Supreme Court, New York County, May 1, 2020

Marsh Law Firm PLLC (Jennifer Freeman, James R. Marsh and Robert Y. Lewis of counsel) and Pfau Cochran Vertitis Amala PLLC (Michael T. Pfau and Jason Amala of counsel) for movants.

Cyrus R. Vance, Jr., District Attorney (Patricia Bailey of counsel), for New York County District Attorney's Office.

The movants, Charles Apotheker and Gail S. Coleman, along with hundreds of others, were former patients of Dr. Reginald MacGregor Archibald while he practiced medicine under the auspices of Rockefeller University and its hospital. Dr. Archibald was a pediatric endocrinologist who practiced at Rockefeller from 1940-1946 and again in 1948-1982. He studied childhood growth and maturity and conducted related studies including those on sexual maturity. In 2019, Rockefeller University retained the law firm of Debevoise and Plimpton LLP, which issued a report finding that although some intrusive and embarrassing procedures were necessary to his work, other parts of the doctor's behavior were not medically necessary and constituted pervasive sexual misconduct and abuse toward his child patients. Dr. Archibald passed away in 2007.

Movants and hundreds of Dr. Archibald's other patients plan to file a civil lawsuit seeking to recover damages for the abuse they suffered at the doctor's hand. The Child Victims Act (L 2019, ch 11) significantly revived the statute of limitations for bringing such actions and permitted victims to bring their actions within a one year window after the effective date of the law's enactment. (The law took effect on Feb. 14, 2019, but the{**68 Misc 3d at 314} effective date for the commencement of civil litigation was not until Aug. 14, 2019. The window to file such lawsuits is expected to close on Aug. 13, 2020, unless extended due to the existing COVID-19 pandemic.) The movants [*2]are now facing that filing deadline.

As indicated in the report, in late 1960, Dr. Archibald was the subject of a New York County grand jury investigation. The parties now know that the charges involved crimes against children under the then-existing Penal Code § 483. At that time and as part of their investigation, the New York County District Attorney's Office (DANY) subpoenaed from Rockefeller the records of two of Dr. Archibald's child patients. The People presented the case to the grand jury, which voted not to indict the doctor. As a result, the grand jury minutes and related documents were sealed. The movants now seek an order for limited unsealing of the grand jury file to determine whether and to what extent Rockefeller was on notice of Dr. Archibald's behavior and whether it acted reasonably in light of what it knew or should have known. They seek a transcript of the presentation, evidence presented and copies of other related, sealed documents.

The People join in the motion to unseal with the caveats that the complainants' names be withheld and that any information unsealed be for attorneys' eyes only and returned to DANY upon conclusion of the civil matters. In addition, any material related to notice of the doctor's behavior may not be publicly disseminated until and unless this court orders public release of that material.

The instant motion is, to this court's knowledge, at least the second of such motions to unseal the grand jury minutes related to the criminal investigation against Dr. Archibald. This court denied the former requests and likewise denies this one.

This court cannot pretend to imagine the depth of the child victims' suffering and by no means seeks to justify or minimize the actions of Dr. Archibald. This court is, however, constrained to follow the law and maintain the secrecy of the grand jury proceedings for the reasons explained herein.

The grand jury file at issue remains sealed pursuant to CPL 190.25 (4) which mandates that grand jury proceedings remain secret unless ordered disclosed by a court. Furthermore, CPL 160.50 (3) (h) also mandates the sealing of records of those against whom a criminal proceeding was favorably disposed.{**68 Misc 3d at 315}

Grand jury secrecy has long been an integral part of our criminal justice procedure. The reasons to maintain secrecy include: preventing flight of the accused; protecting the grand jury from interference; preventing against suborned or perjured testimony; protecting the innocent from unfounded accusations should the grand jury not indict; and assuring witness protection in order to promote the free disclosure of information. (People v Di Napoli, 27 NY2d 229, 235 [1970].)

Courts have held, however, that secrecy is not absolute and that disclosure lies within the discretion of the trial court. (Matter of District Attorney of Suffolk County, 58 NY2d 436, 444 [1983].) The standard to be utilized in making such a determination is twofold. First, the party seeking disclosure must provide a compelling and particularized need for the materials. Second, the court must conduct a balancing test between the need for disclosure and that in favor of secrecy. (Id.) "[W]ithout the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance." (Id.)

Addressing the statutes in numerical order, section 160.50 (1) permits a matter determined in favor of the accused to avoid being sealed should the People or the court serve notice upon the person that the interests of justice weigh against [*3]sealing. There is no evidence that anyone who may wish to preserve Dr. Archibald's interests has been served with the instant motions to unseal the records related to his terminated case. Since the grand jury voted not to indict the doctor, he is still cloaked with the presumption of innocence. Although the doctor passed away many years ago, his estate remains. There may be family members who wish to challenge the instant motions and be heard on his behalf. As the court must consider protecting an accused against unfounded accusations, the one threatened with stigmatization should be afforded an opportunity to enforce the rule of confidentiality. (Id. at 442-443; see also Matter of New York Times Co. v District Attorney of Kings County, 179 AD3d 115 [2d Dept 2019].) The doctor, through his estate, has not been afforded that opportunity.

