United States v. Doe

959 F.2d 1158, 35 Fed. R. Serv. 540, 1992 U.S. App. LEXIS 5068
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 24, 1992
DocketNo. 1073, Docket 91-6305
StatusPublished
Cited by53 cases

This text of 959 F.2d 1158 (United States v. Doe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Doe, 959 F.2d 1158, 35 Fed. R. Serv. 540, 1992 U.S. App. LEXIS 5068 (2d Cir. 1992).

Opinion

KEARSE, Circuit Judge:

Intervenor-appellant, referred to as “John Doe,” the president and sole shareholder of a corporation referred to in the present proceedings by the fictitious name “XYZ,” appeals from an order of the United States District Court for the Southern District of New York, Milton Pollack, Judge, ordering Paul, Weiss, Rifkind, Wharton & Garrison (“Paul-Weiss”), a law firm representing Doe and formerly representing XYZ, to comply with a grand jury subpoena duces tecum calling for the production of certain XYZ records in Paul-Weiss’s possession. Over objections by Doe and Paul-Weiss on grounds of Fifth Amendment, attorney-client, and attorney-work-product privileges, the district court granted the motion of the United States to compel compliance, finding that the documents were neither expressions of Doe, nor communications between attorney and client, nor the product of an attorney. On appeal, Doe pursues the above objections. This Court, by summary order dated January 24, 1992, affirmed the order compelling production, stating that this opinion would follow.

I. BACKGROUND

The following facts are largely uncontested. In September 1991, a federal grand jury in the Southern District of New York was conducting- an investigation of Doe with respect to possible violations of various federal laws, including securities statutes and money laundering statutes. In the investigation, the government learned that XYZ, Doe’s wholly-owned corporation, had paid the bills for several telephone lines, including those used by Doe in certain of his homes and in his car. In October 1991, grand jury subpoenas duces tecum were served on Doe (“Doe subpoena”) and on the custodian of XYZ’s records (“XYZ subpoena”). The XYZ subpoena requested “[a]ny and all telephone records for any telephone as to which [XYZ] has paid bills, including but not limited to records for phones in [specified locations] and ... cellular car phones, for the period 1985 to present.” The Doe subpoena requested “[a]ll monthly telephone bills, or statement of accounts” for any of seven specified telephone numbers.

At the time these subpoenas were served, Paul-Weiss represented not only Doe but XYZ as well, in connection with the grand jury proceeding and with a separate investigation by the Securities and Exchange Commission. Paul-Weiss accepted service of the XYZ subpoena, but it subsequently informed the government that it would soon be withdrawing as counsel for XYZ and would thereafter represent only Doe. It also informed the government that neither Paul-Weiss nor XYZ had any original telephone records, and that Paul-Weiss would not disclose whether it had copies. Eventually, XYZ’s new counsel produced certain telephone records pertaining chiefly to 1990 and 1991, stating that counsel was unaware of the existence of any other telephone records that might be deemed called for by the XYZ subpoena.

The government then served Paul-Weiss itself, as custodian, with a subpoena dated November 1, 1991 (“November subpoena”) requesting production, for the period 1985-1989, of “[a]ll monthly telephone bills, or statements of accounts” for any of the seven telephone numbers specified in the Doe subpoena, and of all telephone records for any telephone as to which XYZ had paid the bills. Paul-Weiss refused to comply with the November subpoena, claiming that responsive documents, if any, were protected by, inter alia, (1) Doe’s Fifth Amendment privilege against self-incrimination, (2) Doe’s attorney-client privilege, and (3) attorney-work-product privilege. Paul-Weiss also argued that requiring the [1162]*1162production of documents protected by the asserted privileges would violate Doe’s right to due process.

The government moved in the district court for an order compelling Paul-Weiss to comply with the November subpoena, contending principally that the requested documents were corporate records, not records belonging to or created by Doe, and that the claimed privileges were not implicated. In opposition to the motion, Doe, represented in part by new counsel, was permitted to intervene and to submit in camera affidavits and documents in support of the claims of privilege.

Following a hearing at which the court heard oral argument and received evidence as to XYZ’s payment, maintenance, and tax treatment of the telephone bills at issue, the government’s motion was granted. The court stated, in pertinent part, as follows:

The documents sought by the grand jury in possession of the witness subpoenaed for them are copies of records created by a telephone company for certain telephone numbers.
[I]t is the Court’s ruling that the items that have been tendered to the Court are not the product of any attorney; they are not a communication between an attorney and client, and as a third party’s records, there is no self-incrimination therein by John Doe covered by the Fifth Amendment. They are not an expression of John Doe.
The documents are not personal papers but are XYZ Corporation’s records of payments made by it. John Doe is not compelled by their production to testify against himself. The documents, in the Court’s judgment, were necessary to the conduct of the corporation’s business and the filing of its tax returns.
The telephone records contain no testimonial declarations by John Doe. They were not prepared by John Doe but by the Telephone Company.
A witness has testified here that the telephone numbers mentioned in the record were listed in the name of John Doe and that, so far as he could see, the bills were addressed by the phone company to John Doe but came to the premises occupied by XYZ Corporation and John Doe, to the secretary employed by the corporation; that the bills were paid with corporate funds, and the evidence is that the bills were stored in corporate files on corporate premises. John Doe did not pay for the phone service, and there was no reimbursement by him for any non-corporate usage.
The net of the whole matter, as presented to the Court, indicates to the Court very clearly that the motion to compel production of the disputed documents should be granted, and the attorney in possession of the same is directed to turn them over to the grand jury.

(Hearing Transcript, December 9, 1991, at 84-87.)

The district court stayed its order compelling production pending argument of the present appeal. This Court continued the stay until January 24, 1992, when it entered a summary order affirming the district court’s order, stating that this opinion would follow.

II. DISCUSSION

On appeal, Doe principally renews his claims that Fifth Amendment privilege, attorney-client privilege, and attorney-work-product privilege permit him to cause Paul-Weiss to refuse to produce the documents called for by the November subpoena. We conclude that the claims of privilege were properly rejected.

A. Fifth Amendment Privilege

Doe contends that enforcement of the November subpoena would violate his Fifth Amendment privilege principally on the ground that the act of producing the documents would tend to incriminate him. We conclude that enforcement of the subpoena does not violate his Fifth Amendment privilege.

[1163]

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Bluebook (online)
959 F.2d 1158, 35 Fed. R. Serv. 540, 1992 U.S. App. LEXIS 5068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-doe-ca2-1992.