103 A.D.2d 609 | N.Y. App. Div. | 1984
OPINION OF THE COURT
The instant matter concerns petitioner’s challenge to a series of subpoenas issued by the Attorney-General of the State of New York in connection with an investigation into whether certain firms and individuals associated with the ready-mix concrete industry in New York City have committed violations of the Donnelly Antitrust Act. (General Business Law, § 340 et seq.) Special Term quashed several demands contained in the subpoenas on the grounds that the subpoenas were overbroad or that the materials sought were privileged from disclosure. This court disagrees.
The Attorney-General, in furtherance of his inquiry, served subpoenas upon 10 corporations, three individuals and a partnership between September 16 and October 28 of 1982. The corporate recipients of these subpoenas were required to produce certain categories of documents and to furnish answers to interrogatories, while only documents were demanded from the individuals and partnership. The parties served subsequently moved to quash the subpoenas on a variety of grounds, and the appeal before us arises out of four unresolved areas of dispute.
Petitioners’ first objection relates to the following instruction which was contained in each subpoena for the production of documents: “c. If any document described below is withheld from production on the ground that all or some part of the contents of such document is privileged and need not be disclosed, include in the written statement filed with the Attorney General a section entitled ‘Documents Withheld Under Claim of Privilege’ and there (1) identify each such document, (2) state its general subject matter, (3) state in detail the basis for each claim of privilege made with respect to it, (4) state whether a similarly-based claim of privilege has previously been made with respect to it in connection with any action or investigation, (5) if the answer to (4) is yes, state what disposition was made of each such claim, and (6) if only part of its contents is claimed to be privileged, state the full text of the non-privileged part or, in lieu thereof, prepare and produce a copy of it from which the part claimed to be privileged has been redacted.”
Of the 14 subpoenas involved herein, 10 were directed to corporations and one to a partnership. The law is clear that these organizations have no Fifth Amendment privilege to assert and must thus designate a suitable representative to make responses. (Bellis v United States, 417 US 85; United States v White, 322 US 694.) While the organizational recipients of the subpoenas might be able to with
The second matter under dispute concerns the Attorney-General’s demand for “other documents” with regard to certain areas of inquiry deemed relevant to the investigation by respondent. Special Term found such requests to
The Attorney-General also asserts that under the circumstances of this investigation, it is both appropriate and necessary for respondent’s subpoenas to cover the time dating back to January 1,1974. Special Term modified the subpoenas to limit them to a period after January 1, 1979. While it is true that the Statute of Limitations contained in the Donnelly Antitrust Act is three years for a criminal prosecution and four years for a civil case (General Business Law, § 340, subd 5; § 341), illegal agreements in restraint of trade often involves continuing conduct rather
Finally, the Attorney-General challenges the striking by Special Term of the interrogatory addressed to the 10 corporate recipients which directs them to: “11. Identify each document described in the section of this Attachment entitled ‘Documents To Be Produced’ that cannot be produced because such document ceased to be in your possession or custody or subject to your control at any time after January 1, 1980.”
Petitioners claim that while the corporations do not possess Fifth Amendment rights, the interrogatory demands self incriminating information from the custodians of the documents, who do have such a privilege. However, as has previously been noted, a corporation may not cloak itself in the Fifth Amendment rights of its employees. If a particular employee cannot answer on behalf of the corporation because of his or her Fifth Amendment rights, then the corporation must produce someone who can respond.
Consequently, the order of the Supreme Court, New York County (Allen Murray Myers, J.), entered on or about September 9, 1983, which granted petitioners’ motion in part, granted respondent’s cross motion in part and modified the subject subpoenas in accordance with the court’s written opinion of June 9,1983, should be modified, on the law, to the extent of amending the resettled subpoenas to include Instruction C, include the request for “other documents”, expand the scope of the subpoenas back to January 1, 1974 and reinstate interrogatory 11 as to the corporate
Murphy, P. J., Ross, Carro and Alexander, JJ., concur.
Order, Supreme Court, New York County, entered on or about September 9, 1983, unanimously modified, on the law, to the extent of amending the resettled subpoenas to include Instruction C, include the request for “other documents”, expand the scope of the subpoenas back to January 1, 1974 and reinstate interrogatory 11 as to the corporate petitioners, and otherwise affirmed, without costs and without disbursements.