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525 West 45th Street Associates - Ruling 2, November 7, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Article 17 of the New York State
Environmental Conservation Law and Article 12 of the New York State
Navigation Law

- by-

525 West 45 Street Associates, Tokay Realty Corp.,
and Saul Shenker,
Respondents

RULING OF THE ADMINISTRATIVE LAW JUDGE

DEC Case No. R2-20021230-407

Background

By papers dated October 2, 2003, Department Staff, represented by Assistant Region 2 Attorney David S. Rubinton, moved for an order without hearing in this matter involving alleged violations of Article 17 of the New York State Environmental Conservation Law ("ECL") and Article 12 of the New York State Navigation Law ("NL"). The Respondents are charged with various violations related to apartments they are alleged to own or operate at 525 West 45th Street in Manhattan. Staff's papers allege that the Respondents are responsible for two separate petroleum discharges (one on or before September 24, 2002, and the other on or before February 27, 2003) and that the Respondents failed to notify the Department of these discharges in a timely manner. The Respondents are also charged with failing to notify the Department prior to the permanent closure of petroleum storage tanks and failing to register tanks with the Department prior to their installation.

On October 16, 2003, I granted the Respondents' request that they be afforded more time to file a response to Staff's motion for order without hearing. As confirmed in my letter of that date to the parties' counsel, I allowed more time so that the Respondents could first seek and review additional documentation that might be available from the Department.

My letter set a schedule by which the Respondents' counsel would make a written request for additional documents on or before October 22, and Staff counsel would respond by October 29. Staff was directed to indicate in writing if any requested documents were being withheld for any reason and if there were no documents that were responsive to a particular demand.

Respondents' counsel served a timely notice to produce on October 22. By motion dated October 23, Department Staff moved for a protective order pursuant to 6 NYCRR 622.7(c). Respondents' counsel answered the motion in a letter dated October 30. To clarify the parties' respective positions, I scheduled a conference call that was held on November 5.

Mr. Rubinton represented Department Staff, and the Respondents were represented by attorneys Stuart A. Klein and Richard Budd.

Position of Department Staff

In its motion seeking a protective order, Staff counsel claims that in compliance with the current discovery demand and a prior demand that predates the motion for order without hearing, it has provided the Respondents with all documents in its files regarding this matter. According to Staff, no documents have been destroyed or denied due to a claim of privilege. Staff contends that its entire case is in evidence and that its motion for order without hearing can be denied and a hearing convened if there are factual gaps in its presentation or substantive factual disputes that the Respondents can establish. Accordingly, Staff argues that there should be no further delay in the Respondents assembling and submitting an answer to the motion.

Staff characterizes the notice to produce as framing interrogatories in the form of a document request, requesting transcripts of verbal conversations, and requesting generally applicable polices and protocols of the Department. To that extent, Staff says that the notice goes beyond the scope of discovery set forth during a conference call I had with the parties' counsel on October 16. Staff adds that responding in full to the notice to produce would be unduly burdensome and likely to cause undue delay while not leading to the discovery of material or relevant information.

Position of the Respondents

In its response to Department Staff's motion for protective order, counsel for the Respondents requests that the motion be denied and that Staff be ordered to fully comply with the notice to produce and to provide all remaining requested materials. Additionally, the Respondents request that the date now set for their response to the motion for order without hearing - - November 25 - - be pushed back to reflect whatever amount of time has been and will be lost by Staff's failure to fully and immediately comply with the notice to produce.

The Respondents claim that items such as transcripts of verbal conversations and generally applicable policies and protocols of the Department were specifically mentioned and discussed during the October 16 conference call. They say that they cannot possibly evaluate the accuracy and reliability of the evidence offered by Staff without knowing the Department protocols meant to be followed in gathering that evidence. Moreover, they assert, such protocols would clearly be obtainable by means of a request to the Department under the state's Freedom of Information Law (FOIL).

The Respondents claim they are unsure as to which document requests Staff believes should have been framed in the form of interrogatories, but indicate a willingness to resubmit said requests in interrogatory form if Staff will stipulate to a corresponding extension of time for the Respondents to answer the motion for order without hearing.

The Respondents dismiss Staff's claims that full compliance with their notice to produce would unduly delay this matter, countering that Staff has not indicated how it would be prejudiced. The Respondents claim that if anyone is being hurt by delays here, it is them.

