.

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has become public in violation of this order. No party will be responsible to another
party for disclosure of information that would otherwise be confidential under this
order if such information is not labeled or otherwise identified in accordance with
this order, except that readily recognizable “Confidential Health Information”
cannot be disclosed by any party, even if inadvertently produced without a
“CONFIDENTIAL INFORMATION” designation.

5. Notices. Transmission by electronic mail is acceptable for all notification purposes
under this order.

6. Modification. This order may be modified by written agreement of the Parties,
subject to approval by the court, or by application to the court. The court reserves
the right to modify this order for any reason that the court deems appropriate.

7. Duration. This order only applies to pre-trial matters because the court
acknowledges the standard for redacting or sealing information may be different
for trial.

8. Survival. After termination of this action, the provisions of this order shall continue

to be binding, except with respect to those documents and information that become
a matter of public record. This court retains continuing jurisdiction over all persons
subject to this order for enforcement of the provisions of this order or to impose
sanctions for any contempt thereof.

Dated: July 6, 2022

ALEXANDER. TISCH, J.S.C.

LA ‘NCE LOVE, J.S.C.

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EXHIBIT A

12

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NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/10/2022

AGREEMENT TO BE BOUND BY CONFIDENTIALITY ORDER

lL, , have read the foregoing
confidentiality order (“order”) in this action and have received a copy of the order. I agree that I
will not disclose any Confidential Discovery Materials, as defined in the order, other than as
expressly permitted. I will destroy or return all Confidential Discovery Materials to the attorney
who provided it to me, upon request of that attorney, and I shall not retain any copies of said
Confidential Discovery Materials or any information contained within those Confidential
Discovery Materials designated as Confidential after the termination of this litigation, including all
appeals.

By acknowledging these obligations, I understand that I am submitting myself to
the jurisdiction of the Supreme Court of the State of New Y ork, [ ]

conceming any issue or dispute arising hereunder and that my disclosure of Confidential
Information in any manner contrary to the terms of the order may subject me to sanctions for

contempt of court.
Dated Signature:
Printed Name:
13

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EXHIBIT B

14

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SUPREME COURT OF THE STATE OF NEW YORK COUNTIES OF BRONX, KINGS,
NEW YORK, QUEENS AND RICHMOND

DECISION AND ORDER RE:
In re: CHILD VICTIMS ACT LITIGATION : CONFIDENTIALITY ORDER

CASE MANAGEMENT
ORDER (“CMO”) No. 2

The following motions are decided in accordance with the attached decision and order of the Court:
ndex 950000/2020 Seq. 001 (Motion & Cross-Motion)
ndex 950000/2020 Seq. 002
ndex 950000/2020 Seq. 003
ndex 950000/2020 Seq. 004
ndex 950000/2020 Seq. 005
ndex 950000/2020 Seq. 006
ndex 950000/2020 Seq. 007
ndex 950000/2020 Seq. 009
ndex 950000/2020 Seq. 001
ndex 999999/2020 Seq. 002
ndex 999999/2020 Seq. 003
ndex 999999/2020 Seq. 004
ndex 999999/2020 Seq. 005
ndex 999999/2020 Seq. 006
ndex 999999/2020 Seq. 001
ndex 70061/2020E Seq. 001
ndex 950137/2019 Seq. 003
ndex 512321/2020 Seq. 005
ndex 502720/2020 Seq. 001
ndex 400044/2020 Seq. 001

The Court further directs that a copy of this decision and order be uploaded to all existing, and
‘uture, cases being litigated under the Child Victims Act (L. 2019 c.11) (“CVA”) in the Supreme Court of

the State of New Y ork in the counties of Bronx, Kings, New Y ork, Queens, and Richmond.

Dated: March 30, 2021 Hon,__ i Lihue
GEORGEA LVER, |S.

O CASE DISPOSED IN ITS ENTIRETY CASE STILL ACTIVE

2. MOTION IS......cccccssssesesssseeessssseecsssseessssseesssse O GRANTED O DENIED BcRANTED IN PART O OTHER

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTIES OF BRONX, KINGS, NEW YORK, QUEENS AND RICHMOND

DECISION AND ORDER RE:
CONFIDENTIALITY ORDER

CASE MANAGEMENT
ORDER (“CMO”) No. 2

With the instant application, defendants in cases filed under the Child Victims A ct (L. 2019
c.11) (“CVA”) in New Y ork City move to vacate and/or modify this court’s Confidentiality Order
issued in conjunction with the litigation. In opposition, plaintiffs prosecuting cases under the CVA
in New York City argue that this court’s Confidentiality Order should stand without major
modification.

