Opinion
114858/06.
Decided April 12, 2011.
On April 22, 2008, Defendants, New York Post ("NYP"), filed a motion seeking an order compelling the plaintiff, Francois Rivera ("Rivera"), to: 1) attend a deposition and answer questions related to the Judicial Commission investigation, his grand jury testimony which relate to the contents of the Articles at issue here and to his alleged arrest record which relates directly to his reputations; and 2) to respond to Interrogatories and document requests related to those issues. Rivera cross moved for Partial Summary Judgment on the grounds that the Articles at issue were "false and defamatory" and "of and concerning him." Rivera further cross moved to Amend his Complaint. The motions are under sequence numbers five through nine and are all decided in accordance with this single decision which addresses all the motions and the issues raised therein.
Specifically, what the motions boil down to is the defendants' attempt to compel Plaintiff to: (1) attend a deposition and answer certain areas of inquiry; (2) respond to interrogatory 35, 36 and 42; and (3) produce documents responsive to Document request Number 22; and the seeking of documents and testimony from particular individuals and entities allegedly related to the defense of this action.
Interrogatory number 35 reads: "For each organization listed below, state whether You have been questioned by it regarding the issue of whether Justices of the New York State Supreme Court have paid for their seats on the bench and/or paid or received bribes.
a.the New York State Commission on Judicial Conduct.
b.the Grievance Committee of the 1st Appellate Division of the New York State Unified Court System,
c.the Grievance Committee of the 2nd Appellate Division of the New York State Unified Court System,
d.any other legal organization which has questioned You."
Interrogatory number 36 reads: "State whether You have appeared before a grand jury to provide any testimony of any kind at any time. For each such testimony, describe the nature of the questioning."
Interrogatory number 42 reads: "State whether You have ever been arrested by law enforcement authorities, for any violation or offense. For each such arrest, state the following:
a.the specific violation or offense for which You were arrested,
b.the disposition of the matter,
c.the date and place of the arrest, and,
d.the date, court, and place of any conviction."
Document request number 22 reads: "All documents related to communications between plaintiff and New York State Commission on Judicial Conduct regarding the issue of Judges paying for their seats on the bench, Norman, the Brooklyn Democratic Party, Hinch, Haberman, Ruchelsman, Ruditzky, Hurkin-Torres, Garson, LaFontaine, Friends of Francois Rivera, Juniors, and/or the Articles."
On December 15, 2008, this Court issued a short form order denying the Motion to Compel, denying the cross motion for partial summary judgment and granting the cross motion to amend. NYP appealed the order as it pertained to the Motion to Compel. The Appellate Division, First Department, reversed that part of the December 15, 2008 order denying the Motion to Compel on the law and facts and granted the Motion to Compel the disclosure sought.
Currently, there are five (5) motions and one (1) cross motion before this Court. Rivera, the New York State Commission on Judicial Conduct ("CJC"), non parties Unified Court System ("UCS") and judicial and non judicial personnel-Office of Court administration ("OCA"), Vito Lopez, and Martin Dilan all move this Court by and through separate Motions to Quash the Subpoenas served upon them by NYP. In turn, NYP opposes each motion and cross moves to Compel Disclosure.
This matter involves a lawsuit by Plaintiff alleging defamation in that he was damaged by the publication of four articles by the defendant. The articles reported on the prosecution of Clarence Norman ("Norman') and the possibility of the District Attorney of Kings County ("D.A.") recommending a lighter sentence in exchange for Norman's agreement to provide information on the allegations that several judges had attempted to "buy" a seat in Kings County. As part of the coverage, the articles reported that Plaintiff had paid a $50,000.00 bribe for his judgeship in the 1990's; was being investigated by the District Attorney's office; and had received partial immunity from the D.A. in exchange for Grand Jury testimony about other Brooklyn judges. The articles further reported allegations that Plaintiff had lied about his residency to facilitate his election and the Commission on Judicial Conduct was investigating the false residency allegations.
The elements of a defamation action are a published false statement about the plaintiff that is defamatory of the plaintiff causing damage to the plaintiff and same was uttered with the requisite level of fault, i.e., with constitutional malice or gross irresponsibility. Dillon v. City of New York, 261 AD2d 34. The primary defense to this action is truth.
The subpoenas are directed at specific individuals who can allegedly help the Defendants demonstrate the alleged truth in this matter. Specifically, the parties agree the subpoenas fall into three groups; 1). Testimony from non-parties (movants in some of the motions) about their personal, subjective opinions of Justice Rivera (reputation testimony); 2). Testimony concerning personal conversations that they may have had with Justice Rivera; and 3). From Chief Administrative Judge Anne Pfau, ("Hon. Pfau") whether she considered the New York Post articles in making appointments to the Appellate Term and/or as Acting Administrative Judge of the Kings County Supreme Court. More specifically, the subpoenas arise as a result of the Plaintiff's deposition and in light of the Appellate Division First Department's June 9, 2009 decision reversing this court and expanding the discovery parameters in a defamation action.
