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[T] In re Nassau County Grand Jury Subpoena Duces Tecum dated June 249/22/2003
This opinion is uncorrected and will not be published in the printed Official Reports.
Digest-Index Classification: Grand Jury--Subpoena
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 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.
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 self-incrimination, 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 " e think it is similarly clear that partnerships may and frequently do represent organized institutional activity
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