Knopf et al v. Esposito et al

Filing 331

OPINION AND ORDER re: 311 LETTER MOTION to Compel Melissa Ringel to produce documents addressed to Judge Denise L. Cote from Eric Berry dated January 28, 2021. filed by Michael Knopf, Norma Knopf. The plaintiffs' January 28 application is granted. Ringel shall produce to the plaintiffs by February 8, 2021 the telephone records in her possession or under her control that are responsive to the subpoena. (Signed by Judge Denise L. Cote on 2/5/2021) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
NORMA KNOPF and MICHAEL KNOPF,
:
Plaintiffs,
:
-v:
:
:
FRANK M. ESPOSITO, DORSEY & WHITNEY,
LLP, NATHANIEL H. AKERMAN, EDWARD S.
:
FELDMAN, and MICHAEL HAYDEN SANFORD,
:
:
:
Defendants.
:
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17cv5833(DLC)
OPINION AND ORDER

Appearances:
For the plaintiffs:
Eric Berry
Eric W. Berry, PC
5 Columbus Circle, 8th Floor
New York, NY 10022
Gary Greenberg
Gary Greenberg, Esq.
666 Fifth Avenue, 27th Floor
New York, NY 10103
For non-party witness Melissa Ringel
Daniel Horwitz
Tracy Burnett
McLaughlin and Stern, LLP
260 Madison Ave.
New York, NY 10016
DENISE COTE, District Judge:
On January 22, 2021, non-party Melissa Ringel refused to
produce certain telephone records to the plaintiffs on the
ground that the production was protected under the Fifth
Amendment.

In a letter of January 28, the plaintiffs moved to

compel Ringel to produce the records.

The motion to compel is

granted.
“The Fifth Amendment provides that no person shall be
compelled in a criminal case to be a witness against himself.”
United States v. Fridman, 974 F.3d 163, 174 (2d Cir. 2020).
This privilege does not apply ordinarily to “documents
voluntarily prepared prior to the issuance of a summons.”

Id.

Because the documents are “not compelled testimony”, there is
“no Fifth Amendment protection for the contents of these
records.”

Id.

In Fisher v. United States, 425 U.S. 391 (1976), the
Supreme Court held that a taxpayer possessed no Fifth Amendment
privilege over his accountant’s workpapers in the taxpayer’s
attorneys’ possession, even where those papers might incriminate
the taxpayer “on their face”.

Id. at 409.

The production of

the papers pursuant to a subpoena “does not compel oral
testimony; nor would it ordinarily compel the taxpayer to
restate, repeat, or affirm the truth of the contents of the
documents sought.”

Id.

Accordingly, the Court concluded that

the taxpayer “cannot avoid compliance with the subpoena merely
by asserting that the item of evidence which he is required to
produce contains incriminating writing, whether his own or that
of someone else.”

Id. at 410.

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Yet the Supreme Court has recognized a “narrow” privilege
for the act of production, because producing documents may
“tacitly concede[] the existence of the papers demanded and
their possession or control” by the person turning them over.
Fridman, 974 F.3d at 174 (quoting Fisher, 425 U.S. at 410).

The

act of production privilege accounts for the fact that “the
witness's simple act of producing the documents could be used
against the witness -- for example, in those cases when the
simple fact that the witness possessed the documents would be
incriminating.”

In re Grand Jury Subpoena, 741 F.3d 339, 343

(2d Cir. 2013).

A determination of whether the act of

production communicates an incriminatory statement, and is thus
protected, depends on the “facts and circumstances of particular
cases.”

Fridman, 974 F.3d at 174 (quoting Fisher, 425 U.S. at

410-11).
The Supreme Court addressed the act of production privilege
at greater length in United States v. Hubbell, 530 U.S. 27
(2000).

Hubbell held that the Fifth Amendment privilege

protects a witness “from being compelled to disclose the
existence of incriminating documents that the Government is
unable to describe with reasonable particularity.”

Id. at 30.

The witness had produced over 13,000 pages of documents in
response to a grand jury subpoena that called for the production
of 11 categories of documents.

Based in part on the information

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gleaned from that production, the witness was charged with tax
and fraud crimes.

Id. at 31.

In contrast to Fisher, where the existence and location of
the accountant’s workpapers were a “foregone conclusion,” id. at
44 (citation omitted), the Government had not shown “any prior
knowledge of either the existence or the whereabouts of the
13,120 pages of documents” Hubbell produced.

Id at 45.

Additionally, “[i]t was unquestionably necessary for [Hubbell]
to make extensive use of the contents of his own mind in
identifying the hundreds of documents responsive to the requests
in the subpoena.”

Id. at 43 (citation omitted).

The Court

opined that the Fifth Amendment protects an individual “from
being compelled to answer questions designed to elicit
information about the existence of sources of potentially
incriminating evidence.”

Id. at 43.

In United States v. Greenfield, 831 F.3d 106 (2d Cir.
2016), the Court of Appeals examined whether a taxpayer’s
refusal to comply with an Internal Revenue Service (“IRS”)
summons for certain bank documents was “more like Fisher or
Hubbell.”

Id. at 116.

