Matter of 2003 v Spitzer (2003 NY Slip Op 51469(U))

[*1] Matter of 2003 v Spitzer 2003 NY Slip Op 51469(U) Decided on September 22, 2003 County Court, Nassau County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Digest-Index Classification: Grand Jury—Subpoena

Decided on September 22, 2003 County Court, Nassau County

In the Matter of Nassau County Grand Jury Subpoena Duces Tecum dated June 24, 2003, upon application of "DOE LAW FIRM", "JOHN DOE No. 1", "JOHN DOE NO.2", and JOHN DOE NO.3" (which names are fictitious and whose true identities are identified in the affirmation accompanying the application), Petitioner, against ELIOT SPITZER, ATTORNEY GENERAL of the STATE OF NEW YORK, Respondent.

Motion No. C-344

Kenneth Weinstein, Esq. Attorney for the Petitioner

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Matter of 2003 v Spitzer (2003 NY Slip Op 51469(U))

100 Garden City Plaza, Ste. 408 Garden City, New York 11530 New York State Attorney General 300 Motor Parkway, Suite 310 Hauppauge, New York 11375 By: Assistant AG Felice Sontupe JEFFREY S. BROWN, J. The petitioner, by their attorney, moves this Court by Order to Show Cause dated July 17, 2003, to quash a Subpoena Duces Tecum dated June 24, 2003 or, in the alternative, modifying the scope of said subpoena. The respondent has filed an Affidavit in Opposition and the petitioner has filed a Reply Memorandum of Law. The subpoena which is the subject of this motion requests records of John Doe law firm for the period January 1, 1999 to the present, including all books of record (general ledgers,

journals, cash disbursement books cash receipts books and petty cash books); all financial records; copies of all retainer statements and closing statements filed with the Office of Court Administration; records of any and all payments made to any persons or entities whose services were provided, relative to those cases for which partners and associates filed retainer statements, or were required to do so but have not yet done so; records of any and all payments made to persons or entities whose services were performed for the firm in connection with no-fault personal injury matters; record of any and all payments made to medical practitioners, facilities or any management or marketing companies representing those practitioners or facilities and any or all contracts, leases or agreements made with those practitioners or facilities; records of all cash payments to any persons or entities; records of any and all debts to or from all of the [*2]providers of services aforementioned; all retainer agreements obtained from clients by non-salaried employees or providers of services; payroll books and tax forms; and records showing the names of all present and past Associate Attorneys and Partners. file:///C|/Users/Peter/Desktop/NY/2/2003_51469.htm[4/21/2013 1:13:56 PM]

Matter of 2003 v Spitzer (2003 NY Slip Op 51469(U))

The petitioner asserts that the subpoena violates the individual partners of John Doe law firm's rights against self-incrimination, unreasonable searches and seizures and violates the attorney-client privilege of the law firm, the individual partners and their clients. The Attorney General argues that the petitioners, a law firm, do not have a privilege against self-incrimination, that the subpoena is reasonable and does not violate the petitioner's Fourth Amendment rights and that the documents sought do not fall withing the attorney-client privilege.

As to the petitioner's assertion that the subpoena violates the petitioner's rights against selfincrimination, it has "long been established that corporations and other collective entities possess no Fifth Amendment privilege. (Bronx Jewish Boys v. Uniglobe, Inc.,166 Misc2d 347; See e.g., Bellis v United States, 417 US 85, 88; Matter of Grand Jury v Kuriansky, 69 NY2d 232, 242; See also, Braswell v United States, 487 US 99). This is because the privilege of self-incrimination is a purely personal one and "the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity" (Bellis, supra, 417 US at 90; quoting United States v White, 322 U.S. 694, 699). A "long line of cases has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally." (Bellis, supra). "A substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity".... and "[w]e think it is similarly clear that partnerships may and frequently do represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership's financial records." (Bellis, supra). As in Bellis, the John Doe law firm is a partnership consisting of three partners. There is a test as to whether a small partnership should receive the benefit of the Fifth Amendment privilege. The test is when one can fairly say, under all the circumstances, that a particular organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody the common or group interests only.

