University Request for Health, Financial and Employment Records of Plaintiffs in LGBTQ Suit Rejected; Assemblymen Condemn Request

A recent request by Yeshiva University for access to mental and physical health, financial and employment records “quantifying claimed injuries” from the four plaintiffs in Yeshiva University v. the YU Pride Alliance, which were rejected by the Pride Alliance’s attorneys last month, drew condemnation from five New York State Assembly members Monday.

The requests, denied on Feb. 2 by Emery Celli Brinckerhoff Abady Ward & Maazel LLP, the firm that represents the YU Pride Alliance, were made on Jan. 13 by YU’s legal counsel Eric Baxter, senior counsel of the Becket Fund. 

Baxter told The Commentator the requests were necessary to assess damages alleged by the four plaintiffs in the case, three who have graduated YU and one who is still attending.

“Beyond asking for club recognition,” said Baxter, “Plaintiffs state they have suffered ‘grave dignitary, emotional, and psychological harms’ that have impacted their ‘health and well-being.’ They state they have suffered ‘feelings of isolation, rejection, and fear.’ They state this has ‘exacerbated certain existing mental health challenges’ and caused severe ‘burnout, increased anxiety, exhaustion, and disrupted sleep.’ They want Yeshiva to compensate them for these asserted injuries.

“In any case where plaintiffs make claims for financial compensation, they must prove how much compensation they deserve, “ continued Baxter. “A defendant is entitled to know the scope of the injuries … Where (as here) the claim is that ‘existing’ injuries were ‘exacerbated,’ the defendant has the right to understand the pre-existing injury to know how bad the exacerbation is.”

Attorneys at Emery Celli Brinckerhoff Abady Ward & Maazel LLP, the firm that is representing the Alliance, told The Commentator that they rejected the requests, made during the discovery phase of the trial, since, according to the attorneys, they were not relevant. According to the attorneys, the plaintiffs are only seeking basic damages for discrimination, which the law does not require evidence for, and that releasing the information could harm the plaintiffs.

“The law recognizes that the experience of discrimination harms people; it’s upsetting, humiliating, and distressing to be treated differently and worse because of who you are,” said Katie Rosenfeld, the lead attorney for the Pride Alliance and a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP.  “To seek basic damages for discrimination, Plaintiffs are not required to produce mental health records, establish a particular diagnosis or condition, or waive their therapist-patient privileges. Rather, their own testimony is sufficient to establish this type of damages.

“YU should not pursue a scorched-earth litigation strategy against its own students who it claims to care about,” Rosenfeld added.

“How can their tax, employment, and psychiatric records be relevant to the straightforward claims of discrimination in this case?” questioned Max Selver, another attorney at the firm. “The fact that they sent out these discovery requests is normal; it’s the fact that they include such broad and incredibly invasive demands that concern us.”

In response to the university’s request, five New York State Assembly members sent a letter to YU President Ari Berman and the board of trustees, condemning the move, saying that the request for “their Federal and State Tax Returns and unrestricted access to their mental and physical health records including psychology, psychiatric, and social work treatment, employment, and educational records” was intended to “intimidate the LGBTQ members and allies of the University’s undergraduate community.”

“There is no legitimate legal reason for these students to provide such personal documents,” stated the letter. “Not only has the University chosen to discriminate against them, but the goal is clearly to punish the students and their families because of who they are and because they choose to fight for equality.”

The assembly members also wrote that providing these records could be a “safety issue,” because the students may not have “made their sexuality, gender identity, or allyship with the LGBTQ community public out of fear of retaliation.”

Baxter pushed back at the assembly members, saying that their letter “shows a misunderstanding of the facts.”

“Well-meaning politicians are kindly asked to learn the facts before attacking Jewish education,” said Baxter in a press statement. “The Assembly members are being used and misled by those who resort to publicity stunts because they know the lawsuit ultimately will not prevail.”

“The documents Yeshiva requested,” Baxter told The Commentator, “are all relevant to these inquiries and typical in any lawsuit where plaintiffs seek monetary compensation for psychological or emotional injuries.”

