Bekins Record Storage Co., Inc., Matter of

• Decision Date: 12 June 1984
• Citation: Bekins Record Storage Co., Inc., Matter of, 476 N.Y.S.2d 806, 62 N.Y.2d 324, 465 N.E.2d 345 (N.Y. 1984)
• Parties: , 465 N.E.2d 345 In the Matter of Grand Jury Subpoena Served Upon BEKINS RECORD STORAGE CO., INC., Petitioner A et al., Appellants; Robert M. Morgenthau, as District Attorney of New York County, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 806

476 N.Y.S.2d 806

62 N.Y.2d 324, 465 N.E.2d 345

In the Matter of Grand Jury Subpoena Served Upon BEKINSRECORD STORAGE CO., INC., Petitioner A et al., AppellantsRobert M. Morgenthau, as District Attorney of New York County, Respondent.

Court of Appeals of New York.

June 12, 1984.

Andrew M. Lawler, Adam B. Gilbert, Milton S. Gould, Andrea B. Feller and Anne T. Vitale, New York City, for appellants.

Robert M. Morgenthau, Dist. Atty., New York City (Debora K. Grobman and Amyjane Rettew, New York City, of counsel), respondent pro se.

OPINION OF THE COURT

COOKE, Chief Judge.

A client cannot assert the attorney-client privilege as to documents in the lawyer's possession if they were not prepared for litigation or for the purpose of seeking or imparting legal advice and they are not otherwise subject to a privilege against disclosure.The mere circumstance that the documents were revealed in confidence to a lawyer does not of itself transform the papers into privileged communications.Thus, with the exception of one document the courts below correctly refused to quash the Grand Jury subpoena as to the documents now before this court.

In 1982, a New York County Grand Jury was impaneled to investigate allegations of fraud in the negotiation of multimillion dollar loans made by a major New York bank.Among the targets of the Grand Jury's investigation were two individuals, identified here as petitioners"A" and "B".The Grand Jury eventually issued a subpoena to Bekins Record Storage Co., which was the repository of files of a law firm, identified here as "C & D," which had represented the petitioners.The subpoena directed the production of all files relating to the firm's representation of petitioners A and B.

The law firm and the individuals were notified of the subpoena and given an opportunity to review the files before they were examined by the Grand Jury or persons in respondent's office.Petitioners moved to quash the subpoena, asserting that the papers were variously immune from disclosure as attorney's work product, as protected by the attorney-client privilege, or as subject to the Fifth Amendment protection against self-incrimination.While the matter was pending, the parties attempted to work out their differences, which resulted in petitioners' withdrawal of their objections to a large number of documents.

The remaining papers were submitted to Supreme Court, 59 N.Y.2d 996, 466 N.Y.S.2d 682, 453 N.E.2d 1099, for an in camera examination.After this review, petitioners' motion was granted as to the documents in 19 files and the remainder were ordered disclosed.Petitioners appealed, focusing on 18 documents only.The Appellate Division, 94 A.D.2d 643, 463 N.Y.S.2d 349, quashed the subpoena as to two documents and otherwise affirmed.

On this appeal, petitioners have further restricted their opposition to disclosure to 12 documents.Eight of the documents are assertedly protected from disclosure because, if they were still in the clients' possession, their surrender would implicate the Fifth Amendment protection against self-incrimination.The remainder are claimed to be exempt from disclosure under the attorney-client privilege.

Petitioners' first argument derives from the general rule that documents, which would be protected from disclosure while in a client's possession, will not be subject to release if they are transferred to a lawyer under circumstances giving rise to an attorney-client relationship (seeFisher v. United States, 425 U.S. 391, 403-405, 96 S.Ct. 1569, 1577-1578, 48 L.Ed.2d 39;Matter of Vanderbilt57 N.Y.2d 66, 76, 453 N.Y.S.2d 662, 439 N.E.2d 378;3 Jones, Evidence § 21:16, p. 789;McCormick, Evidence § 89, pp. 184-185;8 Wigmore, Evidence § 2307, pp. 591-594).Petitioners claim that the contents of DocumentNos. 17, 93, 95, 99, 102, 103, 104, and 152 would tend to incriminate them and thus are privileged, and, by virtue of the documents having been passed to their attorney in confidence for legal advice, this privilege may be asserted by the C & D law firm.

Petitioners assert only their Federal right against self-incrimination.The Supreme Court has recently ruled that this right does not extend to the contents of business papers that were not created under government compulsion (United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552).Of course, we are bound by that interpretation and, hence, petitioners' Fifth Amendment claim must fail.

In so ruling, this court is aware of the concern that responding to a subpoena and authenticating documents may itself be compelled, incriminating testimony.That, however, is essentially a factual determination (seeid., 465 U.S., at p. ----, 104 S.Ct., at pp. 1242-1243;Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1580, 48 L.Ed.2d 39, supra;People v. Copicotto, 50 N.Y.2d 222, 228-229, 428 N.Y.S.2d 649, 406 N.E.2d 465).Except for one conclusory comment in an affidavit describing certain documents that "the statements below may have the effect of authenticating certain documents," nothing in the record reflects that petitioners raised the claim that merely responding to the subpoena would involve a violation of the Fifth Amendment.Thus, were the issue argued here by petitioners, it would be deemed unproven or, alternatively, resolved against them as an affirmed...