The following papers numbered 1-4 were read and considered by the Court on the State’s motion brought pursuant to CPLR §3103(a) for a protective order vacating the interrogatories submitted by claimant’s counsel: Notice of Motion, Attorney’s Supporting Affirmation and Exhibits, Memorandum of Law 1 Attorney’s Affirmation in Opposition and Exhibits 2 Sur-Reply 3 Letter brief dated March 16, 2021 4 DECISION AND ORDER On August 12, 2019, 21 pages of interrogatories, including approximately 10 pages of definitions and instructions, was served upon the State on behalf of claimant (State’s Ex. A). On October 2, 2019, the State objected to the interrogatories “in their entirety as to form” (State’s Ex. B). The State’s objection was based upon the ground that “most of the questions are compound questions (with multiple layers) and quite confusing” (id.). On January 13, 2020, counsel for the parties appeared in court for a compliance conference. After hearing the outstanding issues regarding the interrogatories, the parties were directed by the Court to proceed to a conference room and to engage in a meaningful attempt to resolve the issues. The parties spent several hours engaged in the painstaking process of parsing through the voluminous and complex interrogatories in an attempt to redraft the interrogatories into a concise and proper form to effectively elicit the material and necessary information to prosecute the claim (State’s Ex. E). When the parties had exhausted their efforts, the Court met with the parties in the conference room to further facilitate a resolution of the remaining issues. The Court went over the interrogatories with the parties in detail and then directed the parties to the courtroom. The Court went on the record and, among other things, directed claimant to serve a second set of interrogatories by January 22, 2020 and directed the State to respond to the second set of interrogatories within 30 days of their receipt. Thereafter, the Court issued an order to this effect (State’s Ex. F). The State continued to make a concerted effort to work with claimant toward a resolution of the issues set forth on the record (State’s Ex. G). Claimant, however, submitted a second set of interrogatories, dated January 22, 2020, which is essentially the same as the first set of interrogatories (State’s Ex. H). The emails and telephone calls addressing the second set of interrogatories continued between the parties until February 12, 2020 (State’s Exs. I-P). Nonetheless, the issues remained unresolved. Accordingly, the State brings the instant motion pursuant to CPLR §3103(a) for a protective order vacating claimant’s first and second set of interrogatories. CPLR §3103(a) Prevention of abuse, provides: “The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Claimant opposes the State’s motion for a protective order arguing, inter alia, that the motion is premature. In that regard, claimant makes two arguments. First, claimant argues that the Court has not ruled upon the State’s objections raised to interrogatories 23 and 27. Upon review of the papers before the Court and due consideration of claimant’s argument, the Court directed the State to provide a supplement to its motion papers specifically addressing the issues raised by claimant in opposition to the States’s motion, pertaining to interrogatories 23 and 27. In response to the Court’s direction, the State submitted a letter brief dated March 16, 2021. In its letter brief, the State maintains its position that claimant’s first and second set of interrogatories should be stricken in their entirety and specifically addresses its objections to interrogatories 23 and 27. As to interrogatory 23, the State indicates that its objection based upon Civil Rights Law §50-a is now “moot” because “Civil Rights Law §50-a would not prevent the disclosure of any investigation/disciplinary personnel files (if any) of State employees at the Department of Health” (Letter Brief dated March 16, 2021). As to interrogatory 27, the State maintains it too was “rendered moot” as the State provided claimant with 247 pages of medical records, redacted by the State, on February 11, 2020, pertinent to said interrogatory (id.). The Court has reviewed the State’s letter brief, wherein the State maintains its position that claimant’s first and second set of interrogatories should be stricken, while also conceding that the State’s specific objections to interrogatories 23 and 27 have been rendered moot. Accordingly, the Court finds that the State’s specific objections to interrogatories 23 and 27 are no longer in issue. Therefore, claimant’s argument, that the State’s motion is premature because the Court has not ruled upon the State’s specific objections to interrogatories 23 and 27, is without merit. Thus, the Court will address the State’s motion for a protective order as to the remaining issues with claimant’s first and second set of interrogatories, infra. Second, claimant argues that the State’s motion for a protective order is premature based upon the terms of Court of Claims Rule 22 NYCRR 206.8 (b), which provides that “[n]o motion relating to disclosure shall be placed on the calendar without counsel for the respective parties first conferring with the assigned judge.” The Court finds that claimant’s argument in this regard fails to acknowledge the direct efforts made by the Court in meeting with the parties to resolve their issues with the first set of interrogatories before proceeding on the record and ordering claimant to serve a second set of interrogatories and ordering the State to respond thereto. The parties’ aforementioned meeting with the Court expressly satisfies the requirement of “first conferring with the assigned judge” and is consistent with the spirit and intent of 22 NYCRR 206.8(b). Accordingly, the Court finds that claimant’s second argument, advanced to support claimant’s position that the State’s motion is premature, is without merit and that the State’s motion for a protective order is not premature. Accordingly, the Court will address the merits of the State’s motion for a protective order striking claimant’s first and second set of interrogatories. As was quoted by the State: “[t]he responsibility of an attorney who serves interrogatories is to make a bona fide effort to conform to the well settled rules and not to attempt to shift the burden by serving interrogatories that are unduly broad, patently oppressive and inappropriate. In such circumstances the court will not undertake the responsibility of pruning the interrogatories” (Vancek v. International Dynetics Corp., 78 AD2d 842, 843 [1st Dept 1980). Despite the Herculean efforts made in this matter to resolve the voluminous, overly broad and complex first set of interrogatories, the second set of interrogatories is essentially the same as the first set and the issues with the interrogatories remain unresolved. In Blank v. Schafrann (180 AD2d 886, 887 [3d Dept 1992]), 25 pages of interrogatories were submitted, including five pages of definitions and instructions. The Third Department found that the definitions and instructions increased the scope and burden of answering the interrogatories “exponentially” and that the “prolix nature [of the interrogatories]” verges on harassment. The Court further found that the interrogatories were “ patently burdensome” (id.). The Third Department held that it was proper to strike the interrogatories, stating that “[c]ourts should not prune palpably improper requests, but rather strike the offensive document in its entirety” (id.). Similarly, other Courts have held that the proper remedy is for the Court to vacate the interrogatories as a whole instead of pruning or correcting the improper interrogatories (see Handy v. Geften Realty, 129 AD2d 556 [2d Dept 1987]); Senior v. Manufacturers Hanover Trust Co., 110 AD2d 833 [2d Dept 1985]; Brooklyn Union Gas Co. v. Hartford Acc. & Indem. Co., 101 AD2d 875 [2d Dept 1984]). So too here, the proper remedy is to strike claimant’s first and second set of interrogatories. Accordingly, the State’s motion for a protective order striking claimant’s first and second set of interrogatories is GRANTED. Dated: March 30, 2021