(Sigerty v. Hines, 38 NY2d 260, 268, citing United States v. Slutsky, 35 FSupp 1105; United

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Matter of 2003 v Spitzer (2003 NY Slip Op 51469(U))

States v. White, 322 US 694, 711). The law firm in question is not a family partnership. "While small, the partnership here did have an established institutional identity independent of its individual partners. This was not an informal association or a temporary arrangement for the undertaking of a few projects of short-lived duration. Rather, the partnership represented a formal institutional arrangement organized for the continuing conduct of the firm's legal practice." (Bellis, supra). Further, it is also settled that a Fifth Amendment privilege may not be asserted with respect to records required to be kept by law. (see Grand Jury v. Kuriansky, 69 NY2d 232, 242; Shapiro v. United States, 335 US 1; People v. Doe, 59 NY2d 655). As such, [*3]the court finds that John Doe law firms cannot be afforded a privilege against self-incrimination. Moreover, the court finds that the subject subpoena does not violate the petitioner's Fourth Amendment rights. It is well settled that "a subpoena duces tecum, unlike a search warrant, does not have to be supported by probable cause." Grand Jury Subpoenas for Locals 17, 135, 257 and 608, 72 NY2d 307, 314-316. "[A] Grand Jury subpoena duces tecum, unlike an office subpoena, enjoys a presumption of validity that requires the party challenging subpoena to demonstrate, by concrete evidence, that the materials sought have no relation to the matter under investigation. Bare assertions of the lack of relevancy will not suffice. Rather, given the ranging, exploratory nature and operation of a Grand Jury, the witness served with a subpoena must show that 'the documents are so unrelated to the subject of inquiry as to make it obvious that their production would be futile as an aid to the' Grand Jury's investigation." (Virag v. Hynes, 54 NY2d 437,444). The petitioner has failed to set forth that the materials sought in this case have

no relation to the matter under investigation and, therefore, has not overcome the presumption of validity afforded to subpoenas duces tecum issued by a Grand Jury. Moreover, the petitioner "did not produce any concrete evidence that the subpoenaed documents had no conceivable relevance to the Grand Jury investigation." (see, In the Matter of Eco's Food Company, Inc., v. Edward Kuriansky, 100 AD2d 878). As to petitioner's argument that the subpoena is "patently unreasonable" and burdensome because it requests "far-ranging and extremely voluminous documents", the court finds that the subpoena is neither overly broad nor burdensome and that the information sought is relevant. (Matter of Grand Jury Subpoenas for Locals 17, 135, 257 and 608 of the United Broth. of Carpenters and Joiners of America, AFL-CIO 72 NY2d 307).

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Matter of 2003 v Spitzer (2003 NY Slip Op 51469(U))

Further, the court finds that the documents sought in the subpoena are not protected by an attorney-client privilege. "To invoke the attorney-client privilege, petitioners "must [show] that the information sought to be protected from disclosure was a 'confidential communication' made to [an] attorney for the purpose of obtaining legal advice or services." (Matter of Priest v. Hennessy, 51 NY2d 62, 69). Here, the petitioners have failed to show that any of the subpoenaed documents, which are documents required to be kept by "law", as well s those which are financial in nature, should be protected from disclosure. Finally, the petitioner, in his Reply Memorandum of Law, asserts that the requested Opening and Closing statements filed with the Office of Court Administration are confidential, pursuant to 22 NYCRR 691.20[c], and are not subject to disclosure. This rule, however, speaks to the nondisclosure of such statements by the Office of Court Administration, not the disclosure by the filing law firms. In fact, courts have held parties in contempt of court for failing to comply

with a Subpoenas Duces Tecum requesting such documents. (see Matter of Vitetta, 74 NY2d 860). As such, the petitioner's motion is denied in its entirety. [*4]It is SO ORDERED ENTERED JEFFREY S. BROWN J.C.C. Dated: September 22, 2003

Decision Date: September 22, 2003

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