With respect to CPL 190.25, as the movants point out, they must demonstrate a compelling and particularized need for the materials they seek. Since Dr. Archibald is now deceased, many of the reasons to maintain sealing have been obviated. However, one important factor remains—the need to encourage the free disclosure of information by witnesses summoned to{**68 Misc 3d at 316} testify before the grand jury. This is especially true here, where, presumably, the witnesses were child victims who testified about sexual abuse. These are easily the most vulnerable victims who warrant the utmost protection. Although the People request that the names of the witnesses be withheld, it is this very information the movants require. Without the names of the witnesses, the movants cannot ascertain if/when and to whom they complained about Dr. Archibald's behavior—the very crux of their application. By providing their names, the witnesses will undoubtedly be contacted and forced to relive the horrible circumstances they endured so many years ago. This flies in the face of the need for secrecy to encourage open and honest testimony. The movants' offer for a protective order withholding the names of grand jurors or District Attorney personnel does not make this application any more palatable.

Notably, the report (at 13) indicates that despite the hundreds of former patients interviewed, none of them were aware of the grand jury proceeding. Hence, the grand jury complainants have either not been contacted, are deceased, or do not wish to be contacted. In addition, the grand jury complainants have not waived any physician/patient privilege. Their records subpoenaed by the District Attorney's Office in the 1960s must also remain sealed.

In any event, the report is very comprehensive and provides much of the information sought by the movants. The report indicates that although now deceased, the hospital president was on notice in late 1960 or January 1961 of the grand jury proceeding against Dr. Archibald. The report further indicates that the physician-in-charge, although elderly and of vague memory, admitted that during his tenure at the hospital from 1960-1974, he received numerous complaints about Dr. Archibald's practices and that he found those practices to be questionable. (Report at 13.) It is important to note that grand jury minutes will not be unsealed to refresh a witness' recollection. (Matter of New York City Civilian Complaint Review Bd. v Office of the Dist. Attorney for the County of Richmond, 63 Misc 3d 530 [Sup Ct, Richmond County 2019].)

In addition, the report (at 18) indicates that the hospital contacted as many former Archibald patients as it could identify and locate. It received responses from over 900 patients and/or their representatives. Hence, there are hundreds of people the movants can contact to obtain the information they seek without the need to unseal the grand jury file.{**68 Misc 3d at 317}

The report also outlines what remedial steps were taken by Rockefeller and when those steps were implemented. (Report at 17, 23-25.) Through its own investigation, Rockefeller admitted what it knew about the grand jury investigation, when it knew about it, and what [*4]actions it took in response.

Significantly, the movants have several other avenues available to pursue the information they seek. For example, there remains the civil discovery process, depositions, and public records searches, all to be performed without violating the privacy rights afforded the grand jury complainants and Dr. Archibald. (See Williams v City of Rochester, 151 AD3d 1698 [4th Dept 2017] [no compelling need if information could be obtained via discovery].)

Movants speculate that the grand jury file will provide the information they seek regarding notice and remedial action taken by Rockefeller. These issues, however, are not within the scope of a grand jury presentation. The purpose of a grand jury proceeding is to determine whether reasonable cause to believe a crime has been committed exists and that the accused is the person who committed that crime. It is not the function of a grand jury to determine notice and remedial actions taken. Even assuming, arguendo, the grand jury complainants made a "prompt outcry" to the hospital, it is merely an assumption that such information would be included in the grand jury file. Such an assumption is based upon nothing other than speculation. Mere speculation and conclusory statements about what a grand jury file will contain do not warrant unsealing. (See Matter of Perryman v Gennaro, 147 AD3d 852 [2d Dept 2017].)

To the extent this motion may be considered a motion for pre-action discovery, the application must fail. CPLR 3102 provides for pre-action discovery to aid in bringing an action or to preserve information. It is not a mechanism to determine whether a plaintiff has a viable cause of action worth pursuing. (Corcoran v Rockefeller Univ., 2019 NY Slip Op 31734[U] [Sup Ct, NY County, June 21, 2019].) The movants here have the information needed to frame their complaint, the defendants are identifiable, and the information is preserved in the form of the report and the materials used to prepare it. Pre-action discovery is, therefore, not available to these movants.

Finally, this court agrees that the prevention, punishment and remediation of child sex abuse is paramount. However,

"[a] party seeking disclosure will not satisfy the compelling and particularized need threshold{**68 Misc 3d at 318} simply by asserting, or even showing, that a public interest is involved. The party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding 'to advance the actions or measures taken, or proposed (e.g., legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served.' '[I]f the supposed societal benefit of maximizing the public's awareness could by itself trump all other considerations,' there would not exist a 'legal presumption against disclosure of grand jury evidence, let alone a rule providing that such presumption may be overcome only by a showing of a particularized and compelling need for disclosure.' " (Matter of James v Donovan, 130 AD3d 1032, 1037 [2d Dept 2015] [citations omitted].)

The movants have failed to demonstrate how unsealing the grand jury file in a 1961 case where the grand jury declined to indict would further those goals. This is especially true here where the accused is deceased, the abuse ended, and the hospital has implemented remedial action. The movants' general argument that disclosure of the file will help remedy child sex abuse is unpersuasive.

Because the movants have failed to provide this court with a compelling and particularized need to unseal the grand jury file in this matter, this court need not engage in a [*5]balancing test. The movants' motion is denied in its entirety.