A v. District Court of Second Judicial Dist.

Decision Date24 May 1976
Docket NumberNo. 27044,27044
Citation550 P.2d 315,191 Colo. 10
PartiesA et al., Petitioners, v. The DISTRICT COURT OF the SECOND JUDICIAL DISTRICT and the Honorable LeonardPlank, Judge thereof, Respondents, v. ATTORNEY Q, Intervenor.
CourtColorado Supreme Court

Holm, Willis & Dill, John L. Holm, Denver, for petitioners.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Thomas P. Casey, Chief Deputy Dist. Atty., Denver, for respondents.

Yegge, Hall & Evans, Paul D. Cooper, Denver, for intervenor.

KELLEY, Justice.

Petitioners instituted this original proceeding under C.A.R. 21 seeking relief in the nature of prohibition from the order of the Presiding Judge of the 1975 Statutory Grand Jury, the Honorable Leonard Plank, respondent, which denied their motions (a) to quash grand jury subpoenas and (b) to vacate the order requiring petitioners to appear and testify before the grand jury. Petitioners challenged the subpoenas on four grounds: (1) that the subpoenas constituted unreasonable searches and seizures; (2) that they violated the privilege against self-incrimination; (3) that they violated the attorney-client privilege; and (4) that the subpoenaed material was exempt as the work-product of an attorney.

We issued a rule to show cause why the relief sought should not be granted. In order to preserve the secrecy of the grand jury proceedings under Crim.P. 6.2 (1975 Supp.), we also granted petitioners' motion to permit petitioners to use certain anonymous letter designations in place of their names and to submit the exhibits in question in sealed envelopes. 1 The respondent answered the show cause order, and briefs were filed by all parties, including an intervenor, Attorney Q. The matter is now at issue. The rule is made absolute in part and discharged in part.

The statutory grand jury had been empaneled for some time and was investigating criminal acts alleged to have been committed by Factual Service Bureau, Inc., a private investigation firm, and its activities and relationship to certain insurance companies and attorneys. More specifically, the grand jury was investigating the possible existence of conspiracies to obtain confidential medical information by criminal means for use by the insurance companies and their attorneys in assessing and defending personal injury claims.

Petitioners C, F and H are insurance companies. Petitioners A and B are employees of petitioner C. Petitioners D and E are employees of petitioner F, and petitioner G is an employee of petitioner H. Attorney Q is a member of a Denver law firm which has represented insurance companies C and F for a period in excess of twenty years. 2

In November, 1975, when petitioners and Attorney Q were either residents of or doing business in Colorado, they were served with grand jury subpoenas. 3 The subpoenas required that each of the petitioners 4 appear before the grand jury to testify and to produce the following documents:

'All of the following for the period of November 1, 1972, to date, in which the Colorado offices or agents of (named insurance company petitioner) are or have been in any way involved:

'1. Original and copies of all correspondence communications (including notations, memoranda summaries or recordings thereof) between (named insurance company petitioner) its agents and employees and Factual Service Bureau, Inc., (hereinafter 'Factual') and its agents and employees.

'2. All cancelled checks of (named insurance company petitioner) payable to Factual.

'3. All billings and invoices of Factual to (named insurance company petitioner).

'4. Originals and copies of all medical information and records (including summaries thereof) transmitted to (named insurance company petitioner) by Factual.

'5. All orders to Factual for medical information or investigation.

'6. Complete file on Claim No. (number inserted), concerning the claim of (claimant's name inserted). 5

'7. All microfilm copies of the above, if the originals or copies are not available in documentary form.'

On or prior to the date set for their initial grand jury appearances, petitioners filed a motion to quash the subpoenas. A hearing on the motion followed on November 21, 1975. Lawyer Q was permitted to intervene because of his interest in the matter. At the outset of the hearing, the district attorney advised counsel for petitioners and Attorney Q that some of the petitioners were subjects of the grand jury investigation and would be advised of their Fifth Amendment rights when they appeared before the grand jury.