"The defendants deposed the plaintiff on February 24 and 25, 2009. At said depositions, Rivera identified Hon. Ariel Belen, Hon. Ann Pfau, Hon. David Schmidt, Hon. Michael Pesce, Hon. Abraham G. Gerges, Hon. Arthur M. Schack, Hon. Yvonne Lewis, Hon. Leon Ruchelsman, Michelle Lemonds and Major Luz Bryan as possessing information about his reputation in the judicial community and his prospects for advancement in the judicial system. Specifically, in his deposition:
1.Rivera identified Judge Pfau, the Chief Administrative Judge of the Courts of the State of New York, as the individual responsible for deciding who would replace Justice Belen on the Appellate Term, Second Department and as Administrative Judge. . . . Accordingly, Defendants must take some discovery from Judge Pfau in order to determine why she decided not to promote Rivera to his desired positions and whether the publication of the Articles played any role in her decision.
2.Rivera testified that Justice Belen is the person whom he sought to replace on the Appellate term, Second Department and as Administrative Judge on the Civil Term of the Supreme Court of Kings County. Because Justice Belen held the positions that Rivera sought, he is likely to have information as to why Rivera was not appointed to replace him. Rivera also testified that Justice Belen is a friend that he has known since they went to law school together, and they have worked closely together since then, even serving on judicial committees together and attending social events together. Therefore, Justice Belen will have relevant information about Rivera's reputation. Rivera also testified that Justice Belen became judge in the same way as Rivera and that Justice Belen has information about the D.A.'s investigation into Brooklyn judges.. . . . The process of obtaining a judgeship in Brooklyn is at the very heart of the Articles and Rivera has specifically named Justice Belen as someone with insight into that process.
3.Rivera testified that Justice Schmidt told Rivera that he did not get interviews for a position on the Appellate term because Rivera "was damaged by the Post article." Defendant must be permitted to explore the reason Justice Schmidt made the comment, as it speaks directly to the damages that Rivera claims to have sustained.
4.Rivera also testified that "Justice Pesce had been administrative judge and Justice Pesce once was an administrative judge to the presiding judge of the Appellate Term" and was therefore "quite familiar with the appointment process" and would not simply be speculating as to why Rivera was not advanced . . . As such, Justice Pesce can provide insight into the damages Rivera claims to have suffered. Moreover, Rivera testified that Justice Pesce is his boss' who continually thanked Rivera for all his hard work and selected Rivera for special assignments. Justice Pesce will thus have information about Rivera's reputation both before and after the publication of the Articles.
5.Rivera testified that Justice Gerges talked to him about the Articles and this lawsuit. Further, Justice Gerges is the current Administrative Judge of the Civil Term of the Supreme Court of Kings County, one of the positions that Rivera sought and claims was denied to him because of the Articles. Justice Gerges will therefore have relevant information about the effect of the Articles on Rivera's reputation and the appointment process for that position.
6.Rivera testified that Justice Schack served on a foreclosure committee with him.. . . . Justice Schack will therefore have relevant information about Rivera's reputation.
7.Rivera testified that Justice Lewis spoke to him about this lawsuit. She can therefore testify about that conversation and about Rivera's reputation and claim for damages.
8.Rivera testified that he believed that Justice Ruchelsman believed that the allegations in the Articles about Rivera were true... . . . Defendants are thus entitled to disclosure from Justice Ruchelsman regarding whether in fact Justice Ruchelsman actually believed that the articles were true, and if so, the effect of that belief on Rivera's reputation. Rivera's deposition testimony also points to Justice Ruchelsman as an individual possessing information vital to the defense of this action. Rivera testified that Justice Ruchelsman believed that the allegations in the Articles about Rivera were true, and that Justice Ruchelsman, like Rivera, was also investigated by the D.A. Justice Ruchelsman can therefore, provide disclosure regarding the truth of the Articles' discussion of the D.A.'s investigation into Brooklyn judges.
9. . . . . .Rivera testified that Michelle Lemonds, his Secretary, told him that the Post was trying to reach him for comment for the Articles. And that the statement in the Thursday, October 20, 2005 Article that "Rivera did not return phone calls to his chambers. An assistant there told the Post, if he wants to talk to you he'll call you.' was consistent with his memory of his conversation with Lemonds and his instructions to Lemonds. Further, Rivera testified that he spoke to Lemonds about this lawsuit. . . . . ." Affidavit of Katherine M. Bolger in Support of NYP's Cross-Motion To Compel, pp. 4-9.
10.It is apparent parties were unable to agree on the language of the subpoenas to satisfy all parties. A proposal was made wherein the defendants would only inquire into the Witnesses' personal conversations with Rivera and Rivera's reputation in the judicial community. Furthermore, the proposal limited, with the exception of Hon. Pfau, the inquiry to the witnesses' judicial or official roles. The inquiry of Hon. Pfau would be limited to her thought process and the role the Articles played in her decision not to appoint Rivera to the Appellate Term, Second Department and as an Administrative Judge on the Civil Term of the Supreme Court of Kings County. Said proposal was never entered into by the parties and as a result the defendants seek compel the following documents and testimony:
A.Justices Schmidt, Pesce, Schack, Lewis and Ruchelsman and Bryan and Lemonds in their personal (rather than public) capacities about the truth of the Articles and/or Rivera's reputation before and after the publication of the Articles and any damage the Articles caused thereto;
B.Judge Pfau about whether the publication of the Articles played any role in her decision not to appoint Rivera to the Appellate Term, Second Department and as an Administrative Judge;
C.Justice Belen about the D.A.'s investigation into Brooklyn judges, the judicial appointment process, Rivera's reputation and information about how Rivera became a Judge.
