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Advancement in the Law Concerning Discovery in School Assault Case

Our New York City and Westchester personal injury lawyers know that defendants in all cases try to keep Plaintiffs from proving their cases by stalling discovery and attempting to evade their discovery obligations. Our accident attorneys are aggressive in fighting to get the discovery that we need to prove our client’s cases. In a recent student assault cases, our White Plains personal injury lawyers won a major discovery battle, in a student assault case in the Westchester Supreme Court. In this case, our School injury attorneys are asserting that the School was negligent in failing to protect our client from a fellow student, whom they knew to be aggressive. To further our case, our Westchester personal injury lawyers demanded that the School defendants produce the other student’s disciplinary records. The defendants objected and claimed that the records were generally not discoverable and that they were privileged.

To fight these generalized claims that these records were not discoverable, our White Plains personal injury lawyers filed an order to show cause with the Westchester Supreme Court. After reading our attorney’s papers, the Westchester Supreme Court rejected the Defendants’ claim of privilege and ordered that the records be produced. The Court reviewed the assailant’s school and disciplinary records should be produced because given the nature of the allegations in the complaint, the materials which were sought are material to the litigation. Even though the Defendants in these cases often attempt to block discovery, the law is in New York is clear that there shall be full disclosure of all matter material and necessary in the prosecution of an action, regardless of the burden of proof. The New York Court of Appeals has held that the words “material and necessary”, are interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity and the test is one of usefulness and reason. The decision which our school injury lawyers won in the Westchester Supreme Court furthers the line of cases that hold that the purpose of disclosure procedures is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits’ and if there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross -examination, it should be considered ‘evidence material in the prosecution. Evidence is relevant, discoverable and admissible if it has any tendency in reason to prove the existence of any material fact, i.e., if it makes determination of the action more probable than it would be without the evidence.

In granting our motion, the Westchester Supreme Court upheld and reinforced the jurisprudence that has repeatedly recognized that in a negligent supervision case involving a student assault, the assailant’s disciplinary records are both relevant and discoverable. In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, a Plaintiff must prove that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated. In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of a fellow student, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated.

The Westchester Supreme Court held that in general, school disciplinary records are not privileged and are usually discoverable once their relevancy and materiality to the action are established. In a negligent supervision case involving an a student assault, the records of any past instances of violent and assaultive behavior on the part of the assailant are clearly relevant to the plaintiff’s claim that the defendant School District failed to adequately supervise the student assailant. Records of the disciplinary actions and proceedings against students are clearly relevant to establish the defendant school authorities knowledge that incidents, such as those purportedly experienced by plaintiff may reasonably be anticipated. Often because these records contain strong evidence, the defense attorneys try to block the Plaintiff’s ability to get these records, even though the New York Courts have recognized that any prior similar conduct by the alleged assailant is relevant to determine whether the school had actual or constructive knowledge of the danger to the Plaintiff. In general, the school’s liability can be established where the defendant had “prior knowledge or notice of the perpetrator’s propensity or likelihood to engage in certain conduct, so that the individual’s acts could be anticipated or were foreseeable. Jurisprudence has held that in a negligent supervision case, five years of school records is reasonably calculated to lead to discoverable information which would assist plaintiffs in demonstrating an essential element of their case.

In our case, the Westchester Supreme Court rejected the Defendants claim that the assailant’s records are privileged based upon the Family Educational and Privacy Rights Act because the the so-called “Buckley Amendment”, the Family Educational and Privacy Rights Act (20 USC §1232g) was intended to protect records relating to an individual student’s performance, and does not apply to records compiled in an effort to maintain the physical security and safety of an institution. However, Disciplinary records are not covered by the Buckley amendment and are not otherwise protected by any privilege.

 
The Law Offices of Michael H. Joseph