Knopf v. Esposito

Background

On January 22, 2021, nonparty witness Melissa Ringel refused to produce certain telephone records requested by the plaintiffs, invoking the Fifth Amendment. The plaintiffs moved on January 28 to compel production.

The subpoena sought bills or invoices from service providers showing calls placed and received on January 8 and January 11 through January 14, 2016, for Ringel’s home telephone and cellphone numbers. It also sought telephone records cited in a February 1, 2018 letter from Ringel’s attorney to the Deputy Inspector General at the New York Unified Court System’s Inspector General’s Office.

Legal standard

The Fifth Amendment protects against being compelled to provide testimony that may incriminate the witness. The privilege generally does not protect the contents of documents voluntarily created before a subpoena. The Supreme Court has nevertheless recognized a limited privilege for the act of producing documents when production itself would communicate an incriminating fact, such as the documents’ existence, the witness’s possession or control of them, or their authenticity.

Under the “foregone conclusion” exception, the act of production is not protected when the requesting party can already establish that the documents exist, are controlled by the witness, and can be authenticated without relying on the witness’s compelled mental effort.

Court’s analysis

The court held that the Fifth Amendment did not protect the telephone records themselves because they were created by a third-party service provider and were not Ringel’s compelled testimony. Ringel also did not explain how producing telephone records created by a service provider for her telephone numbers could incriminate her. The court found that this case more closely resembled a case involving documents whose existence and location were already known than one involving a broad demand requiring the witness to search through and identify numerous documents using her own thoughts.

The court further held that, even if the act-of-production privilege applied, the foregone-conclusion exception would require production. The plaintiffs could confirm that the records existed and authenticate them through the telephone company that created them. Ringel’s ability to receive the records from the telephone company showed that she controlled their receipt.

The court rejected Ringel’s arguments that the records might lead to an investigation into the accuracy of her earlier testimony, that the plaintiffs had not proved she still possessed the records, that the plaintiffs needed to authenticate them through a version already in their possession, and that the plaintiffs had to seek the records from the telephone company first. The court concluded that the first concern related to the contents of the records and Ringel’s prior testimony, not to the act of production; that the exception did not require proof that she had continuously maintained the records; that prior possession by the plaintiffs was unnecessary; and that the exception imposed no requirement to obtain the records from the service provider before subpoenaing Ringel.

Disposition

Judge Denise Cote granted the plaintiffs’ January 28 application. Ringel was ordered to produce to the plaintiffs, by February 8, 2021, the telephone records in her possession or under her control that were responsive to the subpoena.