In re Dr. John DOE, M.D., A Witness Before the January 1982 Additional Grand Jury. Dr. John DOE, M.D., Appellant, v. UNITED STATES of America, Appellee.
No. 1579, Docket 83-6111
United States Court of Appeals, Second Circuit
Argued June 13, 1983. Decided June 29, 1983.
711 F.2d 1187
Here, the district court held that Sweeney failed to satisfy her ultimate burden of persuasion in that she “failed to prove by a preponderance of the evidence that a discriminatory reason more likely motivated the defendant or that the defendant‘s proffered explanation for its failure to offer her a systems analyst position is unworthy of belief.” Appellant makes no argument on this appeal that the district court abused its discretion in ultimately resolving this issue as it did. Rather, appellant‘s arguments аre confined to the issue of whether the employer herein met its burden of articulating with some specificity a non-discriminatory reason for rejecting plaintiff.
We reiterate that under
Our review of the record reveals that the only evidence offered by Sweeney indicating a discriminatory motive was statistical—i.e., that only males had been hired as Systems Analysts during the relevant years herein and that women tended to be in lower paying positions.10 However, statistical evidence alone does not necessarily imply sex discrimination. See Thompson v. Leland Police Department, 633 F.2d 1111, 1114 (5th Cir.1980). Widmer testified that no women outside of the organization applied for the positions in the period from July, 1968 to Deсember, 1972. It appears from the record that rather than being the victim of sex discrimination, Sweeney was caught in the “crossfire” of an intra-organizational dispute. While it is unfortunate for Sweeney that this occurred, the acts here at issue were not violative of Title VII.11
We conclude that the record supports the conclusion of the district court that Sweeney failed to carry her ultimate burden of persuasion. For the reasons set forth above, we affirm the decision of the district court. No costs.
David F. Axelrod, New York City (Peter L. Zimroth, Kostelanetz & Ritholz, New York City, of counsel), for appellant.
Philip Le B. Douglas, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Roanne L. Mann, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before FRIENDLY, KEARSE and CARDAMONE, Circuit Judges.
We are called upon to decide whether a grand jury has the power to subpoena a physician‘s W-2 forms, prescriptiоn forms and patient files despite his claims that the Fifth Amendment and doctor-patient privilege shield these records from production. A grand jury sitting in the Southern District of New York is investigating what it believes to be a sham medical clinic that served as a front for the illegal sale of tens of thousands of “quaaludes” in New York City. The records subpoenaed are those of a psychiatrist allegedly associated with the clinic. The Court is unanimous in its view that the doctor‘s W-2 and prescription forms are subject to the subpoenas duces tecum issued against him and that for his failure to produce them he was properly held in civil contempt. We are divided only on the issue of patient files in the doctor‘s possession.
BACKGROUND
In 1981 the Drug Enforcement Administration (DEA) commenced an investigation of Jorum Associatеs, Inc. and a number of individuals associated with Jorum, including Dr. Doe. Concluding that it had unearthed sufficient evidence of narcotics violations to establish probable cause, the DEA applied for and obtained a warrant in May 1982 to search Jorum‘s East 34th Street premises.
That this assembly-line technique for prescribing drugs had little or nothing to do with the practice of medicine is tellingly revеaled in the affidavit of an undercover DEA agent who came to Jorum and saw Dr. Doe on December 3, 1981 and again two weeks later. On each visit the agent adopted a different identity and name without changing his appearance, drawing no comment from anyone. On both occasions the agent received a prescription from Dr. Doe for 45 quaaludes after paying a $200 fee.
With this sort of evidence before it, the grand jury issued subpoenas duces tecum directing appellant to produce his patient files, financial records and Schedule II prescription forms.1 The issuance of these subpoenas prompted a battle of ex parte filings by Doe and the government seeking in camera review by United States District Judge Stewart. On December 13, 1982, after reviеwing the open and in camera submissions of the parties, the district court concluded that the “required records” exception to the Fifth Amendment overcame appellant‘s objection to compelled production of his Schedule II prescription and W-2 forms and patient files. The trial court later held that no psychotherapist-patient privilege should apply in this case and ordered production of the subpoenaed patient files in their original, unredacted condition. When Dr. Doe declined to comply, he was held in civil contempt and this appeal followed.
