April 15, 2021
New York’s Child Victims Act (“CVA”) is a historic and wide-reaching law that has revived thousands of previously time-barred civil claims arising from the alleged sexual abuse of minors. Given the volume of the litigation that this enactment has allowed, New York’s court systems have attempted to centralize the management of these cases. All CVA litigation filed in New York City is being managed by Judge George J. Silver.
In New York City, defense liaison counsel and plaintiffs’ liaison counsel were appointed to help manage the litigation. On June 18, 2020, the court entered Case Management Order 2, which contained a “Standard Automatic Disclosures Directed at Defendants,” requiring broad categories of documents and things that need to be produced by CVA defendants in every case. In response, the respective steering committees submitted a proposed confidentiality order, and on September 18, 2020, Judge Silver issued a Confidentiality Order. The Defense Liaison Committee filed a motion promptly to modify four specific sections of that Order, arguing that it violated various statutory, common law, and constitutional rights afforded to the defendants.
The defense liaison committee objected principally to Section VIII(1) of the CMO, which required defendants to disclose “bad acts” by the alleged sexual abuse perpetrator, and subsequent corrective measures taken by the institutional defendant. The DLC contended that this disclosure was not permitted under New York State law, and that disclosure would also be an improper invasion of the defendants’ First Amendment protections. Moreover, the term “bad acts” is extremely broad and non-specific.
The DLC also sought to strike provisions from the order which would allow plaintiffs in one CVA action to access confidential discovery produced in another action, merely because they were suing the same defendant – and regardless of whether different alleged abuses, locations, and years of abuse were involved.
Lastly, the DLC sought to remove the requirement that defendants have the initial burden to justify confidentiality and privilege designations during discovery, and to remove the direction that defendants disclose the identities of non-parties contained in produced records.
In response to motion practice, on April 6, 2021 Judge Silver entered an Order amending the previous Confidentiality Order applicable to CVA litigation. First, the Order defined “prior bad acts” as “prior bad acts including previous accusations of sexual abuse, against an alleged sexual abuse perpetrator; are discoverable, and will be disclosed upon request.” Judge Silver further removed the requirement of the order that defendants disclose subsequent corrective measures, based in large part on U.S. Supreme Court precedent determining that church authorities had the freedom to organize and govern themselves according to their own law and policy, including the right to select and discipline ministers, free from state interference. Judge Silver also struck the portion of the Confidentiality Order – Section V – requiring defendants to include names and contact information of non-parties included or referenced in document productions, finding the requirement impractical and overly burdensome. The remaining challenges to the Confidentiality Order were rejected by Judge Silver.
McGivney, Kluger, Clark & Intoccia, P.C. is counsel to numerous entities involved in CVA litigation in New York City, and will continue to monitor and update our clients on developments in this litigation. To contact our New York City CVA team, please contact Mike Rawlinson, Ken Ross, and Kevin Torge.