An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

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An individualseeking certain records disclosed by a party in another litigation must show that suchrecords are “in controversy” in his or her action

A teacher [Teacher] at a State correctional facility alleged that she had beensubjected to unlawful discrimination based upon sex, age and disability and then subjected toretaliation for complaining about such alleged discrimination by hersupervisor.
Supreme Court denied Teacher’s motion seeking the productionof her supervisor’s medical records, which decision was sustained by theAppellate Division.
The Appellate Division explained that “[e]ven assuming,arguendo, that [the supervisor] waived the physician-patient privilege withrespect to those records by disclosing them in an action commenced by [her] infederal court, we conclude that [Teacher] failed to meet her initial burden ofmaking an evidentiary showing that [the supervisor’s] medical condition ‘incontroversy’ in this action,” citing CPLR §3121[a].
The Appellate Division commented that “[t]he fact that [thesupervisor] affirmatively placed her medical condition in controversy in therelated action she commenced in federal court does not relieve [Teacher] of herinitial burden herein.” 
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00853.htm