privilege bar in New York

1977The Supreme Court has ruled in Schmerber v California ( 384 US 757, 764 ) that results of a blood test are not inadmissible on privilege grounds, because the privilege is a bar only against compelled "communications” or "testimony”, and does not protect against "compulsion which makes a suspect or accused the source of 'real or physical evidence’ ”.

1976The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ’communications’ or ’testimony,’ but that compulsion which makes a suspect or accused the source of 'real or physical evidence’ does not violate it.” (Schmerber v California, 384 US 757, 764 .) In Schmerber the Supreme Court held that the extraction and analysis of blood involved no "shadow of testimonial compulsion upon or enforced communication by the accused.” (Schmerber, supra, p 765 .) The compelling of handwriting exemplars has been held not protected by the privilege a

2018With request to the subpoenaed documents, defendant must establish a "factual predicate" by submitting the documents for an in camera inspection and/or "compiling a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review" ( Matter of Astor , 62 AD3d at 869-870 [internal quotations marks, brackets and citation omitted]; see Matter of Subpoena Duces Tecum to Jane Doe , 99 NY2d 434, 442 [2003]; Ren Zheng Zheng v Bermeo , 114 AD3d 743 , 745 [2014]; Matter of Lieb v Henry , 99 AD2d at 758 ).

2009Co., 135 AD2d at 488 ) by “compil[ing] a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review” (Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 442 [2003]; see Matter of Lieb v Henry, 99 AD2d at 758 ).

2024A total identity of interest among participates is not required under New York law ( GUS Consulting GMBH v Chadbourne & Parke LLP , 20 Misc 3d 539, 542 [Sup. Ct. 2008] [" . . . the [common interest] privilege applies where an interlocking relationship or a limited common purpose necessitates disclosure to certain parties"]).

2024A total identity of interest among participates is not required under New York law ( GUS Consulting GMBH v Chadbourne & Parke LLP , 20 Misc 3d 539, 542 [Sup. Ct. 2008] [" . . . the [common interest] privilege applies where an interlocking relationship or a limited common purpose necessitates disclosure to certain parties"]).

2007Thus, “the narrow and technical rules normally applied to determine the admissibility of evidence” (Martirano, 25 NY2d at 508) are not used to determine a statement’s pertinence for purposes of the privilege analysis.

1991A contrary rule would be an impediment to the search for truth and prevent inquiries with the freedom and boldness required for the welfare of our society (see, Martirano v Frost, supra, at 508-509; Youmans v Smith, supra, at 220 ).

1976The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ’communications’ or ’testimony,’ but that compulsion which makes a suspect or accused the source of 'real or physical evidence’ does not violate it.” (Schmerber v California, 384 US 757, 764 .) In Schmerber the Supreme Court held that the extraction and analysis of blood involved no "shadow of testimonial compulsion upon or enforced communication by the accused.” (Schmerber, supra, p 765 .) The compelling of handwriting exemplars has been held not protected by the privilege a

1975The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications’ or 'testimony,’ but that compulsion which makes a suspect or accused the source of 'real or physical’ evidence does not violate it.” (Schmerber v California, 384 US 757, 764 [obtaining defendant’s blood sample for analysis].) (See, also, United States v Wade, 388 US 218 [requiring defendant to participate in a lineup and to speak], and Gilbert v California, 388 US 263 [taking handwriting exemplars from defendant].) In People v Damon ( 24 NY2d 256 ), the trial

2018With request to the subpoenaed documents, defendant must establish a "factual predicate" by submitting the documents for an in camera inspection and/or "compiling a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review" ( Matter of Astor , 62 AD3d at 869-870 [internal quotations marks, brackets and citation omitted]; see Matter of Subpoena Duces Tecum to Jane Doe , 99 NY2d 434, 442 [2003]; Ren Zheng Zheng v Bermeo , 114 AD3d 743 , 745 [2014]; Matter of Lieb v Henry , 99 AD2d at 758 ).

