Grand Jury Subpoena Dated Jan. 4, 1984, In re
| Decision Date | 04 January 1984 |
| Citation | 750 F.2d 223 |
| Parties | , 53 USLW 2324, 16 Fed. R. Evid. Serv. 962, 11 Media L. Rep. 1224 In re GRAND JURY SUBPOENA DTD |
| Court | U.S. Court of Appeals — Second Circuit |
Mary McGowan Davis, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellant.
James A. Cohen, New York City (Page Kennedy, Douglass Maynard, Lisa Greenman, Legal Interns, Washington Square Legal Services, New York City, on brief), for appellee.
Richard M. Zuckerman, John Doar Law Offices, Richard Emery, New York City, submitted a brief for amicus curiae N.Y.Civil Liberties Union.
Sherwood B. Smith, Jr., Margaret M. Manning, Ober, Kaler, Grimes & Shriver, Washington, D.C., submitted a brief for amici curiae American Sociological Ass'n, American Political Science Ass'n and American Anthropological Ass'n).
Ann H. Franke, Lawrence White, Washington, D.C., Ralph S. Brown, New Haven, Conn., submitted a brief for amicus curiae American Ass'n of University Professors.
Before OAKES and WINTER, Circuit Judges, and CLARIE, District Judge. *
The United States appeals Chief Judge Weinstein's quashing of a subpoena duces tecum on the basis of a scholar's privilege.
We reverse and remand for further proceedings.
On March 21, 1983, a suspicious fire and explosion occurred at "Le Restaurant" in Glen Cove, Long Island. In the course of investigating the fire, the police questioned a waiter at the restaurant, appellee Mario Brajuha. Mr. Brajuha, who is not a target of the investigation, is a Ph.D. candidate at the State University of New York at Stony Brook where he is working on a dissertation entitled "The Sociology of the American Restaurant." Mr. Brajuha related to the police that it was his practice to record contemporaneously his daily observations and conversations at Le Restaurant as field notes to be used in preparation of his dissertation. From July, 1982 until the fire in March, 1983, Mr. Brajuha entered in his journal several hundred pages recording his observations at Le Restaurant.
On January 4, 1984 a federal grand jury sitting in the Eastern District of New York issued a subpoena directing Mr. Brajuha to appear on January 18, 1984 to testify and to produce:
any notes, documents, written or recorded material concerning the operation of, activity at, conversations at, opinions of the operations at, the "Le Restaurant" restaurant made as a result of your employment at the aforesaid restaurant during the period January, 1982 to the present.
Mr. Brajuha moved to quash the subpoena, claiming that it sought privileged materials. In support, he offered an affidavit of his attorney describing Mr. Brajuha's status as a student, giving the title of his dissertation, and stating that "many" of his research sources had been promised confidentiality. The affidavit further stated that the subpoena would require him to divulge his sources and to turn over his personal diary. The record also contains statements by scholars asserting in the abstract the need for such a privilege but adding nothing with regard to Brajuha's specific work.
On April 5, 1984, 583 F.Supp. 991, Judge Weinstein quashed the subpoena on the basis of a limited federal scholar's privilege analogous to the limited news reporter's privilege recognized in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). This appeal by the government followed.
Rule 501 sets forth a general rule covering all recognized common-law privileges and empowers federal courts to fashion testimonial privileges, guided by the "principles of the common law as ... interpreted ... in the light of reason and experience." Fed.R.Evid. 501. The Senate Report accompanying enactment of Rule 501 expressly stated that judicial "recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis." S.Rep. No. 1277, 93d Cong., 2d Sess. 13 (1974).
We regard the record in this case as far too sparse to serve as a vehicle for consideration of whether a scholar's privilege exists, much less to provide grounds for applying it to Brajuha. We therefore reverse and remand.
It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship, United States v. Stern, 511 F.2d 1364 1367 (2d Cir.1975); United States v. Kovel, 296 F.2d 918, 923 (2d Cir.1961), a burden not "discharged by mere conclusory or ipse dixit assertions." In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965). Brajuha's factual proffer in support of his claim of privilege hardly rises to the level of conclusory assertions. His attorney's affidavit states only that Mr. Brajuha is a doctoral candidate at SUNY, writing a dissertation entitled "The Sociology of the American Restaurant," and that, in the course of his employment as a "participant observer" at various Long Island restaurants, he has gathered information "from a variety of sources, many of whom were promised confidentiality."
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