Baxter also told The Commentator that “if Plaintiffs are uncomfortable documenting their injuries … they could drop their claim for financial compensation”  or “enter a confidentiality agreement” that would only allow lawyers to see the information, with private information being put under seal and inaccessible to the public. Baxter added that besides offering such an agreement, YU also offered to have the records first reviewed by a judge to ensure that “irrelevant information is not shared.”

“Under these procedures, there is no risk of Plaintiffs’ private information being disclosed to the public,” said Baxter. “But they cannot demand financial compensation and then refuse to provide documents that might support or refute their claims.”

Attorneys representing the Alliance told The Commentator that both of YU’s offers, though standard in lawsuits, would “fail to protect the students’ privacy in this case,” as the records would be available to YU and though made confidential during discovery, could become public during trial.

“YU skirts the real harm here: no LGBTQ YU student should have to share their mental health and psychiatric records with the Defendants in this lawsuit, who are the University, President Berman (and his advisors), and YU’s lawyers the Becket Fund for Religious Liberty,” said the attorneys. “Even if the entire public won’t see the records, everyone who works on this case at YU and all the lawyers would have access to them. Such records may address very sensitive issues and it’s incredibly invasive and disturbing to imagine YU gaining access to this information.

“Would any student at YU want President Berman to see his/her therapy records, medication records, and tax returns? And then have President Berman’s lawyers discuss the student’s most private information at a public trial, based on reading those records?”

The attorneys also questioned why YU was seeking these records “when Plaintiff’s lawyers offered to agree in writing that Plaintiffs aren’t seeking the kind of serious damages that would implicate needing to review private mental health records, and YU refused to stipulate?”

For his part, Baxter said that the Alliance’s lawyers declined to bypass discovery and head directly to court, causing the case to be held up.

“Yeshiva has repeatedly asked the plaintiffs’ lawyer to bypass this discovery phase in the trial court and instead proceed quickly to the New York Court of Appeals to resolve the legal questions,” said Baxter. “Unfortunately, the plaintiffs’ lawyer has refused this offer.” 

Rosenfeld, a partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP, pushed back at Baxter, and said discovery, a process where, per New York State Law, both sides share evidence before going to court to allow each side to build their case, is “not optional.”

"In the Becket Fund for Religious Liberty’s haste to disenfranchise the LGBTQ students at YU, they misstate the basics of legal practice in New York,” Rosenfeld said. “The Appellate Division remitted the case back to the trial court for discovery and trial: discovery is not optional.”

Yeshiva University has continued to seek the records. A letter sent Tuesday from Kaufman Borgeest & Ryan LLP, which also represents the university, to Emery Celli Brinckerhoff Abady Ward & Maazel LLP, continued to request the documents, decrying “blatant misrepresentations” made to the media, and the firm’s “insisting on stipulating to limit their allegations to mere ‘garden variety’ emotional harm to withhold critical records.”

The letter, entered into the court record Thursday night, also alluded to a tense phone call between both parties on Monday.

YU can file a motion in court to compel the Pride Alliance to turn over these documents. If they do, Judge Lynn Kotler of the New York County Supreme Court, who issued the June ruling ordering YU to recognize the group in June, which YU is currently appealing, will make the final decision.

Yeshiva University’s appeal of Kotler’s June decision directing YU to recognize the group is now at the New York Court of Appeals, one stop before the U.S. Supreme Court, which declined to issue YU a stay in September.

The four plaintiffs Emery Celli Brinckerhoff Abady Ward & Maazel LLP represent are Molly Meisels (SCW ‘20), Doniel Weinreich (YC ‘20), Amitai Miller (YC ‘20), and a fourth student, currently in YU, whose name is listed as anonymous in court documents.

The five assembly members that signed the document are Alex Bores, Deborah Glick, Jessica González-Rojas, Daniel J O’Donnell and Tony Simone. All of them represent districts in the five boroughs.