DISCUSSION
I
In assessing whether appellant may rely on a Fifth Amendment privilege not to comply with the subpoenas duces tecum, it is first necessary to determine whether the act of prоducing the documents described in the subpoenas would involve compelled, testimonial self-incrimination on Doe‘s part. See Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); In re Katz, 623 F.2d 122, 125-26 (2d Cir.1980). In relevant portion the subpoenas seek
- (1) All patient files relating to persons purportedly treated by [Doe] on the premises of Jorum Associates ... [and its successor entities] ... in the period August 1981—June 1982;
- (2) ... IRS Form[s] W-2, relating to [Doe‘s] compensation by Jorum Associates, Inc. [and its successor entities];
- (3) All Schedule II prescription forms reflecting drugs prescribed by [Doe] at [Jorum‘s and its successors’ premises].
- [(4)] All patient files relating to persons purportedly treated for sleep and stress problems in the period March—June 1982;
- [and (5)] All Schedule II prescription forms reflecting drugs prescribed in the period March—June 1982.
Because Jorum and its successor entities are alleged by the government not to bе sleep
Moreover, since items 1 and 4 consist of an inordinate number of files considering the time periods involved (as the government suggests), simply turning over these files could constitute incriminating testimony by Doe that he “treated” this unrealistic number of patients during the specified periods. Similarly, since the subpoenas call upon Doe to surrender what may be an inappropriately large number of forms reflecting his prescriptions of controlled substances during limited time periods (see items 3 and 5), the mere act of compelling Doe to produce these documents could be compelling him to be a witness against himself. Thus, the act of complying with these subpoenas could require appellant‘s compelled, testimonial self-incrimination and may therefore give rise to a Fifth Amendment privilege not to comply.
II
Having decided that the mere act of surrendering these documents to the government may be testimonial in nature, we turn to the issue of whether their production is mandated by the so-called “required records” exception to the Fifth Amendment. See Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). Under this exception, a person whose records are required to be kept by law has nо Fifth Amendment protection against self-incrimination when these records are directed to be produced. This rule applies regardless of whether the records are kept pursuant to federal or state law. See id. at 17-18 & n. 25, 68 S.Ct. at 1384 & n. 25. To constitute “required records” the documents must satisfy a three-part test: (1) the requirement that they be kept must be essentially regulatory, (2) the records must be of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed “public aspects” which render them analogous to public documents. See Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968).
We have little difficulty applying the required records exception to the W-2 and Schedule II prescription forms. With respect to the W-2s, a wage earner filing a federal income tax return must attach a W-2 in order for the return to be complete. This requirement, found on the face of the tax form, has the force of law, see
As for the Schedule II prescriptions, New York law requires practitioners2 to prepare “official New York State prescriptions” for all Schedule II drugs and retain copies for five years. See
The more troublesome issue concerns the patient files in Dr. Doe‘s possession. The New York Board of Regents (Regents) is charged with regulating the medical profession. See
Although what is needed to show public aspect is somewhat clouded, see The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 201 (1968), we harbor no doubt that it is satisfied here. As defined by the Regents, unprofessional conduct includes the failure of a health practitioner, upon written request by the patient, to make available a patient file to the patient or another licensed health practitioner. 8 N.Y.C.R.R. 29.2(a)(6) (1981). Standing alone, this reference gives us little confidence that the patient files exhibit some public aspect, inasmuch as it is the patient alone who may trigger the release of the information. To this reference must be added the provisions of
We agree with our respected colleague Judge Friendly‘s view that even Shapiro recognizes constitutional limits on the government‘s power to compel record keeping which might circumvent the privilege contained in the Fifth Amendment. In this case we think, however, that there is a strong correlation between the purpose of the New York law which requires that patient files be kept and that for which their production is sought here. The purpose of New York‘s regulation is to investigate licensed physicians suspected of medical misconduct, Schachter v. Whalen, 581 F.2d 35, 37 (2d Cir.1978) (per curiam), which certainly encompasses improperly prescribing controlled substances, see 8 N.Y.C.R.R. § 29.2(a)(8) (1981) (“ordering of excessive treatment ... not warranted by the condition of the patient” constitutes unprofessional conduct). The conduct for which Dr. Doe is being investigated by federal authorities is precisely that conduct proscribed by the New York State law here applicable.