Discussion

Department Staff's motion for protective order does not specify the particular provisions of the notice to produce to which it has objections. Therefore, I convened a conference call to ascertain this information and to hear oral arguments on the parties' respective positions.

Paragraphs 18 through 35 of the notice to produce contain an itemization of what the Respondents describe as "documents requested." During the conference call, Department Staff indicated objections to paragraphs 27, 33 and 34.

Paragraph 27

Paragraph 27 requests that Department Staff set forth and produce "any and all statements of any and all witnesses to the incidents and/or events" relating to the Respondents "and/or the charges and/or specifications pertaining to the specific action," as well as "the names and/or addresses of the aforementioned witnesses."

Staff counsel counters that he has provided the Respondents with all documents in the Department's files (including his files and those of the Department investigator, Timothy DeMeo) and takes exception to the request for the names and addresses of witnesses to incidents and events described in its charges, claiming that such a request is in the nature of an interrogatory. An interrogatory is a question drawn up by an attorney and sent to an opposing attorney, who then develops a response on behalf of his or her client. Applying that definition, the written request for witness names and addresses is an interrogatory, as argued by Staff counsel. However, that, by itself, is not a basis for non-disclosure, since the Department's enforcement hearing procedures allow interrogatories with permission of the administrative law judge upon a finding that they are likely to expedite the proceeding. [See 6 NYCRR 622.7(b)(2).]

My letter of October 16 authorized the Respondents' counsel to make a supplemental demand for documents he claimed were necessary to develop a response to Staff's motion for order without hearing. The authorization did not encompass interrogatories, and proper procedure would have been for the Respondents' counsel to request my permission before incorporating interrogatories into what is ostensibly a request for documents. The Respondents are willing to resubmit whatever requests that should have been framed as interrogatories in the first instance. However, that would only engender further delay when the underlying issue - - whether the requested material should be protected from disclosure - - can be addressed now.

The Department's enforcement hearing procedures provide that the scope of discovery must be as broad as that provided under Article 31 of the Civil Practice Law and Rules (CPLR) [6 NYCRR 622.7(a)]. As David D. Siegel explains in his treatise, New York Practice, the case law under the CPLR has confirmed that parties must reveal the names of any persons they know of who witnessed an event at issue. According to Siegel, that does not mean character and or expert witnesses, only those ordinary witnesses who can shed light on what happened. If liability occurred all at once, the witnesses included are not only those who beheld the occurrence, but also those who can reflect on any fact that can help account for it. [See Siegel, New York Practice, Section 349, at page 540 (3d Edition).]

Staff's motion for order without hearing includes an affidavit from Mr. DeMeo, an environmental engineer in the Department's Division of Environmental Remediation, Bureau of Spills Remediation. He states in the affidavit that on September 24, 2002, he received a report from an Amtrak employee, of oil pooling on the ground surface adjacent to the track on 45th Street, between 10th and 11th Avenues in Manhattan. He adds that, after observing petroleum pooling and leaching from the bedrock at that location, he conducted an investigation to determine the source of the discharge, which included walking the neighborhood, interviewing area residents and conducting a search of Department records.

Staff's motion papers do not include affidavits from the Amtrak employee or any of the area residents, which means that Staff is not relying on them to prove its charges. But that does not mean that these individuals do not have relevant information; at the very least, the Amtrak employee does, since he apparently alerted the Department to the first of the two discharges that are referenced in Staff's pleadings.

It is possible that Staff has already provided documents that disclose the identities of all people who, according to its investigation, witnessed the alleged discharges. However, that does not mean that providing a list of these witnesses (along with their addresses, if known) would cause undue delay or be unduly burdensome to the Department. This information should be easy to retrieve from Mr. DeMeo and then to forward to the Respondents' counsel. Also, no privilege has been asserted as to this information; the only objection is to the form in which the request was made.

For all these reasons, Staff's motion for a protective order is denied, and Staff counsel shall provide a list of the names and addresses, to the extent known, for all individuals who provided the Department with factual information bearing on the petroleum discharges which are the subject of this proceeding.