D.Justice Gerges about the effect of the Articles on Rivera's reputation and the judicial appointment process." Affidavit of Katherine M. Bolger in Support of NYP's Cross-Motion To Compel, pp. 4-9.
11."Rivera testified that Richard LaFontaine was his campaign manager in 1996, and that while he had no idea what a campaign manager did,' LaFontaine was willing to do it for [Rivera]. . . . . . . apparently the judge that he did it for got elected.' LaFontaine can therefore provide information about the background of Rivera's campaign for judgeship and truth of the Articles' allegations that plaintiff paid a $50,000.00 bribe.
12.Rivera testified that Steven Cohn was a District Leader who was present when Rivera was nominated for his judgeship and that Rivera met him when he was campaigning for that position. . . . .Cohn will thus be able to provide insight as to what he knows about Rivera and how Rivera got the nomination.
13.Jerry Schmetter is the Director of Public Information Kings County District Attorney's Office. Thus, he will be able to provide information relevant to the truth of whether Rivera was being investigated by the D.A.'s office, and whether he received partial immunity in exchange for grand Jury Testimony.
14.Rivera testified that while he was seeking his judgeship in 1996, Martin Malave Dilan was his "biggest supporter" and his "champion.". . . . Dilan can therefore provide information about Rivera's reputation and the truth of the Articles' allegations that plaintiff paid a $50,000.00 bribe.
15.Gilberto Gonzalez is the superintendent at 862 Union Street, Brooklyn, New York, where Rivera purported to live during his campaign for judgeship in 1996. . . . . He can therefore provide information regarding the truth of the Articles' allegations that Rivera had lied about his residency in order to get elected.
16.Jeffrey Feldman, the former Executive Director of the Brooklyn Democratic Party, agreed to testify for prosecutors in Clarence Norman's trial for strong-arming judicial candidates into paying certain vendors. . . . . Thus Feldman will be able to provide information about Brooklyn politics and who would have received Rivera's alleged $50,000.00 bribe.
17.Justice Howard Ruditsky was appointed to the Kings County Supreme Court by Clarence Norman, and testified before a grand jury that he was forced to pay as much as $70,000.00 for his judgeship. . . . .Justice Ruditsky will be able to provide information about Brooklyn politics and who would have received Rivera's alleged $50,000.00 bribe.
18.Rivera testified that he met Carl Andrews when he was campaigning for his judgeship. . . . . Andrews will thus be able to provide insight as to what he knows about Rivera and how Rivera got the nomination.
19.Paul Siminovsky was one of the "central figures" in the bribery scheme involving former Justice Gerald Garson. . . . He can therefore provide background information on bribery within the Brooklyn political system.
20.Rivera confirmed that the fundraiser held at Junior's Restaurant that was referenced in the Articles did, in fact, occur. . . . .Thus, a representative from Junior's can provide information about that fundraiser, including the names of people who attended and could have heard Rivera say that he had "to pay back the $50,000.00 it cost [him] to get the judgeship."
21.Judge Margarita Lopez Torres was elected in 2005 without the support of the Brooklyn Democratic Party and took her challenge to the Brooklyn political system all the way to the United States Supreme Court. . . . .Lopez Torres is intimately familiar with the workings of the Brooklyn political system, and can provide defendants with information about that system and who would have received Rivera's alleged $50,000.00 bribe.
22.Rivera testified that Assemblyman Darryl Towns, when he was campaigning for his judgeship, was present at Junior's fundraiser referenced in the Articles. . . . Towns can therefore provide information about the truth of the Articles' allegations that plaintiff paid a $50,000.00 bribe.
23.Rivera testified that he met with Democratic Party District Leader DeCosta Headley when he was campaigning for his judgeship. Headley will thus be able to provide insight as to what he knows about Rivera and how Rivera got the nomination.
24.Ernest Lender, of Branford Communications, testified against Clarence Norman in Norman's trial, and campaign finance records showed that "Mr. Lendler's company, Branford Communications, received millions of dollars in payments over the years from candidates across the city.". . . . Lendler and/or Branford will therefore have information about whether anyone in the Brooklyn Democratic Party forced Rivera to use Branford's services, which goes to the truth of the allegations in the Articles.
25.Jack Elefant, a salesman for MT Packaging, testified in Norman's trial about money used for campaign materials made by MT. . . . . .Elefant and/or MT can testify as to whether Rivera was ever forced to use MT's services, which goes to the truth of the allegations in the Articles.
26.Ralph Bombardiere, Executive Director of the New York State Association of Service Stations and Repair Shops, testified in Clarence Norman's trial that Norman asked him to take care of various campaign expenses. . . . Thus, Bombardiere and/or the Association can testify as to the individuals and/or organizations that received campaign expense money, which will provide information as to who would have received Rivera's alleged $50,000.00 bribe.