Doe argues that even if the subpoenaed documents are required records, Fisher nevertheless shields them from production. We note that the required records doctrine is an exception to the Fifth Amendment privilege. As such, it necessarily overrides the privilege in instances in which the privilege would otherwise apply. See In re Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 336 n. 15 (3d Cir.1982), cert. granted on other issues, 461 U.S. 913, 103 S.Ct. 1890, 77 L.Ed.2d 281 (1983); In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir.1979). Fisher was not concerned with required records and nothing in
III
Appellant next contends that he need not surrender his patient files because to do so would violate his patients’ psychotherapist-patient privilege. Proposed Federal Rule of Evidence 504(b) would have created a psychotherapist-patient privilege in the federal courts, but Congress declined to adopt it. Instead,
We are asked to recognize the privilege but decline to do so in this case for several reasons. To begin, Professor Wigmore has set forth four conditions necessary to the establishment of a privilege against the disclosure of communications. They are: (1) the communication must be one made in the belief that it will not be disclosed; (2) confidentiality must be essential to the maintenance of the relationship between the parties; (3) the relationship should be one that society considers worthy of being fostered; and (4) the injury to the relationship incurred by disclosure must be greater than the benefit gained in the correct disposal of litigation. 8 J. Wigmore, Evidence § 2285, at 527 (McNaughton rev. 1961). Arguably these conditions could obtain in a true psychotherapist-patient relationship. See Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 184-99 (1960). But the relationship in this case does not meet all four conditions. Presumably those visiting the Jorum clinic wanted the fact and purpose of their visit kept in confidence, but there was hardly any relationship of trust since it appears that Dr. Doe did not even recognize his “patient” of two weeks earlier. The 70 patient per day assembly-line technique involving only a brief interview is scarcely a psychiatrically nurturing event for a patient, much less one worth fostering.
Wigmore‘s fourth condition recognizes the balancing which must be done when an asserted privilege contravenes a principle fundamental to the fair administration оf justice—that the public has a right to everyone‘s evidence. Testimonial privileges are permitted only to the very limited extent that excluding relevant evidence “‘has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.‘” Trammel v. United States, 445 U.S. at 50, 100 S.Ct. at 912 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). Here the exclusion of Doe‘s patient files would not serve a public good that transcends the need for this evidence in the search for truth. As the court below noted following in camera examination of a sampling of patient files, there are no communications in these files of the intensely personal nature that the psychotherapist-pa-
IV
Finally, Doe contends that it was error for the district court to read in camera ex parte submissions from the government. In an order dated May 13, 1983 the district court specifically noted that while it had considered these submissions for background information, it did not rely on them and the information they provided was not necessary for its decisions. Upon review of the record, we are satisfied that the district court could have reached the same result without resort to the in camera submissions. In any event, this Court has recently approved the use of in camera submissions by the government in situations where an “ongoing interest in grand jury secrecy” is at stake. In re John Doe Corp., 675 F.2d 482, 490 (2d Cir.1982); see In the Matter of a Grand Jury Subpoena directed to Marc Rich & Co., A.G., 707 F.2d 663 at 670 (2d Cir. 1983). We note further that, save only for the names of potential witnesses, the government made extensive and detailed disclosure to appellant of the underlying facts. The information provided was sufficiently ample to allow him a full and fair opportunity to be heard, see In re John Doe Corp., 675 F.2d at 489-90.
