IN RE GRAND JURY SUBPOENA DUCES TECUM, ETC.

• Decision Date: 09 September 1981
• Docket Number: No. 11-188.,11-188.
• Citation: 522 F. Supp. 977
• Parties: In re GRAND JURY SUBPOENA DUCES TECUM DATED APRIL 23, 1981.
• Court: U.S. District Court — Southern District of New York

522 F. Supp. 977

In re GRAND JURY SUBPOENA DUCES TECUM DATED APRIL 23, 1981.

No. 11-188.

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

September 9, 1981.

Kasanof, Schwartz & Iason, New York City, for witness; Robert Kasanof, Lawrence Iason, Bart M. Schwartz, New York City, of counsel.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., by Nathaniel Akerman, Asst. U.S. Atty., New York City, for appellee.

OPINION AND ORDER

SOFAER, District Judge.

On April 23, 1981, a grand jury in the Southern District of New York served a subpoena on the witness involved in this proceeding. The witness refused to provide the documents called for by the subpoena. The government then took the witness before the Honorable Edmund L. Palmieri, acting as Part I Judge. After briefing, argument, and an in camera examination of the documents, Judge Palmieri ordered the witness to produce the subpoenaed documents. When the witness again refused, Judge Palmieri held him in contempt, but stayed enforcement pending an appeal. A panel of the Second Circuit Court of Appeals, 657 F.2d 5, heard the appeal and remanded the matter for further proceedings.

The subpoena calls for all of the witness's "original pocket calendars and desk calendars reflecting business appointments between January 1, 1973, and December 31, 1978." The witness, an officer at Warner Communications, Inc. ("Warner"), asserted that the calendars are private papers and therefore exempt from subpoena by virtue of the fifth-amendment privilege against self-incrimination. Judge Palmieri disagreed: relying on his in camera, ex parte examination of the documents, Judge Palmieri held that the privilege was inapplicable both because the documents are corporate, and therefore outside the privilege under long-standing doctrine, and because the subpoena sought "no testimony." Joint Appendix at 38, In re Grand Jury Subpoena Duces Tecum Dated April 23, 1981, 657 F.2d 5 (2d Cir. 1981). On appeal, the witness reasserted that the calendars are private and therefore privileged. The government asked the Circuit Court to affirm the District Court's ruling that the calendars are corporate and, as such, not privileged; the government also argued that after Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), even if the calendars are private, such documents no longer come within the fifth-amendment privilege. See e. g., The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 76-78 (1976). Addressing the first of the government's contentions, the Court of Appeals concluded that

in determining whether the documents are personal or corporate, the issue is whether by requiring their production, the witness is being compelled to testify against himself. The following nonexhaustive list of criteria is relevant to this determination: who prepared the document, the nature of its contents, its purpose or use, who maintained possession and who had access to it, whether the corporation required its preparation, and whether its existence was necessary to the conduct of the corporation's business.

In re Grand Jury Supoena Duces Tecum Dated April 23, 1981, 657 F.2d 5 at 8 (2d Cir. 1981). The Court remanded the case for further consideration of the specified criteria. In its remand order, the Court also noted that in the Second Circuit the fifth-amendment privilege applies, even after Fisher v. United States, supra, to an individual's production of his private papers pursuant to a subpoena. Because the government has accepted that ruling as binding in this case, the issue on remand to the District Court is whether the subpoenaed calendars are private and therefore privileged, or corporate and therefore subject to call.