27.Alan Fleishman was identified in the New York Times as a Democratic District Leader from Park Slope who commented on the lack of independence in the judicial nomination system. . . . Thus he will be able to provide information about that system and who would have received Rivera's alleged $50,000.00 bribe.
28.Scott Levenson was a consultant for Karen Yellen, the judicial candidate who testified in Clarence Norman's trial that she was forced to hire particular vendors in exchange for support from the Democratic Party. . . . .Thus, he will be able to provide information on the workings of the Brooklyn political system, and who would have received Rivera's alleged $50,000.00 bribe.
29.Victor Barron was a former Supreme Court Justice who was convicted of taking bribes. . . . . .Barron will be able to provide information about bribery in judicial system, which goes to the truth of the allegations in the Articles." Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for a Protective Order, pp 14-17.
The NYP has served subpoenas on all of the aforementioned persons and businesses. All the subpoenas requested the following documents to be produced:
"1.Any and all letters, memoranda, e-mails, and any other written communication between you and Rivera.
2.Any and all letters, memoranda, notes, e-mails, and any other documents in Your possession referring to Rivera.
3.Any and all documents in Your possession relating to the Articles.
4.Any and all letters, memoranda, notes, e-mails, and any other documents relating to any communications between You and any newspaper or magazine reporter.
5.Any and all letters, memoranda, e-mails, and any other written communications between You and Hinch and/or Haberman and/or any other Post reporter.
6.Any and all letters, memoranda, e-mails, and any other written communication You had with anyone regarding any vendors, business people, consultants, or businesses who were recommended by the Brooklyn Democratic Party and/or Norman. Such vendors, business people, consultants, or businesses may include, but are not limited to, Ralph Bombardiere, William H. Boone III, Branford Communications Inc., Jack Elefant, Ernest Lendler, the New York State Association of Service Stations and Repair Shops, Inc., and MT Packaging Inc.
7.Any and all contracts or agreements You had with Rivera.
8.Any and all documents relating to solicitations by Rivera and/or Friends of Francois Rivera or others for support for Rivera's judicial candidacy in 1995 and 1996.
9.Any and all documents relating to fundraisers held by Rivera and/or Friends of Francois Rivera, including any fundraisers at Junior's."
First and foremost, the non-party subpoenas are deficient on their face but the defendants' cross-motion to amend same Nunc pro Tunc is granted and the subpoenas' facial deficiencies are hereby deemed cured except as to that subpoena served upon the Brooklyn District Attorney's office which shall be discussed in greater detail in another section of this decision.
The June 9, 2009 Appellate Division decision in this matter reversed this court and held "that full disclosure is required of all matter material and necessary' to the defense of an action (CPLR 3101[a]), and the words material and necessary' are to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy.' ( Allen v. Crowell-Collier Publ. Co., 21 NY2d 403)." The court further stated the "Defendants are entitled to the discovery they seek in their efforts to establish their defense to plaintiff's defamation claims (see Wright v. Snow, 175 AD2d 451 lv dismissed 79 NY2d 822), and to defend against plaintiff's assertion of damage to his reputation ( cf. Burdick v. Shearson Am. Express, 160 AD2d 642, lv denied 76 NY2d 706)." The Court then extended the ruling to hold that "defendants are entitled to the opportunity to demonstrate the truth of the articles as a whole (See Miller v. Journal News, 211 AD2d 626, 627), warranting disclosure even as to assertions in those articles that are not directly challenged in plaintiff's complaint."
Appellate Division First Department then concluded its decision by stating "Therefore, the inquiries related to grand jury testimony by plaintiff, information sought from or provided by plaintiff to the Commission on Judicial Conduct, and plaintiff's arrest record, if any, seek information sufficiently material and relevant to the defense of the action to warrant disclosure."
The defendants' sought discovery will be addressed in three facets for the purpose of clarity and to allow this court to properly address the unique issues presented in this matter. The discovery sought is Plaintiff's Grand Jury testimony from a proceeding in Kings County. Second, the records from the Commission on Judicial Conduct involving Plaintiff and Plaintiff's alleged arrest record, if any. Third, a deposition of specific judges including Hon. PFau.
Two aspects of the Appellate Division's decision when coupled, have led the defendants to serve a subpoena duces tecum upon the Kings County District Attorney's office. One, the ruling that inquiries related to the Grand Jury testimony by plaintiff were deemed sufficiently material to the defense of the action to warrant disclosure. And two, the branch of the ruling that entitles the defendants the opportunity to demonstrate the truth of the Articles as a whole whether or not said issues are controverted or not. Peering through the facade of specificity encompassed in the subpoenas duces tecum, defendants seek no less than the District Attorney's entire file and all information contained therein related to the allegations of judicial misconduct as well as any information concerning the election of judges.