BACKGROUND

In 2019, New York State enacted the CVA which, inter alia, (1) extended the statute of
limitations on criminal cases involving certain sex offenses against children under 18 (see CPL
§30.10 [f] ); (2) extended the time which civil actions based upon such criminal conduct may be
brought until the child victim reaches 55 years old (see CPLR §208[b)); and (3) opened a one-year
window reviving civil actions for which the statute of limitations has already run (even in cases
that were litigated and dismissed on limitations grounds), commencing six months after the
effective date of the measure, i.e. August 14, 2019 (see CPLR §214-g).!

When enacting the CVA, New York’s Legislature did not create a comprehensive set of
procedural rules and discovery standards for how cases would be litigated under the statute.
Recognizing this, shortly after the revival period opened, the court appointed a CVA Steering

1 Due to the COVID-19 public health emergency, on May 8, 2010, New Y ork Governor Andrew Cuomo
(“Governor Cuomo”) issued an executive order extending the look back window for victims to file claims
under the Child Victims Act until January 14, 2021. On August 3, 2020, Governor Cuomo signed into law
an additional extension of the special filing period by a full year. Claims under the statute can now be filed
until August 14, 2021.

1
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Committee, consisting of defense attorneys representing institutional CVA defendants (“DLC”)
and plaintiffs’ attorneys representing numerous CVA plaintiffs (“PLC”) in actions in the Supreme
Court for Bronx, Kings, New Y ork, Queens, and Richmond Counties, to liaise between the court
and all CVA counsel. Thereafter, on February 24, 2020, the court issued Case Management Order
No. 1 (“CMO 1”), which “applies to all actions filed or hereafter filed in the Supreme Court in and
for the counties of Bronx, Kings, New Y ork, Queens, and Richmond pursuant to the [CVA].”
Then, on June 18, 2020, the court issued Case Management Order No. 2 (“CMO 2”), annexing to
it as Exhibit C, the “Standard Automatic Disclosures Directed at Defendants,” which set forth
broad categories of documents to be produced by CVA defendants subject to objection. Section
IX(A)(1) of CMO 2 directed the DLC and PLC to eitherjointly submit a proposed Confidentiality
Order or to submit alternate proposals to the court by June 22, 2020 and stayed CVA defendants’
disclosure obligations pending entry of a Confidentiality Order.

On June 22, 2020, the DLC and PLC each submitted their proposals with accompanying
letter briefs. The court then held two conferences regarding the parties’ submissions and
entertained oral argument by the respective liaison committees. Following the second conference
held on September 10, 2020, the DLC submitted a second letter brief on September 11, 2020. On
September 18, 2020, the court issued the Confidentiality Order.

ARGUMENTS

With the instant application the DLC, and additional defendants, seek to vacate or modify
the Confidentiality Order by arguing that it improperly abrogates defendants’ statutory, common
law, and federal and state constitutional rights in excess of the authority of this court.

IL Section VIII(1)

Most prominently, defendants contend that Section VIII(1) of the Confidentiality Order
improperly and prematurely ruled that records concerning (i) prior and subsequent undefined “bad
acts” by “an alleged sexual abuse perpetrator” and (ii) subsequent “corrective measures” taken by
an institutional defendant “are discoverable, and will be disclosed upon request.” More
specifically, the DLC challenges Section VIII(1) of the Confidentiality Order by arguing that it
“goes out of its way to direct disclosure of records regarding subsequent corrective measures that
are not permitted under New Y ork State law and the disclosure of which would constitute an
improper invasion and intrusion of religious institutional CVA [d]efendants’ First Amendment
rights.” In addition, the DLC contends that Section VIII(1) lacks specificity with respect to what
constitutes a “bad act,” and whether that term broadly applies to conduct unrelated to allegations
of child sex abuse. Because Section VIII(1) directs disclosure without affording parties the right
to object, and move for a protective order, the DLC states that it runs athwart of defendants’ rights
to due process and liberty.

