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September 21, 2016

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum
New York State Joint Commission. on Public Ethics v Campaign for One N.Y., Inc., 2016 NY Slip Op 26290, Supreme Court, Albany County, Denise A. Hartman, J.

The New York Joint Commission on Public Ethics (JCOPE) commenced a proceeding in Supreme Court, Albany County, to compel Campaign for One New York, Inc. (Campaign) to comply with  non-judicial subpoena duces tecum that it issued in 2015 and in 2016 pursuant to Executive Law §94.

Campaign cross-moved for a protective order limiting production of certain documents demanded pursuant to the 2015 subpoena and to quash the 2016 subpoena.

Finding that JCOPE has established that it had the authority to issue both subpoenas, Judge Hartman addressed a number of issues raised by Campaign in objecting to the production of certain of the documents demanded pursuant to the subpoenas including the application of the Deliberative Process Privilege; protection as a Proprietary Trade Secret; the Attorney-Client Privilege; the Attorney Work Product privilege; and the Common Interest Doctrine

The Deliberative Process Privilege

Campaign asked the court to shield 41 documents pursuant to the deliberative process privilege. However, said the court, as Campaign is not a governmental agency, it does not have the right to assert the deliberative process privilege explaining that the privilege is a common law privilege that has been codified as an exception to FOIL.

As so codified,  the privilege shields from FOIL disclosure inter-agency or intra-agency materials that are prepared to assist a government agency's substantive decision-making process and, citing Matter of World Trade Ctr. Disaster Site Litigation, 2009 WL 4722250, the court noted that the privilege has also been applied to protect documents containing "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" for the purpose of "enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government."

While the language of FOIL only protects inter-agency and intra-agency materials, the Court of Appeals has extended the privilege to materials prepared for a government agency, at its request, "by an outside consultant."* As the privilege protects the deliberative processes of the government agency it affects, it must be invoked by that agency and not the private entity acting on the agency's behalf. In so doing, the governmental agency invoking the privilege must demonstrate "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be" and the court must balance the agency's interests against the interests mitigating in favor of disclosure. 

Proprietary Trade Secrets

Addressing Campaign’s contention that certain documents were  privileged as “trade secrets,” the court said that typically proprietary trade secrets will be shielded from disclosure "except to the extent that [disclosure] appears to be indispensable for ascertainment of the truth." Citing Ashland Management Inc. v Janien, 82 NY2d 395, the court said that “[a] proprietary trade secret is ‘any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it’” and “[a] conclusory statement in an attorney's affidavit that a document contains trade secrets is insufficient to meet the burden required to assert the privilege.”

Attorney-Client Privilege

Campaign also asserted that eight documents sought by JCOPE were protected by the attorney-client privilege. The court ruled that six were not protected because they were disclosed while a third party was present and that Campaign did not demonstrated that the remaining two were predominantly of a legal character.

While the attorney-client privilege prevents confidential communications made between the attorney and the client in the course of professional employment from being disclosed "[t]he party asserting the privilege bears the burden of establishing its entitlement to protection by showing [1] that the communication at issue was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship, [2] that the communication is predominantly of a legal character, [3] that the communication was confidential and [4] that the privilege was not waived." In any event, said the court, such a communication is not confidential if it is "made in the presence of third parties, whose presence is known to the client." 

Attorney Work Product

Campaign claimed that eight documents were exempt from disclosure under the “attorney work product doctrine.”  Noting that the party asserting the doctrine has "the burden of demonstrating that particular items are exempt or immune from disclosure ... the mere assertion that items constitute attorney's work product ... will not suffice," the court said that “[f]our of the documents appear, even from the scant descriptive information provided by Campaign, to fall outside the ambit of the privilege” and “the Court will conduct an in camera** review to determine whether the privilege applies.”

 Common Interest Doctrine

The court ruled that Campaign could not use the common interest doctrine to shield  any of the documents at issue from disclosure, explaining that the common interest doctrine extends attorney-client privilege in the presence of a third party where "attorney-client communications . . . are revealed to one another for the purpose of furthering a common legal interest," but it is limited to "disclosure ... deemed necessary to mount a common claim or defense." 

* Matter of Xerox Corp. v Town of Webster, 65 NY2d 131

** In private.

The decision is posted on the Internet at:

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