The subpoena correctly complies with CPLR § 3101(b), privileged matter, in that paragraph Five states "if any document covered by this request is withheld by a claim of privilege, a list is to be furnished identifying the document together with the following information: (1) the date of the document; (2) the name of its author, authors, or preparers identified by title and employment; (3) the name of each person who was sent or furnished with the document, or in any way received or viewed the document, or had custody of the document, together with an identification of each such person by title and employment; (4) a brief description of the document, including the type of document and its general subject matter; (5) a statement of the basis for the claim or privilege or assertion that is otherwise immune or protected from discovery in sufficient detail so as to permit the Court to adjudicate the validity of the claim or assertion; and (6) the paragraph of this request to which the document relates. In the case of any document relating in any way to a meeting or any other conversation, all those present (whether or not they were participants) in the meeting are to be identified," Subsection Six of the aforementioned can rationally be interpreted under the Appellate Division's ruling to mean that any conversation, any documents or any meeting related to the Articles, whether it relates to a subject of the allegations contained in the complaint, controverted or not, can be discoverable. Following this interpretation, it seems the disclosure of Grand Jury testimony and/or minutes would be required by not only Rivera but ultimately by the District Attorney.
Grand Jury testimony has long been held to be confidential. The Court of Appeals stated "the reasons for this venerable and important policy include preserving the reputations of those being investigated by and appearing before a Grand Jury, safeguarding the independence of the grand Jury and preventing the flight of the accused and encouraging free disclosure of information by witnesses. People v. Fetcho, 91 NY2d at 769, 676 N.Y.S.2d 106; see also Melendez v. City of New York, 109 AD2d 13. A motion to disclose Grand Jury testimony rests on the sound discretion of the court and should be decided upon a balancing of the public interest in disclosure against the secrecy inherent and guaranteed within the framework of our Grand Jury system. "A strong presumption of confidentiality' applies to Grand Jury proceedings." ( Ruggiero v. Fahey, 103 AD2d 65, 70, 478 N.Y.S.2d 337; CPL 190.25[4]). Nevertheless, the rule of secrecy is not absolute and, in the discretion of the trial court, disclosure may be directed when, after a balancing of a public interest in disclosure against the rule of secrecy, the former outweighs the latter. ( People v. DiNaPoli, 27 NY2d 229, 235, 316 N.Y.S.2d 622.) But since disclosure is the exception rather than the rule,' one seeking disclosure must first demonstrate a compelling and particularized need for access. ( Pitler, N.Y.Crim.Prac. Under CPL § 5.7 at 236). Roberson v. City of New York, 163 AD2d 291. "However, just any demonstration will not suffice. For it, and the countervailing policy ground it reflects, must be strong enough to overcome the presumption of confidentiality. In short, without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance." Roberson, supra, citing Matter of District Attorney of Suffolk County, 58 NY2d 436, 444, 461 N.Y.S.2d 773.
To reach the issue of proper exercise of discretion, the Appellate Division first had to rule the defendants had met the requisite initial showing of a compelling and particularized need for access to Grand Jury minutes. People v DiNaPoli, 27 NY2d 229; Matter of FOJP Svc Corp, 119 Misc 2d 287. The decision may turn on who the applicant is, what he seeks and the purpose for which he seeks it. Jones v. State of New York, 79 AD2d 273, 436 N.Y.S.2d 489. This court originally only addressed the lack of compelling and particularized need for the discovery sought. Since the Appellate Division based their decision on an improvident exercise of discretion, one can only conclude that the Court implicitly ruled the defendants had demonstrated a compelling and particularized need for the unsealing of the Grand Jury testimony. The courts have consistently disclosed Grand Jury minutes only in the context of public litigation, which is best defined as a case involving a public interest. Disclosure of Grand Jury minutes for private litigation has been almost uniformly denied to private litigants. Martinez v. CPC International, Inc., 88 AS.D.2d 656, 450 N.Y.S.2d 528; Jones, supra. While the alleged actions by Plaintiff cited in the defendants' Articles are of public interest, as the election of state officials surely are, this action solely involves alleged defamation. Defamation is a private cause of action seeking solely to compensate plaintiff for alleged damages to his own reputation. No public right or interest is at issue in the underlying cause of action. As such, disclosing Grand Jury testimony would be a drastic departure from established precedent and practice.
The decision of Appellate Division First Department reversing this court specifically states ". . . the defendants are entitled to the opportunity to demonstrate the truth of the articles as a whole (see Miller v. Journal-News, 211 AD2d 626, 627, 620 N.Y.S.2d 500),. . . ." This ruling is followed by a comma delineating that the words following the comma are not included in the Miller decision but are the words now used by the Appellate Division in their creation of an uncited heretofore non-existent precept. The words "Warranting disclosure even as to assertions in those articles that are not directly challenged in plaintiff's complaint" are unsupported by caselaw.