2009Co., 135 AD2d at 488 ) by “compil[ing] a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review” (Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434, 442 [2003]; see Matter of Lieb v Henry, 99 AD2d at 758 ).

2007However, an individual’s “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying” (Gardner v Broderick, supra at 276).

1996(Gardner v Broderick, 392 US 273, 276 , citing Counselman v Hitchcock, 142 US 547, 585-586 , and Murphy v Waterfront Commn., 378 US 52, 79 .) Thus it is clear that Police Department regulations granting use immunity nullify any constitutional objections presented herein. .

2025True: the Supreme Court has held that "[a] trial by jury in suits at common law pending in the State courts is not . . . a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge" ( Walker v Sauvinet , 92 US 90, 92 [1875]).

2018With request to the subpoenaed documents, defendant must establish a "factual predicate" by submitting the documents for an in camera inspection and/or "compiling a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review" ( Matter of Astor , 62 AD3d at 869-870 [internal quotations marks, brackets and citation omitted]; see Matter of Subpoena Duces Tecum to Jane Doe , 99 NY2d 434, 442 [2003]; Ren Zheng Zheng v Bermeo , 114 AD3d 743 , 745 [2014]; Matter of Lieb v Henry , 99 AD2d at 758 ).

2007In a situation where a public employee is compelled to answer questions or face dismissal, the responses are automatically cloaked with immunity (see Matter of Matt v Larocca, 71 NY2d 154, 159 [1987], cert denied 486 US 1007 [1988]; see also Lefkowitz v Turley, supra at 78-79; Garrity v New Jersey, 385 US 493, 500 [1967]; People v Avant, 33 NY2d 265, 271 [1973]).

2007In a situation where a public employee is compelled to answer questions or face dismissal, the responses are automatically cloaked with immunity (see Matter of Matt v Larocca, 71 NY2d 154, 159 [1987], cert denied 486 US 1007 [1988]; see also Lefkowitz v Turley, supra at 78-79; Garrity v New Jersey, 385 US 493, 500 [1967]; People v Avant, 33 NY2d 265, 271 [1973]).

2007To be actionable, a statement made in the course of judicial proceedings “must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” (id.; see also Cavallaro v Pozzi, 28 AD3d 1075, 1077 [2006]; Grasso, 164 AD2d at 479 ).

2007In a situation where a public employee is compelled to answer questions or face dismissal, the responses are automatically cloaked with immunity (see Matter of Matt v Larocca, 71 NY2d 154, 159 [1987], cert denied 486 US 1007 [1988]; see also Lefkowitz v Turley, supra at 78-79; Garrity v New Jersey, 385 US 493, 500 [1967]; People v Avant, 33 NY2d 265, 271 [1973]).

2007In a situation where a public employee is compelled to answer questions or face dismissal, the responses are automatically cloaked with immunity (see Matter of Matt v Larocca, 71 NY2d 154, 159 [1987], cert denied 486 US 1007 [1988]; see also Lefkowitz v Turley, supra at 78-79; Garrity v New Jersey, 385 US 493, 500 [1967]; People v Avant, 33 NY2d 265, 271 [1973]).

2002(Matter of Karp, 145 AD2d at 216 ; Giarrusso v City of Albany, 174 AD2d 840, 841 [3d Dept 1991]; Matter of Rahmey v Blum, 95 AD2d at 300 ; see Wells v Crosson, 210 AD2d 932 [4th Dept 1994]; Burke v Crosson, 191 AD2d 998, 999 [4th Dept 1993].) The court also has offered repeatedly to permit plaintiffs to introduce all or parts of the redacted information subject to a confidentiality order.

2002(CPLR 3103 [a]; see, e.g., Serdaroglu v Serdaroglu, 209 AD2d at 603 ; Sheldon v Kimberly-Clark Corp., 111 AD2d at 913 .) Finally, if defendant’s cross-examination seeks information irrelevant to the claim for fees and expenses or subject to a privilege or immunity that has not been waived, the court will entertain and sustain a proper objection.