For the above reasons the order holding Dr. Doe in civil contempt is affirmed. The mandate of the court shall issue forthwith.
FRIENDLY, Circuit Judge, concurring in part and dissenting in part:
I join in upholding the subpoenas compelling disclosure of the Schedule II forms showing drugs prescribed by Dr. Doe at the two locations mentioned and the IRS W-2 forms relating to his compеnsation from three named corporations. The prescription forms, one copy of which finds its way to the New York State Department of Health,
One of the subpoenas required Dr. Doe to produce all patient files relating to persons purportedly treated by him at three locations between August 1981 and June 1982; another required him to produce all patient files relating to persons purportedly treated for sleep and stress problems between March and June 1982. A sample of such a file submitted in camera by Dr. Doe contains five parts—a ten-page Confidential Personal Medical History and a five-page Sleep Disorder Study, both filled in by the patient; a record of physical examination; a “Structured Interviеw Form for Sleep Disorder” filled in by someone on Dr. Doe‘s behalf; and a single page filled in mainly by Dr. Doe which records his diagnosis and prescription. My focus will be on the two latter portions, and I will refer to them for convenience as the patient files.4
None of these decisions, however, denies that an individual‘s own papers in his own possession are within the constitutional privilege, even though they relate to business rather than “personal” matters. Such was the Fifth Amendment ruling in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), which dealt with business records, indeed as Justice Frankfurter demonstrated in his dissent in Shapiro v. United States, 335 U.S. 1, 67-68 & n. 19, 68 S.Ct. 1375, 1408-09 & n. 19, 92 L.Ed. 1787 (1948), “required records“. Even though “[s]everal of Boyd‘s express or implicit declarations have not stood the test of time“, see Fisher v. United States, supra, 425 U.S. at 407, 96 S.Ct. at 1579, and under Bellis “the precise claim sustained in Boyd would now be rejected for reasons not there considered“, 425 U.S. at 408, 96 S.Ct. at 1579, namely, their status as partnership records, see note 1 supra, the holding with respect to an individual‘s business records, perhaps most clearly put in Justice Miller‘s concurring opinion, 116 U.S. at 639, 6 S.Ct. at 537, remains intact. Justice Hughes made clear in Wilson v. United States, supra, 221 U.S. at 378-79, 31 S.Ct. at 543, that a quite different result would have been reached if the subpoena had demanded Wilson‘s private papers. In White the Court again took note that “[n]o valid claim was made that any part of them [the subpoenaed documents] constituted his own private papers“, 322 U.S. at 704, 64 S.Ct. at 1253. Bellis emphasized that, small as the partnership was, petitioner was holding the records in a “representative capacity” and it was on that account that “his personal privilege against compulsory self-incrimination is inapplicable.” 417 U.S. at 101, 94 S.Ct. at
The required records exception, established by an opinion, Shapiro v. United States, supra, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, joined by five Justices with four in dissent, has been problematic from the outset. Justice Frankfurter protested that “[i]f records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses“, 335 U.S. at 51, 68 S.Ct. at 1401, and that “[i]f Congress by the easy device of requiring a man to keep the private papers he has customarily kept can render such papers ‘public’ and non-privileged, there is little left to either the right of privacy or the constitutional privilege“, id. at 70, 68 S.Ct. at 1410. Justice Jackson, joined by Justice Murphy, also thought that “[t]he protection against compulsory self-incrimination, guaranteed by the Fifth Amendment, is nullified to whatever extent this Court holds that Congress may require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him.” 335 U.S. at 70, 68 S.Ct. at 1410.3 Thirty-five years after its pronouncement, the contours of the exception remain largely undefined. In Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), where the New York Court of Appeals had disbarred an attorney for refusing to produce required records on the ground of self-incrimination, the Supreme Court was asked to overrule Shapiro. It reversed without finding it necessary to reach that question, 385 U.S. at 517-18, 87 S.Ct. at 629 (plurality opinion).4 Marchetti v. United States, 390 U.S. 39, 56-57, 88 S.Ct. 697, 706-07, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968), held that Shapiro did not validate a requirement of registration before engaging in the business of accepting wagers or of monthly filing of information with respеct to wagering activities. Justice Harlan wrote in Grosso, 390 U.S. at 68, 88 S.Ct. at 713:
The criticisms of the required records exception suggest caution against its expansion. As has been said, Mansfield, supra, 1966 Sup.Ct.Rev. at 148-49:
The notion that because a disclosure is required the privilege does not apply, if extended to its full logical reach, is capable of entirely destroying the privilege. Certainly this is truе with respect to records. Here the third element of the Grosso definition is principally in question. Patients’ files would seem, almost by description, to be the antithesis of a record with “public aspects.” They typically contain intimate details with respect to physical or psychological ailments, diagnoses, and treatments which patients are reticent in revealing and the secrecy of which physicians are sworn to protect. They are contended nevertheless to have “public aspects” because they must be disclosed on demand of the patient or when required for reimbursement of the patient by a third party, 8 N.Y.C.R.R. § 29.2(a)(6) (1981), and are subject to compulsory production by subpoena to the State Board for Professional Medical Conduct, when aсting within its authorized scope of authority to investigate professional misconduct, subject to requirements of confidentiality and anonymity for the patient.
To hold that this particularized lifting of privacy directed by New York5 makes the files subject to compulsory production on behest of the United States in a grand jury investigation of violation of the narcotics laws would expand the public records exception considerably beyond the facts of Shapiro. There Congress had directed that the records be kept for the very purpose of providing information concerning compliance with wartime price control statutes and regulations which the Government charged the defendants with violating. As in Wilson v. United States, supra, 221 U.S. at 382, 31 S.Ct. at 545, obedience to the subpoena was compelled because “the books and papers [were] held subject to examination by the demanding authority” (emphasis supplied). Here New York‘s record keeping provisions were for the benefit of patients and professional licensing authorities,6 not for that of the United States in enforcing the federal narcotics laws. The unusual nature of a doctrine permitting the legislature to create a class of private records not enjoying the constitutional privilege demands at least that there be some significant correlation between the purpose
It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgivings that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.
Professor Mansfield has written, supra, 1966 Sup.Ct.Rev. at 149:
The fact that the legislature has required that records be kept, however, or has authorized an administrative agency to require it, at least constitutes an authoritative expression of the importance of the governmental interest involved and the necessity of self-reporting to protect that interest.
Here Congress has made no determination that enforcement of the narcotics laws requires doctors to maintain patients’ files and produce them before grand juries, and New York has opened such files only for two purposes unrelated to what the Government seeks here. To say that, because of these two New York provisions, the portions of the patient files which were made up by the doctor are being held by him merely as a custodian for the patient or the licensing board is to substitute fiction for reality.7
Decisions of this court applying the required records exception do not assist the Government. The lawyer‘s rеcords in United States v. Silverman, 449 F.2d 1341, 1345-46 (2 Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972), were not merely required records but public records, i.e., records filed with a public body. Moreover they were obtained not by a subpoena from the defendant but with the assent of the holder of the records, the Appellate Division, First Department, so that under Couch v. United States the lawyer had no privilege at all. In United States v. Warren, 453 F.2d 738, 742 (2 Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972), the records were required by a federal statute having the purpose of regulating the very conduct with which Dr. Warren was charged.8 This also was the situation in United States v. Kaufman, 429 F.2d 240, 247 (2 Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970), and
The purposes for which New York required Dr. Doe to maintain patient files were too remote from the subject of the Government‘s investigation to justify abrogation of what would otherwise have been his constitutional privilege against compelled production of his own papers over his claim of self-incrimination. The subpoenas should have been modified accordingly.