The Miller case involves a police officer suing to recover damages for alleged defamatory statements in two newspaper articles published by the defendant newspaper. The articles reported that plaintiff was "suspended" for firing a warning shot in pursuit of a shoplifter while moonlighting as a security guard. Miller is an action for defamation based upon the use of a single word. The plaintiff alleged he was placed on "administrative leave" rather than "suspension" and that the use of the word "suspended" was defamatory and false. The Miller decision, rendered on an appeal reversing an order denying summary judgment, involved the defendant's assertion that the statements at issue were substantially true in order to avoid liability in a libel action. The holding of Miller reads as follows: "Under New York law, the accuracy of the report should be assessed on the publication as a whole, not isolated portions of it." Miller, supra, citing Law Firm of Daniel P. Foster v. Turner Broadcasting Sys., 844 F.2d 955. In Rivera, the Appellate Division cites this holding as precedent creating the perception that it stands for the quantum legal precept that a party is entitled to disclosure even as to assertions in the Articles that are not directly challenged in the Complaint.
This is simply unsupported by the case-law in this Department or State. Miller, as previously discussed, involved alleged defamation based upon the use of the word "suspended" as opposed to "administrative leave" when describing the action taken by the police department against the plaintiff. The exact quotation in Miller which the Appellate Division relies on, and is in fact, the only part of the decision that remotely stands for what the Appellate Division condones herein, states: "Furthermore, under New York law the accuracy of the report should be assessed on the publication as a whole, not isolated portions of.' ( Law Firm of Daniel P. Foster v. Turner Broadcasting Sys.,..)" The very next line in Miller states "after assessing the two newspaper articles in their entirety and giving the language of the articles the fair reading of the average reader, we find that the plaintiff failed to submit adequate evidence to controvert the truth and accuracy of the articles and thus, failed to meet his burden of showing that there is a genuine issue for trial as to whether the statements were substantially true. ( Law Firm of Daniel P. Foster v. Turner Broadcasting Sys.,..)" Nowhere in the Miller decision are there words or a rule that discovery is warranted even as to assertions in those articles not challenged in a plaintiff's complaint. There is a tremendous gap between requiring that an entire article be read to determine the context in which one allegedly defamatory word was used and permitting unfettered disclosure hoping to prove uncontroverted facts.
Miller cites Foster for support in examining the report as a whole as opposed to isolated portions of the report. Foster did not address unfettered discovery but rather required that an examination of an entire televised news report in determining a summary judgment motion. In Foster, supra, the United states Court of Appeals, Second Circuit, addressed the issue of whether Plaintiffs were defamed by three separate news broadcasts concerning a search by the Federal Bureau of Investigation ("FBI"). During said broadcasts the plaintiff's law office was mentioned as a possible meeting place of an alleged revolutionary group. The broadcast also suggested the FBI may find itself on trial as the search did not produce what the FBI claimed would be found at the premises. The searched premises was an apartment in a building where the plaintiff's law office was also located.
In deciding the appeal and upholding the dismissal of the claim, the Circuit Court found that the broadcast as a whole was not defamatory because the broadcast contained interviews with tenants and alleged targets who vehemently denied being part of any revolutionary group. Furthermore, the broadcast's statement that the FBI may be the ones ultimately on trial demonstrated balanced reporting and no defamation could be discerned from the newscast. The issue of discovery only arises in the decision when the Circuit Court upholds the Lower Court's decision not to stay the summary judgment motion pending further discovery. No mention is made of unfettered discovery to prove the contents of the broadcasts as a whole. In fact, the Circuit Court's only mention of discovery is the following sentence: "Finally, we review Judge Keenan's denial of a continuance for the purpose of further discovery as falling well within his discretion on this record." Hence, it is clear that Foster does not stand for the proposition of unfettered discovery in a defamation lawsuit.
Melendez v. The City of New York, 109 AD2d 13, 489 N.Y.S.2d 741, is a First Department case wherein the plaintiffs were allowed access to their own Grand Jury testimony. In Melendez the plaintiff had been shot by a police officer and commenced a civil action seeking damages solely against the City. The complaint alleged use of excessive force and negligence in connection with the shooting, violation of approved police practice and negligence in the hiring, training and retention of the police officer, with knowledge of his alleged vicious propensity. The underlying shooting was investigated by the District Attorney and the matter presented to the Grand Jury which did not return an indictment. The plaintiff, his wife and the police officer all testified before the Grand Jury. The police officer testified with a waiver of immunity. Following the dismissal of the criminal charges, the plaintiff sought the Grand Jury testimony and an audio recording of the police officer made during the investigation. The plaintiffs therein argued there was no public need to maintain the secrecy of the Grand Jury minutes as the proceeding had been terminated and all charges dropped. The trial court judge granted the plaintiff's motion for disclosure solely to the extent of directing disclosure of the plaintiff's Grand Jury minutes for en camera inspection. The trial court denied disclosure outright as to the police officer's Grand Jury testimony and recording based upon a failure to demonstrate a compelling and particularized need for the disclosure. The Appellate Division further directed the disclosure of the plaintiffs' Grand Jury testimony. The Appellate Division stated that under the circumstances of that case, particularly the fact that the grand jury proceeding has been closed with no indictments, these considerations apply to permit a party in a subsequent civil action to obtain a copy of his own Grand Jury testimony, especially where, as here, it has direct bearing upon the issues in the civil litigation. There are several differences between Melendez and the case at bar are numerous. The first obvious difference is the Melendez plaintiff sought his own testimony. Furthermore, as discussed in Melendez, CPL § 190.25(4) does not specifically prohibit a witness from disclosing his own testimony. Therefore the issue before this court is whether the decision of Appellate Division now requires the trial court to direct the plaintiff to seek copies of his own Grand Jury testimony and then disclose to the defendant pursuant to CPLR § 3101. The discovery sought in the subpoenas issued by the NYP leaves no doubt that the NYP has read the Appellate Division's holding in Rivera to mandate this procedure and result. This court disagrees.
