CVA Litigation Update: Defendants File a Consolidated Challenge to Confidentiality Order Entered by the Court

An important, recent development relating to CVA litigation in New York City will have a significant impact on how these cases are prosecuted. On September 18, 2020, Judge George J. Silver—who oversees all pretrial matters relating to CVA cases in the five boroughs—entered a confidentiality order (the “Confidentiality Order”) applicable to the production of documents in all CVA cases, but there is a dispute regarding the content of the Order. The CVA Steering Committee, comprised of a Plaintiff Liaison Committee (PLC) and a Defense Liaison Committee (DLC), had been negotiating the contours of the Confidentiality Order for several months but were not able to agree on several key issues (discussed further below). These issues were addressed with Judge Silver, who largely agreed with the PLC. Most significantly, the Confidentiality Order, as entered, will allow for plaintiffs’ lawyers to share confidential and other information across cases simply because the cases share either a common defendant or a common alleged abuser. 

The DLC opposed the inclusion of these provisions in the Confidentiality Order, and addressed these concerns with the Judge Silver, advising him of its intention to appeal the Order if the Court would not vacate or amend it in material respects. As a result, and at the request of the DLC, the Court has now created master index number for all CVA cases as a mechanism for the Defendants to raise a consolidated challenge to the Confidentiality Order. If the Court had chosen not to allow a master index number, each Defendant opposing the provisions of the Confidentiality Order would have had to independently move for relief to the extent it objected to the Order.

Defendants’ position is that the adoption by the Court of the plaintiffs’ proposal violates not only the CPLR, but the due process rights of all defendants, the United States Constitution and the New York State Constitution, and certain state and federal laws. The significant issues with the Confidentiality Order relate to the following:

1. Sharing of Confidential Discovery Material Across Cases 

The Confidentiality Order allows the plaintiffs’ lawyers to share confidential and other information disclosed by defendants across other cases without any notice to defendants. This sharing is permitted simply because there is either a common defendant, or a common abuser, which, the Court believes, somehow ties these cases together. It is entirely improper, and contrary to established principles and the CPLR, to allow plaintiffs to share this information. More fundamentally, through this sharing provision, the plaintiffs are attempting to subsequently create a presumption of liability by an institution based on a historical existence of child abuse by other individuals employed by the same entity under an irrelevant and unsupported theory of “general awareness,” simply because an institution may have had awareness of other predators, perhaps from decades earlier. In addition, there is no CPLR provision which authorizes creating discovery data banks to be shared by parties outside of one case to help prove the allegations in another.

2. Improper Burden on Challenges to Confidential Designation 

The Confidentiality Order places the burden on the “Producing Party” to seek relief from the court to enforce its designation of any documents as confidential in the event that the receiving party objects to such designation.  This reverses the burden in New York where generally the receiving party would be required to make a motion to remove a challenged confidential designation.   

3. Requirement to Redact Identities of Abuse Survivors  

Producing parties are obligated under the Confidentiality Order to identify and redact the names of any plaintiff that filed a CVA action under a pseudonym and also provide a list of their names and the attorneys who represent them. There are also requirements to identify the names of any person who may be a survivor of child sexual abuse.  The DLC questions how this can be accomplished, and why it should fall to Defendants to assist plaintiffs with populating a database to identify victims and perhaps germinate future lawsuits, secured as part of discovery in a case. There is no basis under New York law, or the CPLR to impose this on Defendants.

4. Prior and Subsequent Bad Acts  

The Confidentiality Order also requires defendants to produce records regarding prior and/or subsequent “bad acts, not limited to consequent accusations of sexual abuse, by an alleged sexual abuse perpetrator.”  This is entirely overbroad and would require a defendant to produce information where, for example, an accused individual was later disciplined for being late to work or drinking on the job. 

When Judge Silver created the master index number, he also set forth a briefing schedule for those representative cases that would be used to challenge the propriety of the Confidentiality Order on behalf of all the CVA defendants. The DLC is proceeding with the challenge by Order to Show Cause, and the memoranda they filed last week in support of their challenge seek to vacate the offending portions of the Confidentiality Order and also request that a protective order be issued to stay all discovery while the dispute is sub judice.

It will be interesting to see how the PLC responds to the DLC’s arguments, and equally interesting to see how the Court addresses them.

Karen Bitar is a partner in the Litigation Department of Seyfarth's New York office. She has been appointed by the Court to be a member of the New York City CVA Steering Committee. She is also national Co-Chair of the firm’s White Collar, Internal Investigations and False Claims Team. A former prosecutor, Karen routinely advises and defends institutions facing sexual abuse claims. She is also a member of Seyfarth’s National Trial Team. Gershon Akerman is an attorney in the New York Litigation Department. If you have any questions, please contact Karen at kbitar@seyfarth.com or Gershon at gakerman@seyfarth.com.