Galgano v. County of Putnam, New York et al

Filing 528

ORDER with respect to 526 Motion to Compel. Defendants are to respond to this letter by 4/6/21. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/31/2021) (kv)

Case 7:16-cv-03572-KMK-PED Document 526 Filed 03/31/21 Page 1 of 3

--- - Ii¥!~1e1s WINDELS

MEMO ENDORSED

Lane&

MARX

Mittendor£LLP

Bradley D. Simon
212.237.1164
[e-mail]

windelsmarx.com

156 W. 56th Street I New York, NY 10019
T. 212.237.1000 I F. 212.262.1215

March 31 , 2021
VIAECF

The Honorable Kenneth M. Karas
United States District Court for
the Southern District of New York
300 Quarropas Street
White Plains, New York 10601

Re: Galgano. v. County of Putnam, et. al.
SDNY Docket No. 16 CV 3572 (KMK)
Dear Judge Karas:
I represent Helen Galgano, the wife of George Galgano, the plaintiff in the above
captioned case. (Dkt. 251 ).
On August 5, 2018 Mrs. Galgano moved before Magistrate Judge Davison to preclude
disclosure of third party confidential marital communications. Pending before the Court is Mrs.
Galgano's Rule 72 appeal of Magistrate Judge Davison's order on that issue. (Dkt. 279). The
parties have conferred and made progress toward resolving the issues pursuant to the Court's
directive of January 27, 2021. However, in the course of those discussions, it became clear that
while the issue of intercepted phone calls likely is one that the parties can and will resolve, there
also exist privileged communications in the form of marital text messages that have been produced
in this litigation. Clearly the same concerns about dissemination of privileged private marital
communications are present regardless of whether those communications were in the form of a
text or a phone call.
Moreover, Mrs. Galgano is deeply troubled by the Defendants' persistent dissemination of
her privileged communications, specifically text messages to and from her husband. This occurred
yet again when Defendants sent to Mr. Galgano ' s counsel a letter dated March 8, 2021, attached
to which was a privileged communication between Mrs. Galgano and her husband. In addition, the
Defendants served on Mr. Galgano a request to admit authenticity of what appear to be all of the
text messages between Mr. Galgano and Mrs. Galgano, which include extremely private and
personal marital communications. While it seems as if those text messages were not a part of the
"intercepted" universe and instead were part of communications that were seized in the July 2,
2014 raid on Mr. Galgano' s home and office, that does not change the fact that Mrs. Galgano is
{11909865: I }
NEW YORK, NY

I

NEW BRUNSWICK, NJ

I

MADISON, NJ

I

STAMFORD, CT

case 7:16-cv-03572-KMK-PED Document 526 Filed 03/31/21 Page 2 of 3

~ WINDELS 1
iY!~~els

MARX

Lane&
Mittendorf, ILP

Hon. Kenneth Karas
March 3 I, 2021
Page 2 of3

not a party to this litigation and she has never waived her privilege. It appears that text messages
from Mr. Galgano's mobile phone were downloaded in their entirety and ultimately provided to
counsel without any procedure or mechanism in place to filter out non-pertinent, privileged
communications. The communications seized in the July raid concern the full universe of private
and personal communications between married people over the course of several years.
The common law has long recognized that communications between spouses are subject
to privilege. See John Henry Wigmore, A Treatise on the Anglo-American System of Evidence
(McNaughton rev. 1961). The marital privilege is codified in Section 4502 of the New York Civil
Practice Law and Rules, which provides that"[a] husband or wife shall not be required, or, without
consent of the other if living, allowed, to disclose a confidential communication made by one to
the other during marriage." This privilege protects disclosure of the confidential text messages
between Mr. and Mrs. Galgano recovered from Mr. Galgano's personal cell phone by Defendants.
While the privilege does not protect "ordinary daily exchanges between spouses," People
v. O'Dell, 36 A.D.2d 774,318 N.Y.S.2d 908 (N.Y. App. Div. 3d Dep't 1971), it does attach to
"those statements made in confidence and that are induced by the marital relation and prompted
by the affection, confidence and loyalty engendered by such relationship." People v. Fediuk, 66
N.Y.2d 881, 883-884, 489 N.E.2d 732, 734 (N.Y. 1985)(intemal quotations omitted). And while
the communication, like any privileged communication, must be confidential, People v. Dudley,
24 N.Y.2d 410, 413, 248 N.E.2d 860, 862 (N.Y. 1969), a communication between spouses "is
presumed to have been conducted under the mantle of confidentiality." Fediuk, 66 N.Y.2d at 883
(quoting People v. Fields, 38 A.D.2d 231, 233 (1972)). Certainly text messages between a husband
and wife, retrieved from the husband's personal cell phone, should be presumptively confidential,
and there is nothing in the circumstances surrounding the text messages between Mr. and Mrs.
Galgano suggesting that they were not "induced by the marital relation and prompted by the
affection, confidence and loyalty engendered by such relationship." Fediuk, 66 N.Y.2d at 883. A
useful analogue is People v. Thomas, 96 A.D.3d 1670, 949 N.Y.S.2d 545 (Sup. Ct. App. Div. 4 th
Dep't 2012), where the Appellate Division ruled that the trial court erred in refusing to suppress
statements made by a husband to his wife that were obtained surreptitiously by the police, who
were monitoring the private conversations from an adjacent room. Id at 1671. Absent a
compelling showing by the Defendants, the marital communications at issue here should be treated
as presumptively privileged. See also People v. Allman, 59 Misc. 2d 209, 212 (Kings Cty. Sup.
Ct. 1969) ("confidentiality of a husband-wife communication is to be presumed unless such
presumption is rebutted by the character of the communication itself').
Mrs. Galgano respectfully requests that Your Honor issue an order directing Defendants to
immediately cease publicizing Mrs. Galgano' s marital communications, at least until the resolution
of the pending motion.

{ 11909865: I}

Case 7:16-cv-03572-KMK-PED Document 526 Filed 03/31/21 Page 3 of 3

WINDELS
MARX

1
~~e1s

Lane&
Mittendorf, UP

Hon. Kenneth Karas
March 31, 2021

Page 3 of3

Respectfully submitted,
Isl Bradley D. Simon

Bradley D. Simon
Defendants are to respond to this letter by 4/6/21.
So Ordered .

3/31 /21

{ 11909865: I}