The confidentiality of Grand Jury proceedings, carefully cultivated and culled throughout our jurisprudential history, would be negatively impacted by the release of Grand Jury testimony in a private defamation lawsuit. What assurance is there for witnesses who testifies under the belief their testimony is going to be confidential that said testimony will not be made public when the Appellate Division's ruling can be interpreted as allowing Grand Jury testimony to be made public in a defamation lawsuit?
The Appellate Division First Department has stated Rivera must answer the Interrogatories listed in the beginning of this decision, specifically Interrogatory No. 36 which directs Rivera to state whether he has appeared before a Grand Jury to provide any testimony of any kind at any time and for such testimony, describe the nature of the questioning. Putting aside the obvious over-breadth of the Interrogatory and the possible lack of relevance to the issues germane to the matters contested between the parties, Rivera may very well have appeared before a Grand Jury on a matter totally unrelated to the allegations in the Articles. Rivera must now respond and reveal any information he may have shared with a Grand Jury irrespective of materiality to the issues at hand and any confidentiality under which he testified at the time is now obliterated.
However, that issue shall be addressed at a later date as this court will not extend, or interpret the Appellate Division's holding to require the District Attorney to disclose Grand Jury minutes. The policy in this State has been that Grand Jury minutes are confidential and are not to be disclosed except via court written order obtained via a motion on notice to the District Attorney pursuant to Judiciary Law § 325, CPLR § 2307. This was not done and the subpoena fails on procedural grounds. The District Attorney did not move to quash the subpoena but rather sent a letter detailing its opposition to the subpoena and its intent not to comply with same based upon the aforementioned procedural grounds. Furthermore, even had the defendants moved by motion for an order of disclosure of the Grand Jury minutes upon the same grounds stated herein, there is simply no compelling or particularized need for this access in the moving papers at this time. Matter of District Attorney of Suffolk County, 58 NY2d 436, 444 (1983).
Finally, as regarding Rivera's possible alleged arrest record, the Appellate Division has ruled the defendants are entitled to Rivera's arrest record as it pertains to the defense of this action. The specific Interrogatory requires Rivera to state whether he has ever being arrested by law enforcement authorities, for any violation or offense. For each such arrest the defendants seek Rivera to state the specific violation, the disposition of the matter, the date and place of the arrest and the date, court, and place of any conviction. No limitation is provided and none is given by the Appellate Division. Therefore, the defendants can clearly inquire as to whether Rivera was arrested as a juvenile, irrespective of whether said alleged file is sealed by court order or not. The question then becomes, does Rivera have to respond and provide the information if he was arrested as a minor and the record has been sealed by the court? Has the Appellate Division now directed that the sealing of juvenile records pursuant to the CPL is now extirpated when one's reputation may be at issue? (Interestingly, there is no mention of an arrest record anywhere in the Articles in this case.)
Next, the court addresses the defendants' discovery requests as it pertains to the Commission on Judicial Conduct ("CJC"). The CJC has moved to quash the subpoena served upon it by NYP. The defendants have cross-moved to compel disclosure. The defendants have subpoenaed the CJC for all its records concerning an alleged investigation of a complaint against the plaintiff. The parties have agreed to withdraw their respective motions without prejudice on the premise that this court should direct Rivera to authorize release of the CJC transcripts and records. Without ruling whether this court has jurisdiction to direct Rivera to do so, this court declines to direct Rivera in such a manner.
The CJC was created by statute which states "The commission on judicial conduct shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law; and, in accordance with subdivision d of this section, may determine that a judge or justice be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the administration of justice, or that a judge or justice be retired for mental or physical disability preventing the proper performance of his or her judicial duties." NYS Cons. Art. 6, § 22.
The CJC was given broad powers to create and effectuate rules and procedures as it sees fit to fulfill its statutory duties. Under NYS Cons. Art 6, § 22; 2c: "c. The organization and procedure of the commission on judicial conduct shall be as provided by law. The commission on judicial conduct may establish its own rules and procedures not inconsistent with law. Unless the legislature shall provide otherwise, the commission shall be empowered to designate one of its members or any other person as a referee to hear and report concerning any matter before the commission."
