In re Grand Jury Subpoenas Dated January 20, 1998

• Decision Date: 27 February 1998
• Docket Number: No. 98 CV 1243(RR).,98 CV 1243(RR).
• Citation: 995 F.Supp. 332
• Parties: IN RE GRAND JURY SUBPOENAS DATED JANUARY 20, 1998.
• Court: U.S. District Court — Eastern District of New York

995 F.Supp. 332

IN RE GRAND JURY SUBPOENAS DATED JANUARY 20, 1998.

No. 98 CV 1243(RR).

United States District Court, E.D. New York.

February 27, 1998.

Laura A. Brevetti, New York City, for Patrolmen's Benevolent Association.

Zachary W. Carter, U.S. Atty., Eastern District of New York, Brooklyn by Lauren J. Resnick, Andrew Weissmann, Asst. U.S. Attys., for United States.

AMENDED Memorandum and ORDER

RAGGI, District Judge.

The Patrolmen's Benevolent Association of the City of New York (PBA), which represents 26,000 New York City police officers and 19,000 retired officers, moves to limit the testimony of three union officials who received subpoenas dated January 20, 1998 to appear before a grand jury that is investigating possible criminal conduct by a number of New York City police officers. The incident that is the focus of the federal inquiry has already led to the filing of both federal and state criminal charges against a number of police officers. Because the federal grand jury investigation is ongoing, this court does not detail the incident in this decision.

The three subpoenaed officials all hold positions within the PBA that provide for them "to represent and act" on behalf of members "in all matters pertaining to the performance of their duties as Patrolmen." See Constitution and By-laws of the Patrolmen's Benevolent Association, Art. IX, §§ 6, 7 & 8 (attached as Exh. 1 to PBA Memorandum of Law). In some circumstances, this representation may involve only informal discussions with Police Department management. In others, union officials will represent police officers in more formal internal proceedings. In this case, it appears that shortly after one or more of the subpoenaed witnesses conversed with certain police officers, the PBA arranged for private attorneys to represent the officers in defending against the state criminal charges.

The PBA submits that any conversations between the subpoenaed witnesses and any police officers regarding the events under criminal investigation are privileged. Specifically, the union asserts that the attorney-client privilege shields these communications, although none of the subpoenaed witnesses are in fact members of the bar. Four officers have appeared before the court through counsel specifically to invoke this privilege. It also appears that the PBA and the officers may be urging recognition of some other privilege generally shielding communications between union members and their representatives on matters of union concern.

Having carefully considered the submissions of the parties and having heard oral argument, the court finds that no privilege affords the broad shield urged by the PBA. Its motion to preclude all questioning of the subpoenaed witnesses regarding their conversations with police officers about the matter under federal investigation is denied.

Discussion

I. Standards Applicable to Claims of Privilege

Rule 501 of the Federal Rules of Evidence states that privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501; see Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). This language does not "freeze the law of privilege." Id. Rather, it "`provide[s] the courts with the flexibility to develop rules of privilege on a case-by-case basis.'" Id. (citing 120 Cong. Rec. 40891 (1974)).

In deciding whether a particular case presents facts warranting the recognition or application of a privilege, certain general principles apply. Foremost among these is the "fundamental maxim," recognized "[f]or more than three centuries, ... that the public ... has the right to every man's evidence." United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950); accord United States v. Nixon, 418 U.S. 683, 708-10, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996). Thus, courts start "`with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'" United States v. Bryan, 339 U.S. at 323 (quoting 8 J. Wigmore, Evidence § 2192 (3d ed.1940)). It is the party seeking an exception from this principle that bears the burden of establishing the existence of a privilege and its applicability to a particular case. See, e.g., United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997). The burden is a heavy one since privileges are neither "lightly created nor expansively construed." United States v. Nixon, 418 U.S. at 710. Instead, they are recognized "`only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.'" Trammel v. United States, 445 U.S. at 50 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)); accord Jaffee v. Redmond, 116 S.Ct. at 1929 (for a privilege to be recognized it must not only promote confidential communications valued by the parties; it must serve an important public interest).

In this case, the PBA has failed to demonstrate that any privilege shields its officials from answering any and all grand jury questions about conversations they may have had with police officer members regarding the events now under federal investigation.

II. Union Official-Union Member Privilege

The PBA cites no case in which a federal or state court has ruled that some form of union privilege bars a prosecutor or grand jury from inquiring into conversations between a union member and his union representative. For this court to so hold would require it to recognize a new privilege. As noted, courts proceed with extreme caution before recognizing new privileges. Four criteria are generally relevant: (1) the communication at issue must be made in confidence, (2) confidentiality must be essential to the maintenance of a full and satisfactory relationship between the parties, (3) the parties' relationship must be one that the community has decided ought to be sedulously fostered, and (4) the injury that would inure to the relationship by the disclosure of the communication must plainly outweigh the important societal interest in obtaining all the evidence necessary to ensure the correct disposal of litigation. See 8 J. Wigmore, Evidence § 2285 (McNaughton Rev.1961).

Applying these principles to this case, the court declines to recognize a common law privilege shielding conversations between union officials and members on matters of union concern. Preliminarily, the court notes that the affidavits submitted by the parties are not sufficiently detailed to establish that all of the communications that are the subject of this in limine motion were made in confidence. For example, the court does not know how many conversations the subpoenaed witnesses had with officers regarding the matter under federal investigation. Neither does it know where each meeting took place, the participants therein, the subjects discussed, or the procedures employed by the PBA to ensure confidentiality. Similarly, the subjective assertions of the union officials and the officers that total confidentiality was essential to the maintenance of their relationship are not enough to establish this element conclusively. See generally Walker v. Huie, 142 F.R.D. 497, 500 (D.Utah 1992) ("one could perhaps envision a satisfactory union representation relationship without total confidentiality").

Nevertheless, even if the court were to assume that a fuller exploration of these first two factors would support the movant's claim, the PBA has still failed to show that the union relationship is so highly valued by an ordered society that its confidences warrant protection even at the cost of losing evidence important to the administration of justice. This same conclusion was reached by the district court in Walker v. Huie, supra. In that case, a Salt Lake City police officer was sued for violations of plaintiffs' constitutional rights in connection with an arrest. Plaintiffs sought to depose the police association president who had represented the officer in his departmental disciplinary proceedings. Defendant and the union president moved for a protective order claiming that their conversations were privileged. The court found that whatever injury disclosure might cause to the relationship between police officers and their union representatives, that injury did not outweigh the benefit to be gained from the correct disposal of the litigation. See id. at 501. This court finds the reasoning of Walker persuasive and its conclusion even more applicable when considered in the context of a criminal proceeding.

Certainly, the PBA cannot claim that the confidential relationship between a union representative and a union member has the same strong historic roots as those generally afforded the protection of a common law privilege, i.e., husband and wife, clergyman and communicant, or attorney and client. Neither does the union relationship appear more deserving of protection than other important confidential relationships which courts have refused to recognize as privileged. See, e.g., University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (refusing to recognize a privilege for confidential communications in course of university peer review proceedings); United States v. Gillock, 445 U.S. 360, 373, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (rejecting speech and immunity privilege for state legislators); Couch v. United States, 409 U.S. 322, 335, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) (no accountant-client privilege exists under federal law)...