In opposition, the PLC contends that the Confidentiality Order’s requirement that
defendants produce records of an alleged abuser’s other “bad acts” is entirely consistent with the
CVA and CPLR §3101(a)’s liberal discovery standard. Citing authorities in both the First and
Second Department, the PLC avers that where there is any possibility that requested information
may be used as evidence-in-chief, in cross-examination, or on rebuttal, it is deemed material for

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discovery purposes, and therefore should be disclosed (see e.g., First Equity Realty v. Harmony
Group, II, 129 NY S3d 777, 777 [1st Dept 2020]; Matter of Metro-North Train Accident of Feb. 3,
2015, 178 AD3d 931, 933 [2d Dept 2019]). The PLC further emphasizes that courts have long
recognized the distinct standards that govern the discoverability and admissibility of evidence —
and, critically, that “[p]retrial disclosure extends not only to admissible proof but also to testimony
or documents which may lead to the disclosure of admissible proof” (Fell v. Presbyterian Hosp.
in N.Y. at Columbia-Presbyterian Med. Ctr., 98 AD2d 624, 625 [1st Dept 1983]).

In accordance with liberal disclosure rules, the PLC emphasizes that courts have repeatedly
held that documents and information about prior and subsequent incidents, as well as remedial
efforts taken, may be discoverable under CPLR §3101’s liberal standard — even if ultimately
inadmissible at trial (see, e.g. Bigman v. Dime Sav. Bank, FSB, 153 AD2d 912, 914 [2d Dept
1989]). The PLC underscores that “it is inconceivable that records of an abuser’s ‘prior bad acts’
and ‘subsequent bad acts’ would not be useful in the context of...negligent retention, negligent
hiring, or negligent supervision claims.” Where, as here, the concern at issue is one of
discoverability, rather than admissibility, the PLC contends that plaintiffs should be entitled to the
disclosure of the records deemed discoverable by this court in its Confidentiality Order.

Even so, the DLC retorts by emphasizing that discovery of “bad acts” should be specifically
defined by this court, and should encompass only prior incidents of child sexual abuse rather than
broadly defined prior “misconduct” that may be wholly irrelevant to the claims at issue in a
particular lawsuit. Moreover, defendant Diocese of Brooklyn, and other religious entities, conten
that the Confidentiality Order’s requirement of the disclosure of subsequent corrective measures
impinges upon canon law, and the decision-making process of religious groups that may fin
themselves tasked with the responsibility of having to fire one of their ministers.”

Furthermore, certain defendants within the sphere of education seek to shield the
production of records of “bad acts” and “corrective measures” by invoking the Family Educational
Rights and Privacy Act of 1974 (“FERPA,” or the “Buckley Amendment”), a federal statute which
protects student “education records” from disclosure without their knowledge and/or consent.

In response, the PLC highlights that the Appellate Division, Second Department, has
expressly held that disciplinary records, including a perpetrator’s other instances of “violent an
assaultive behavior,” are relevant and thus discoverable as to whether an educational institution
failed to adequately supervise that perpetrator (see, e.g., Graham v. West Babylon Union Free Sch.
Dist., 262 AD2d 605, 606 [2d Dept 1999] [“records of any past instances of violent and assaultive
behavior on the part of the defendant Marc Maggio clearly would be relevant to the plaintiffs
claim that the defendant West Babylon Union Free School District failed to adequately supervise
Maggio”]).

The PLC also posits that the Appellate Division, Second Department, has elaborated that
complaints or records of prior incidents are not even considered “education records” that warrant
protection under FERPA (Culbert v. City of New York, 254 AD2d 385, 387 [2d Dept 1998]). To

2 Defendant Diocese of Brooklyn elaborated on their arguments concerning the nuanced church-state issues
of First Amendment jurisprudence at oral argument on December 16, 2020 through arguments proffered by
Mark E. Chopko, Esq.

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be sure, courts have interpreted FERPA’s definition of “education records” (i.e., “information
directly related to a student”) to include only “records relating to an individual student’s
performance,” and not records compiled to “maintain the physical security and safety of the agency
or institution” (see Culbert, 254 AD2d at 387). As such, plaintiffs maintain that FERPA does no
apply to the disclosure of reported complaints of abuse within an educational setting.

Even assuming that FERPA does apply, the PLC argues that disclosure of educational
records is still warranted where a court has expressly ordered the production of such records (see
e.g., Staten v. City of New York, 90 AD3d 893, 895 [2d Dept 2011]). Where privacy concems 0
students are weighed against the requesting parties’ need for information, the PLC contends that
the requesting parties’ need for information should prevail, without question, since the information
requested is relevant to the issue of an institution or employer’s knowledge of an abuser’s
propensity for sexual misconduct — a necessary element of negligent retention, hiring, an
supervision claims.