Under this section, CJC has established confidentiality as a cornerstone of its workings and proceedings. The CJC's procedures have consistently been in line with the State's interests in the quality of its judiciary. Under same, the CJC's insistence on confidentiality is well founded and widely upheld in this State. The confidentiality is not only for the Judges themselves, but for the witnesses and complainants involved in the proceedings before the CJC. Interference with that confidentiality curtails the free-flow of information to the CJC which is the lifeblood of its ability to perform its statutory duties. The potential waiver or breach of that confidentiality by a jurist is therefore not the only consideration in whether the CJC will provide access to its records, it is merely one of the factors therein. The CJC's proceedings from the initial complaint through the final determination are confidential. Judiciary Law § 45. In fact, absent a CJC determination to admonish, censure, remove or retire a judge such as the plaintiff, public disclosure of CJC records and proceedings is strictly prohibited. Judiciary Law § 44, 45; In the Matter of Stern v. Morgenthau, 62 NY2d 331. "If the Judge who is the subject of a complaint so requests in writing, copies of the complaint, the transcripts of hearings by the commission thereon, if any, and the dispositive action of the commission with respect to the complaint, such copies with any reference to the identity of any person who did not participate at any such hearing suitably deleted therefrom except the subject judge of complainant, shall be made available for inspection and copying to the public, or to any person, agency or body designated by such judge." Judiciary Law § 45.
It is clear confidentiality is of the utmost importance and a requisite when dealing with such a sensitive and important State interest. Only the CJC and its staff have access to confidential material in performance of their powers and duties. Judiciary Law § 45. Furthermore, if a CJC employee, staff member or agent breaches any of the confidentiality provisions of § 45, such person shall be subject to a reprimand, fine, suspension or removal.
With this as a backdrop, the court now examines the defendants' discovery request and the Appellate Division's decision to allow same to be provided. The defendants' discovery requests concerning the CJC involve a subpoena for CJC to produce an officer, director, member or employee to testify as a non-party witness and to produce documents, to the extent they exist, concerning Plaintiff and any alleged judicial misconduct. The Appellate Division ruled the information sought from or provided by plaintiff to the CJC to be sufficiently material and relevant to the defense of the action to warrant disclosure. However, pursuant to CPLR 3101(4)(b), privileged information is not discoverable and the court holds the CJC records to be privileged. While Rivera is directed to answer all the Interrogatories concerning the CJC, the CJC's records, transcripts, etc., are privileged, not discoverable and the CJC does not have to comply with the subpoena served upon it pursuant to Judiciary Law §§ 44 and 45.
While the Appellate Division has directed Rivera to answer Interrogatory No. 35, which requires Rivera to state whether you have been questioned by it regarding the issue of whether Justices of the New York State Supreme Court have paid for their seats on the bench and/or paid or received bribes, this court will not order the CJC to disclose any records on this matter as such records are confidential and privileged and are within the sole domain and control of the CJC and beyond the reach of a private party, irrespective of this lawsuit or alleged authorities cited in support of obtaining said records. This court believes the aforementioned Interrogatory invokes Judiciary Law §§ 44 and 45 and under same the CJC's records, transcripts, etc., are privileged, not discoverable, and beyond the scope or jurisdiction of this subpoena, interrogatory or any manner under which the defendants may seek to obtain the aforementioned. Despite the directive of the Appellate Division, the defendants have withdrawn the subpoena served upon the CJC without prejudice to renew, NYP has also withdrawn its branch of the motion seeking to compel on this issue and the CJC has also withdrawn its motion to quash the subpoena so this issue may be addressed in the future.
Finally this court addresses the subpoena served upon the Hon. Pfau. The defendants' subpoena deuces tecum and ad testificandum is identical to the subpoenas served upon all the other parties herein. Pursuant to the Appellate Division's June 9, 2009 Order, which ruled the defendants are entitled to disclosure of all matter material and necessary, and that those words are to be interpreted liberally even as to assertions that are not directly challenged in Plaintiff's complaint, the motion to quash the subpoena duces tecum and ad testificandum served upon Hon. Pfau is denied.
Furthermore, pursuant to the same Appellate Division decision, the Subpoenas served upon Justice Schmidt, Justice Pesce, Justice Schack, Justice Lewis, Justice Ruchelsman, Major Bryan, Michelle Lemonds, Justice Pfau, Justice Belen, Justice Gerges, Justice Margarita Lopes-Torres, Richard LaFontaine, Steven Cohn, Jerry Schmetter, Hon. Vito Lopes, Martin Malave, Gilberto Gonzalez, Jeffrey Feldman, Howard Ruditsky, Carl Andrews, Paul Siminovsky, Junior's Restaurant, Hon. Darryl Towns, Decosta Headley, Ernest lendler, Branford Communications, Jack Elefant, Ralph Bombardiere, Alan Fleishman, Scott Levenson and Victor Barron are to be complied with forthwith. Based upon the Appellate Division order of June 9, 2009, all of the motions to quash the aforementioned subpoenas duces tecum and ad testificandum on the respective are denied. The subpoenas on the Brooklyn District Attorney's office is quashed and the subpoena on the CJC has been withdrawn. Furthermore, all Judicial personnel is to be appointed counsel by the Attorney General's Office to assist them at the depositions based upon the broad scope of the subpoenas duces tecum and ad testificandum. Based upon all the prior litigation in this case, this court can not see the total exclusion of questions into matters of judicial function. Therefore, judicial personnel are entitled to representation by the State.
There is a difference between disclosure and privilege. None of these rulings should be taken or perceived as precluding the assertion of privilege by any deponent in the future.
Parties are to appear for a conference on April 25, 2011 at 9:30 a.m.