At the beginning of the hearing, the respondent judge advised counsel for petitioners that inasmuch as the subpoenaed documents were corporate records they were not protected by the Fifth Amendment, and he so ruled. Respondent also observed that some of the subpoenaed documents might be subject to the attorney-client privilege and the work-product exemption, but that to make such a determination an In camera exclusive inspection by the judge would be required.

The respondent thereupon ordered petitioners to produce all subpoenaed documents for his In camera inspection and determination of whether the claimed privilege and exemption applied to any of the documents.

The documents were produced on November 25, 1975, and on December 10, 1975, respondent ruled that a number of subpoenaed documents did not have to be produced because they were either unrelated to the grand jury investigation or were protected by the attorney-client privilege or the workproduct exemption. There is no issue raised as to these documents.

The respondent also ordered that the twenty-five exhibits involved in this proceeding be produced because they were relevant to the grand jury investigation and were not protected by the attorney-client privilege. He held that although the documents normally 'would be subject to the attorney-client privilege protecting confidential communications and work-product, the privilege was dissolved' because the exhibits contained evidence of possible criminal conduct by petitioners and Attorney Q. The possible criminal conduct was an alleged conspiracy to acquire medical records by illegal means through Factual Service Bureau.

We conclude that respondent's written order of production was correct, except as to two specific documents in which the attorney-client privilege was erroneously found to be dissolved. 6 Therefore, we discharge the rule in its entirety, except as to these two minor exceptions.

I.

It is, of course, the rule that a grand jury is entitled to obtain by testimony or subpoena all evidence necessary for its deliberations. However, in certain circumstances, exceptions to the general rule are permitted. For example, there is the necessity for conformity with the reasonableness requirement of the Fourth Amendment to the federal constitution. There is also the Fifth Amendment privilege from being compelled to be a witness against oneself, excusing a witness from testifying in a manner that will tend to incriminate him. Public policy also shields certain confidential matters, and in other situations for special reasons a witness may be excused from telling all that he knows. Losavio v. District Court in & for Tenth Jud. Dist., Colo., 533 P.2d 32 (1975), and cases cited therein.

The petitioners and the intervenor claim that their situation brings them within exceptional situations and that, therefore, they should not be compelled to produce documents nor be required to testify. Our examination of the facts in the light of the applicable law leads us to conclude that the trial court reached the right conclusion, except for the two minor exceptions subsequently noted.

II.

The petitioners 7 consolidate the Fourth and Fifth Amendment issues throughout their brief. They phrase the issue in this fashion:

'Should the Petitioners, A through H, have the right and privilege to assert their Fourth and Fifth Amendment rights by not appearing, testifying or producing records before the Denver County Grand Jury?' 8

Concededly, Fourth and Fifth Amendment rights are intertwined. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). However, we elect, as far as possible, to treat them separately.

A. FOURTH AMENDMENT

Petitioners contend that the subpoenas Duces tecum violate their rights against unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution. 9

The Fourth Amendment protects against unreasonable searches and seizures. This protection extends only to those interests in which one has a reasonable expectation of privacy. United States v. Miller, --- U.S. ---, 96 S.Ct. 1619, 48 L.Ed.2d 71 (announced April 21, 1976) 44 U.S.L.W. 4528; See Air Pollution Variance Board v. Western Alfalfa, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

It is clear that the individual petitioners A, B, D, E and G do not have standing to contest the subpoena of the documents in the possession of the corporate defendants because they simply do not have the requisite expectation of privacy in the corporate documents that is required under the Fourth Amendment. However, corporate petitioners C, F and H have an expectation of privacy regarding their corporate records. Unlike the Fifth Amendment, the protection of the Fourth Amendment is available to corporations, Oklahoma Press Pub. Co. v. Walling, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); and therefore, only the corporate petitioners have standing to raise the Fourth Amendment issue.

The petitioners state categorically that it is improper for the district attorney to use grand jury...

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