United States v. International Business Machines Corp.

83 F.R.D. 92, 28 Fed. R. Serv. 2d 365, 1979 U.S. Dist. LEXIS 12173
District Court, S.D. New York·Decided May 24, 1979·No. No. 69 Civ. 200 (DNE)·Published·Cited by 7 cases

Opinion

MEMORANDUM AND ORDER

EDELSTEIN, Chief Judge.

Plaintiff moves the court pursuant to Federal Rule of Civil Procedure 45(d)(1) for an order directing that Arthur G. Anderson, an employee and prospective witness of defendant, produce for inspection and copying certain documents called for in a subpoena duces tecum dated March 26, 1979, that plaintiff caused to be served on Anderson. Defendant and Anderson have made timely objection to the subpoena, and now interpose a number of arguments against enforcement of the subpoena.1 Although each [94]*94such ground of opposition fails, three are of sufficient import to suggest some comment by the court in granting plaintiff’s motion.

First, defendant notes that its chairman, Frank T. Cary, is scheduled to testify before Anderson; that after Cary testifies it expects to decide to narrow the scope of Anderson’s testimony, thus allowing for a diminution in the scope of the subpoena; that plaintiff’s refusal to agree to adjourn Anderson’s deposition and subpoena compliance to a time shortly after Cary’s testimony is complete demonstrates that the purpose of the subpoena is to maximize the burden on defendant.2 It need hardly be stated that a purpose to harass a witness or a party by abuse of the court’s process will not be countenanced, yet such delict must be carefully distinguished from the unavoidable burden that a valid subpoena, which may be necessarily broad, imposes. As stated in Atlantic Coast Insulating Co. v. United States, 34 F.R.D. 450, 453 (E.D.N.Y.1964):

The request for production is broad; it appears, however, to be the breadth of precaution and not that of harassment. The outsider could be precise and could impose a light burden of disclosure if he knew the records as the record keeper may be supposed to know his own records. But the outsider has not that knowledge and so, to avoid a frustrated examination, he weaves as close a net as he can.

So too in the present case the court will not infer an abusive purpose from plaintiff’s refusal to adjourn a subpoena duces tecum that, on its face, calls for documents relevant (within the broad ambit of federal discovery, see Fed.R.Civ.P. 26(b)) to the pending deposition and trial examination of Anderson. If it is admitted that plaintiff has the right to depose Anderson and to subpoena documents within his custody and control, as it surely does under this court’s order of July 28,1977, it cannot then be said that the unilateral convenience of defendant suffices to invalidate the same subpoena. If an adjournment appears mutually beneficial, the parties are free to enter a stipulation respecting the timing of this and other depositions and document inspection. Absent such an agreement, however, the court will neither construct by its orders a deposition schedule to suit one party’s trial schedule, nor consider the allegedly improvident timing of motions alone as a ground to deny enforcement. To do so would be to weigh such imponderables as the potential lessening of the claimed burden of compliance against the disadvantages of delay in trial preparation, guided only by the contradictory averments of counsel. That is a path the court declines to follow.

A second issue of some novelty presented by defendant is a constitutional objection to paragraph eleven of the document schedule of the instant subpoena. That paragraph calls for “[a]ll documents relative to your work, study or experiences at the Center for Study of Democratic Institutions during 1970—1971.” Anderson spent 1970-71, on leave of absence from defendant’s employ, as a Fellow at the Center, which he describes as “an independent non-profit research organization” to which he was attracted because of “the dialogue it sought among leaders from a wide variety of disci[95]*95plines about contemporary and potential future world problems and possible solutions to those problems.” Affidavit of Arthur G. Anderson, May 3, 1979, at ¶ 3. Anderson contends that the document demand invades his rights of privacy, free speech and association.

The constitutional attack here is akin to the argument for a “scholar’s privilege” mounted in In re Popkin, 460 F.2d 328 (1st Cir. 1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1527, 36 L.Ed.2d 199 (1973), and In re Falk, 332 F.Supp. 938 (D.Mass.1971). In Popkin, the court recognized a free speech interest in maintaining the free flow of information to scholarly researchers from confidential sources. Arguably a subpoena or questions asked before the grand jury that probed the identities of such sources would chill the flow of information. Yet the court refused to invalidate questions put to the witness insofar as they probed only his contacts with other scholars who were not primary sources: there is no first amendment interest in professional fellowship sufficient to override the lawful inquiries of a grand jury. Falk reached a similar conclusion by a different path, refusing to quash a grand jury subpoena ad testificandum directed at a professor of international law. The court held that his claim of constitutional scholar’s privilege was defeated by the absence of evidence to establish a “real likelihood that petitioner’s sources of lawfully transmitted information will be inhibited by his mere appearance before the grand jury.” 332 F.Supp. at 941 (footnote omitted). To the extent that Anderson’s claim is premised on a purported first amendment scholar’s privilege or the principles said to underlie it, it fails for the reasons isolated in Popkin and Falk : he has not demonstrated that his work at the Center relied on confidential sources, as opposed to mere discussion with fellow students, professionals, and scholars, or that enforcement of this subpoena is likely to thwart the flow of information upon which scholars and others may depend. In any event, Popkin and Falk were decided before Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which rejected a putative journalist’s privilege not to give grand jury testimony relevant to a criminal investigation pursuant to subpoena, despite an agreement to maintain the confidentiality of sources. The Branzburg opinion, which reaffirmed the duty of every person to give evidence pursuant to lawful process, counsels strongly against recognizing a privilege here that would defeat the plaintiff’s subpoena.3

Anderson also raises privacy and free association claims. Certainly these domains of constitutional concern are interrelated and mutually supportive. The liberty to enter associations with other individuals to promote an ideology, advance ideas or air grievances free from governmental interference is fundamental to our constitutional order. E. g., Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). And personal autonomy in such areas as family planning, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut,

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United States v. International Business Machines Corp., 83 F.R.D. 92, 28 Fed. R. Serv. 2d 365, 1979 U.S. Dist. LEXIS 12173 (S.D.N.Y. 1979).

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