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By Bill Altreuter

New York does not recognize all that many privileges. Attorney-client; spouse; Physician, dentist, podiatrist, chiropractor and nurse; clergy; psychologist; social worker; Rape crisis counselor. (Library records are confidential, but subject to release pursuant to authorization or subpoena.) CPLR §§ 4502-4510 sets them out. There is a bill pending which would add parent-child to the list. The overall trend in modern jurisprudence is away from privileges, the theory being that full disclosure is the best means to achieving a just result, but New York jurisprudence seems to favor the notion that certain confidences made in good faith ought to be respected so that the relationship between the party and the lawyer/doctor/shaman/shrink is not compromised out of a fear of disclosure to third parties. I can tell my doctor things, the theory goes, because I know my secret is safe with him. (Filthy things, it should go without saying.)

It is surprising how often this does not come up. In personal injury lawsuits the privilege is deemed waived, so your medical/psych records are disclosed. I've bumped into the spousal privilege occasionally, but it is rare, and attorney client is big, but I don't think I've ever seen the others raised.

All of which is further to my ongoing thoughts on Arons v. Jutkowitz, the case that holds that plaintiffs can be compelled to provide authorizations to defense counsel permitting ex parte interviews with the plaintiff's non-party treating physicians. (It seems to come up mostly in med mal cases.) Those who favor this holding seem to do so on the grounds that the privilege has been waived, and that, in any event, just because the doctoris authorized to speak doesn't mean that he is compelled to do so. He can decline the interview. There is a nomenclature issue here: the Court of Appeals talks about "informal discovery", as though interviewing a doctor is the same thing as ex parte interviews of litigants' employers, co-workers, family members, friends, baby sitters, doormen, hair dressers, chauffeurs, or whatever. This is investigation, not discovery, and although these people might have confidential information that a litigant might not want the source to share with an adverse attorney,there is no law prohibiting the attempt to interview these people. Rules of civil procedure do not, and probably should not, cover investigative methods. It is a bit different with doctors, I think, because our expectations about our communications with doctors are different.

Even getting past that, though, I have three problems with the state of the law as it now exists in the post Arons world. Maybe it's really 2.5. First, the post-note of issue thing is a mess. The Note of Issue has become the vermiform appendix of New York practice: useless as a practical matter, and dangerous when inflamed. Perhaps Arons is one more reason to re-think calendar practice; certainly it is an illustration of the sort of mess we get when we start acting as though rules that are inconvenient aren't rules we need to follow.

Second, I think the ex parte aspect of the interviews contemplated is very troubling. It is all very well for the Court of Appeals to call this "informal discovery", but discovery has rules. This decision takes discovery out of the sunlight provided by notice and the rights to object (such as they are), and all of the other picky little rules that are an automatic part of our assumptions about how law is practiced and stuffs it into a dark basement for a going over.

Finally,there is already a mechanism in place for conducting discovery of non-parties-- even doctors. Subpoenas and non-party depositions work fine, do not require judicial involvement, and operate transparently.

I'm already reading about litigation over this. (See, e.g. New York Defendant Demands 76 Private Interviews In Wake Of Arons Decision.)

The danger isn't in Arons-- it is that the plaintiff's bar isn't going to sit still for this, creating the real risk of some bad legislation.

Full post as published by Outside Counsel on December 12, 2007 (boomark / email).