When the matter was returned to the District Court, some extraordinary procedural steps became necessary to compile a record responsive to the Circuit Court's order. A hearing was held to determine the nature of the calendars' contents, the relevant criterion on which the Court of Appeals appeared to find the greatest uncertainty. Warner's Senior Vice President in charge of administrative affairs testified about company policy on desk and personal calendars. In addition, the witness's former secretary testified in the presence of both parties to what she knew of how both sets of calendars had been maintained and of what they contained. After both sides were permitted to examine the secretary on these general matters, the government left the proceeding, as it had no right to know the actual contents of the calendars prior to their surrender. The District Court then questioned the secretary in the presence of the witness and his attorneys about the actual contents of the desk calendars, to which the secretary had been given access in the course of her employment by the witness. The Court and the secretary together examined three full months of entries in each of two different calendar years, as well as many randomly selected entries from other years. The secretary testified that the portions examined were representative of the desk calendars she had actually seen. Transcript of Hearing at 47, 54-55, 57-58 (Aug. 19, 1981) hereinafter cited only as Transcript. In the course of examining the desk calendars the secretary also examined and responded to questions about pieces of paper interspersed among the pages of the desk calendars; the Court of Appeals had referred to the pieces of paper in its opinion, but the express terms of the subpoena did not cover them. The witness's attorney conceded that any material actually affixed to the desk calendars should be treated as part of the calendars.

After examining the desk calendars, the district judge showed the secretary the pocket calendars, which she identified as belonging to the witness. Counsel for the witness objected to allowing the secretary to examine the contents of the pocket calendars, noting that she had no prior access to them. The Court asked the secretary to demonstrate how close she had come to the calendars when the witness had made entries. She answered that she had been able to see the inside of the calendars but unable to read any of the writing or numbers on the pages. Transcript at 60. The district judge then read to the secretary some names that were written in the pocket calendars; the secretary testified that several were names of corporate officers, or of business associates, or of entities related to the witness's work. Transcript at 63-65. Following that inquiry, the secretary left the hearing room, and the district judge examined parts of the pocket calendars in the presence of the witness and his attorneys. After being satisfied that the calendars had been adequately scrutinized, the Court invited comments on the need for further examination. The Court responded to the comments offered and proceeded to make findings concerning the nature of the calendars' contents. Those findings, Transcript at 79-83, incorporated here by reference, were later provided to the government, and the Court heard brief arguments from the parties on whether the calendars are corporate or private.

It is long-established doctrine that the fifth-amendment privilege against self-incrimination is inapplicable to corporate papers. In the first important American case on the subject, the papers held subject to subpoena — the contents of a copy ledger — were owned by the corporation and had been demanded from the individual involved by both the government and the corporation's board of directors; in addition, the district judge in the case had agreed to delete any personal papers inside the copy ledger. See Wilson v. United States, 221 U.S. 361, 378, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911). In subsequent cases, the Supreme Court has made clear that the doctrine applies to corporate papers possessed and owned by a defunct corporation's former officers, Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309 (1913), to papers of associations such as labor unions, United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), and to papers of a small law firm operating as a partnership, Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). The doctrine, as its rationale was articulated by Mr. Justice Thurgood Marshall in his opinion for the Court in Bellis v. United States, rests on two premises: (1) that subpoenas for non-private papers do not involve the coerced personal testimony historically protected by the fifth amendment; and (2) that access to the papers of an association is both less intrusive of privacy and more essential for public or private control of the association than access to private papers. The privilege is personal and therefore limited to materials held solely in an individual's personal capacity, wrote Justice Marshall, and "a substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity." Id. at 90, 92, 94 S.Ct. at 2184, 2185.

Although the broad parameters and rationale of the corporate-private distinction are now clear, particular documents sought in subpoenas can give rise to considerable uncertainty. No fifth-amendment privilege applies when the government seeks the books and records of a company or association, such as ledgers, receipt books, minutes of directors' meetings, and other official or quasi-official documents. And documents "created or authenticated by a State or the Federal Government ... would seem ordinarily to fall outside the protection of the privilege. They hardly reflect an extension of the person." Fisher v. United States, supra, 425 U.S. at 426, 96 S.Ct. at 1588 (Brennan, J., concurring). By contrast "non-business economic records" (including non-business cancelled checks or tax records), personal letters, and papers "in the nature of a personal diary" are private, and therefore presumably protected. Id. at 427, 96 S.Ct. at 1589. Problems are posed by cases...