Paragraphs 33 and 34

Paragraphs 33 and 34 present similar demands that can be addressed together. As framed by the Respondents' counsel, they request the production of any and all documents concerning the Department's rules and regulations respecting both:

(a) protocols for inspections and the conduct of inspectors and/or any other
Department personnel regarding the conduct and recording or memorializing of field
inspections; and
(b) the necessity for and conduction (sic) of scientific tests and/or chemical
analyses in connection with the alleged violation.

During the conference call, the Respondents' counsel confirmed that these demands are not in fact for the Department's rules and regulations (which at any rate are public documents that may be easily accessed in the absence of a discovery demand) but for internal Department protocols addressing how field inspections are conducted and how and by whom samples (such as those of discharged petroleum) are collected and processed. Department Staff counsel contended that such protocols probably do exist, but added that he had not searched for them and saw no obligation to do so. Staff counsel also contends in his October 23 submission that requests for generally applicable Department policies and protocols go beyond the scope of discovery set forth during our October 16 conference call, though my letter of October 16, memorializing that call, makes clear that the call resulted only in a schedule for further discovery, there being no agreement about its scope.

Regardless of their relevance to this matter, internal Department protocols such as those described above would appear to be documents that would be subject to release under FOIL as "intra-agency materials" that are "instructions to staff that affect the public" [Public Officers Law Section 87(2)(g)(ii)]. Staff counsel agreed that the documents would be subject to release if they do exist, but said that the proper way of proceeding would be for the Respondents or their counsel to make a FOIL request, the procedures for which are set out in Part 616 of the Department's regulations.

Though the Respondents are willing, if necessary, to resubmit their request under FOIL, I see no reason to delay matters while this is done. That is because the Respondents have made an adequate showing that the protocols, assuming they do exist, would be helpful in terms of their reviewing the accuracy and reliability of the evidence against them, and whether that evidence was gathered in conformance with mandated procedures. If it turns out that the Department does not maintain protocols such as those requested, the Department can merely indicate that in writing, in full response to the demands in paragraphs 33 and 34. Staff counsel contends that answering the demands in these paragraphs would cause undue delay of the proceeding and result in prejudice to the Department. I disagree, since answering the demands would appear to be a rather simple matter.

Objections to Definitions

During the conference call, Staff objected to definitions employed in the notice to produce for the terms "document" and "communications." I see no basis for an objection to these definitions. The definitions, read in the context of the entire notice to produce, do not suggest that, in responding to the notice, the Department is required to generate new documents, but only to produce those documents it has in its possession. The definition of "documents" includes "transcriptions" and "notations of meetings or other communications" such as conversations. But to the extent these conversations have not previously been transcribed, the Department is under no obligation to create transcripts now. On the other hand, the definition of "documents" does include "graphic or aural records or representations of any kind," including tape recordings. If any witness interviews were recorded in any manner, the recordings themselves would be documents encompassed by the demand. Staff counsel's letter of October 23 states that by requesting transcripts of verbal conversations, the notice to produce goes beyond the scope of discovery set forth during the October 16 conference call. Again, there was no agreement during that call on the scope of discovery, only an understanding regarding the schedule under which discovery would proceed.

Ruling

The Department's motion for a protective order is denied in all respects. Department Staff shall respond to the notice to produce consistent with the instructions in the notice and the instruction in my October 16 letter that, if there are no documents that are responsive to a particular demand, Staff counsel shall so indicate in writing. Staff counsel's letter of October 23 indicates that no documents have been destroyed or denied due to a claim of privilege. Staff needs to confirm whether this statement is accurate in relation to the entire notice to produce, and, if necessary, follow the instructions in paragraphs 15 and 16 of the demand for any responsive documents that have been withheld, destroyed or discarded.

Once the Department has complied fully with the notice to produce, it shall inform me of such in writing, at which point I will convene another conference call to address any remaining issues between the parties and set a new date for the submission of the Respondents' answer to Staff's motion for order without hearing.

/s/
Edward Buhrmaster
Administrative Law Judge

Dated: November 7, 2003
Albany, New York

TO: David Rubinton, Esq.
NYS Department of Environmental Conservation
Division of Legal Affairs, Region 2
One Hunter's Point Plaza
47-40 21st Street
Long Island City, New York 11101

Stuart A. Klein, Esq.
11 Penn Plaza, 20th Floor
New York, New York 10001

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