The court held that the “critical issue”

in determining whether the act of producing the documents would
violate the individual’s Fifth Amendment rights is whether the
Government can prove that it is a “foregone conclusion” that the
documents existed, were in the person’s control, and could be

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independently authenticated by the Government.

Id. at 118-19.

When the “communicative elements -- (1) the existence of the
documents, (2) the taxpayer's possession or control of the
documents and (3) the authenticity of the document -- were a
foregone conclusion,” the case resembled Fisher, and the act of
production privilege did not apply.

Id. at 115.

The Court held

that while the Government met the existence and control prongs
of the exception, it had not shown that it was a foregone
conclusion that the Government would be able independently to
authenticate the bank documents.

Id. at 119-20.

Finally, the Court of Appeals recently rejected the
assertion of the Fifth Amendment privilege by a taxpayer
resisting production pursuant to an IRS subpoena of bank account
and other documents, including account statements and checks.
Fridman, 974 F.3d at 170-71.

The court analyzed the three

prongs of the foregone conclusion doctrine outlined in
Greenfield.

As to the existence of the documents, it noted that

“[w]hen a summons seeks customary account documents . . . that
the Government knew existed, the documents’ existence is a
foregone conclusion.”

974 F.3d at 175 (citation omitted).

Additionally, it observed that “an individual's ability or
authority to receive the requested documents is an essential
part of being able to control the documents.”
omitted).

Id. (citation

Finally, it concluded that documents may be

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“implicitly authenticated” if “the Government establishes that
those documents are in fact what they purport to be and the
taxpayer was not forced to use his discretion in selecting the
responsive documents.”

Id. (citation omitted).

The Government

could also “independently” establish authenticity in several
ways, such as “through the testimony of third parties familiar
with that type of document.”

Id.

Thus, the Court affirmed the

district court’s ruling that the foregone conclusion doctrine
provided an exception to the act of production privilege.
The plaintiffs have subpoenaed Ringel for bills or invoices
received from service providers reflecting calls placed and
received on January 8 and from January 11 through January 14,
2016 for two telephone numbers, as well as the telephone records
cited in a letter of February 1, 2018 from Ringel’s attorney to
the Deputy Inspector General at the New York Unified Court System’s
Inspector General’s Office (“IG”).

The telephone numbers are for

Ringel’s home telephone number and cellphone number.

The parties

debate whether the act of production privilege applies to these
records and whether the foregone conclusion exception
nonetheless requires their production.
The burden of showing the existence of a privilege to
excuse compliance with the subpoena rests on Ringel.
States v. Pugh, 945 F.3d 9, 18 (2d Cir. 2019).

United

It is undisputed

that there is no Fifth Amendment privilege that attaches to the

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records themselves.

Ringel’s telephone records were created by

a third party and do not constitute her compelled testimony.
Nor has Ringel explained how the act of producing telephone
records created by a service provider for her telephone numbers
could incriminate her.

It is not incriminating to possess your

own telephone records or to receive them from a telephone
company.

Thus, this case more closely resembles Fisher than

Hubbell.

Ringel does not need to make extensive use of the

contents of her own mind in identifying the very specifically
described telephone records that the plaintiffs seek.
Even if Ringel had shown that the act of production
privilege applied here, the foregone conclusion exception to
that privilege would also apply.

The existence, control, and

authenticity of the telephone records are a foregone conclusion.
The plaintiffs can confirm that the telephone records exist and
can authenticate them through the telephone company that created
them.

Finally, Ringel’s ability to receive the records from the

telephone company demonstrates her control over those records.
Ringel makes four arguments in support of her invocation of
her Fifth Amendment privilege.

She argues that the records may

be incriminating in that they could trigger an investigation
into the accuracy of the extensive testimony that she previously
gave to the IG.

But this fear is not tied to the act of

producing the records.

Rather, it stems if at all from her

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prior testimony, which is not the subject of this subpoena, and
from the contents of the telephone records, which are not
protected by the Fifth Amendment.

Fridman, 974 F.3d at 174.

Ringel next argues that the plaintiffs cannot prove that
she currently has possession of the records they seek.

The

foregone conclusion exception, however, does not require the
party seeking the documents to prove in advance that the
subpoenaed party has maintained the records through to the date
of the subpoena.

Ringel’s control of the telephone number makes

it a foregone conclusion that she is the person who receives and
controls receipt of the telephone records.

See Greenfield, 831

F.3d at 119-20.
Ringel also argues that plaintiffs have not shown that they
can authenticate the records “through a prior version they
already possess.”

The foregone conclusion exception does not

require such a showing.
Finally, Ringel contends that the foregone conclusion
exception fails because the plaintiffs can obtain the documents
from the telephone company.

The foregone conclusion exception

does not include an exhaustion requirement.

Whether or not the

telephone company currently has the 2016 telephone records
sought through the subpoena, the plaintiffs are under no
obligation to seek them from the service provider first before
seeking them from the account holder.

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Conclusion
The plaintiffs’ January 28 application is granted.

Ringel

shall produce to the plaintiffs by February 8, 2021 the
telephone records in her possession or under her control that
are responsive to the subpoena.

Dated:

New York, New York
February 5, 2021

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