Beyond the observations above, City defendants contend that the necessity to disclose prior
and subsequent incidents of alleged sexual abuse would necessarily require them to violate Section
50-b of the Civil Rights Law, which protects the identities of victims of sex crimes, thereby placing
the City defendants at risk for additional civil liability. Specifically, under Section 50-b, “the
identity of any victim of a sex offense” shall be confidential, including that no public officers or
employees shall disclose any document “which tends to identify such a victim” unless an exception
applies (Civil Rights Law §50-b[1]). City defendants argue that this court’s Confidentiality Order
defies the mandates of Section 50-b, and imposes upon them a disclosure requirement at odds with
existing law.

In opposition, the PLC argues that City defendants’ generalized reference to Section 50-b
is overbroad as many of the requested documents plaintiffs are seeking do not actually identify a
victim of a sex crime, and therefore fall outside the ambit of the statute. In addition, to the extent
that any requested documents do, in fact, identify a sex crime victim, the PLC avers that plaintiffs
may still be entitled to disclosure under Section 50-b(2)(b), upon a showing of good cause for
discovery and upon notice to the identified victim and public officer charged with prosecuting the
offense.

City defendants and foster care defendants also cite a variety of disparate, mutually-
exclusive laws and court rules that address the protection of certain records, such as foster records.
However, in opposition the PLC emphasizes that such laws must yield to court orders requiring
the disclosure of such records. Where, as here, the court has provided that a category of records,
including foster care records, should be disclosed, the PLC argues that defendants must comply
with the court’s directives or raise a particularized objection.

Finally, defendant Rockefeller University, an institution that houses a large volume of
medical records, argues that requiring it to disclose prior bad acts and subsequent corrective
measures would violate the Health Insurance Portability and Accountability Act (“HIPAA”), the
New Y ork State Mental Hygiene Law, or any other medical privileges by requiring the production
of protected health information. In opposition, the PLC argues that the Confidentiality Order
protects the privacy and other interests of third parties by requiring each defendant to redact the

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names of likely abuse survivors who have not filed a lawsuit of their own and who are not
represented by counsel. Moreover, the PLC contends that where privileged health information is
found to be “material and necessary,” it may be disclosed if “circumstances warrant overcoming
the privilege” (Cole v. Panos (128 AD 3d 880 [2d Dept 2015]). In the case of defendant Rockefeller
University, the PLC also underscores the fact that most of the information sought by a plaintiff
may not be health information at all, such as complaints or concems that a health care provider
was sexually abusing patients. In the PLC’s view, such complaints or concerns may not be health
information in the first instance because they are not about the person’s health care, were not made
for their care or treatment, and were not intended to be confidential or to remain confidential.

Il. Sections II(1), I1I(1)(a), and IV (1)(a)

Next, defendants argue that Sections II(1) and IV(1)(a) of the Confidentiality Order
improperly entitle a plaintiff in one CVA action to confidential discovery produced in another
CVA action merely because they are suing the same party regardless of whether different alleged
abusers, locations, and years of alleged abuse are involved. Since the CVA actions at issue are
usually not consolidated class actions or coordinated mass torts, defendants aver that the sharing
of wholly irrelevant, immaterial, and unnecessary records among disparate and diverse CVA
actions confuses the record by becoming the subject of needless deposition testimony and
impertinent expert opinion. Accordingly, the DLC asks for this court to vacate Sections II(1) and
IV(1)(a) to prevent the sharing of discovery beyond the litigation in which it is exchanged.

n addition, the DLC submits that Section III(1)(a) of the Confidentiality Order should
include information of a personal nature as being encompassed within the meaning of
“Confidential Information.” The DLC contends that the absence of information of a personal
nature, which would cover the likes of occupational and educational records, when defining
“Confidential Information” opens the door for the disclosure of a deluge of categories of
information in several CVA lawsuits from disparate parties and non-parties. To protect against
that, defendants submit that Section III(1)(a) should be modified to include information of a
personal nature so that categories of information such as occupational and educational records are
not automatically subject to disclosure while only the most sensitive information, for which a
confidential designation is appropriate, is protected from disclosure.

n opposition, the PLC contends that “[w]here it is widely known these horrific acts were
committed by serial abusers and systematically concealed by these institutions, the substantial
overlap of common records and testimony calls out for parties to share information in specified
instances, thereby avoiding a tremendous waste of time and resources.” To be sure, the PLC
contends that information sharing “would level the information disparity between victims and
these large institutions.” The PLC highlights that in Section 10 of the CVA, the legislature
specifically directed