In Re Dr. John Doe, M.D., a Witness Before the January 1982 Additional Grand Jury. Dr. John Doe, M.D. v. United States

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 compensation from three named corporations. The prescription forms, one copy of which finds its way to the New York State Department of Health, N.Y. Public Health Law §§ 3332, 3333 (1977), were not simply required records but public records. Moreover, New York’s purpose in requiring them was the same as the Government’s in the grand jury investigation here, the regulation of the traffic in dangerous drugs. Since the forms are thus excepted from the privilege against self-incrimination, the exception includes their production despite the fact that testimony is thereby compelled. See In re Grand Jury Proceedings, 601 F.2d 162, 171 (5 Cir.1979). Whether or not the W-2 forms were also within the required records exception, they were prepared by Dr. Doe’s employers and not by him, and stand no differently than the accountants’ letters and workpapers which were required to be produced in Fisher v. United States and United States v. Kasmir, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). I also join in Parts III and IV of Judge Cardamone’s opinion. However, I respectfully dissent from so much of the opinion as would compel Dr. Doe to produce the patient files.

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 Interview 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.

I think it clear and do not understand my colleagues to dispute that, apart from the required records exception, Dr. Doe could successfully invoke the self-incrimination privilege against production of these files. It is, of course, immaterial that the files may not have been bona fide patient files, and that Dr. Doe may have been engaging in shady practices. Any idea that the privilege exists mainly for protection of the innocent vanished long ago. It is true that by a series of Supreme Court decisions, most of which are analyzed in United States v. Beattie I, 522 F.2d 267, 271-74 (2 Cir.1975), taxpayer’s petition for certiorari denied, Government’s petition for certiorari granted and cause remanded, 425 U.S. 967, 970, 96 S.Ct. 2163, 2165, 48 L.Ed.2d 791 (1976), the shield given to business records by the constitutional privilege is narrow. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), denied a claim of privilege by the president of a corporation with respect to copies of letters and telegrams which were signed by him but constituted company records. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), reached the same result concerning a claim by an assistant supervisor with respect to union records. Bei-lis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), came to the same conclusion with respect to the records of a three-man law partnership.¹ On another front, Couch v. United States, 409 U.S. 322,93 S.Ct. 611, 34 L.Ed.2d 548 (1973), held that a taxpayer could not assert the privilege with respect to his own records which were in the possession of an accountant. Fisher v. United States and United States v. Kasmir, supra, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39, came to the same conclusion with respect to taxpayers’ assertions of the privilege with respect to accountants’ papers in the taxpayers’ hands.²

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 “[sjeveral 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 Beilis “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. Beilis 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 2189. The question how a person can be ordered, consistently with the language of the self-incrimination clause, to produce his own records of business dealings under circumstances when he cannot be required to testify about such dealings remains unanswerable. Fisher did not deal at all with an individual’s privilege concerning his own papers in his own possession; it simply refused to extend the privilege to include papers of another that were in his possession, 425 U.S. at 414, 96 S.Ct. at 1582. This court thus had no difficulty in holding on the post-Fisher remand in Beattie that the privilege extended to the taxpayer’s own letters to the accountant of which he had regained possession. We did not “read Fisher and Kasmir as detracting from the principle that the Fifth Amendment protects against compulsory production of a paper written by an accused with respect to his own affairs ... and now in his possession ...” United States v. Beattie II, 541 F.2d 329, 331 (2 Cir.1976). No subsequent decision by the Supreme Court or by this court suggests any reason to alter that view. Dr. Doe is thus constitutionally protected against having to produce at least the Structured Interview Form and the diagnosis page of the patient files unless the required records exception applies.

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 respect to wagering activities. Justice Harlan wrote in Grosso, 390 U.S. at 68, 88 S.Ct. at 713:

The premises of the doctrine, as it is described in Shapiro, are evidently three: first, the purposes of the United States’ inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party had customarily kept; and third, the records themselves must have assumed “public aspects” which render them at least analogous to public documents.

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 true 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 acting within its authorized scope of authority to investigate professional misconduct, subject to requirements of confidentiality and anonymity for the patient. N.Y. Public Health Law § 230.10(k) & (7) (1982 Supp.).

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 of requiring the records and that for which their production is sought. The Shapiro opinion recognized this when it said, 335 U.S. at 32, 68 S.Ct. at 1391-92:

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 records 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 Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2 Cir.1981). More nearly apposite, and tending to favor Dr. Doe, is In re Katz, 623 F.2d 122 (2 Cir.1980).⁹ Also tending in his favor is United States v. Campos-Serrano, 430 F.2d 173, 176-77 (7 Cir.1970), aff’d on other grounds, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971).

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.

1 . The Court recognized, 417 U.S. at 95 n. 2, 94 S.Ct. at 2186 n. 2, that Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), had upheld a claim of privilege by a partner with respect to partnership records but stated that “at this early stage in the development of our Fifth Amendment jurisprudence, the potential significance of this fact was not observed by either the parties or the Court.”

2 . In fact the taxpayers had transferred possession to their attorneys but the Court considered that the taxpayers had retained whatever Fifth Amendment privilege they had had, 425 U.S. at 398-99, 96 S.Ct. at 1574-75, and that documents transferred from a client to his attorney for the purpose of obtaining legal advice need not be produced by the attorney if the client himself would be privileged from producing them, id. at 404-05, 96 S.Ct. at 1577-78.

3 . These views have found echo in commentary. See, e.g., Meltzer, Required Records, the McCarran Act, and the Privilege Against Self-Incrimination, 18 U.Chi.L.Rev. 681, 712 (1951) (“a bizarre result in a constitutional system”); Note, Constitutional Limits on the Admissibility in the Federal Courts of Evidence Obtained from Required Records, 68 Harv.L.Rev. 340, 342-45 (1954); Maguire, Evidence of Guilt, § 2.09(3) (1959); 8 Wigmore, Evidence § 2259c at 364 (McNaughton rev. 1961) (“The logic of the situation is most difficult”); Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup.Ct.Rev. 103, 148-49 (A “hodgepodge of half-convincing explanations contributed to the shaky foundations upon which the Shapiro decision was raised”.); McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev. 193, 215-17; M. Berger, Taking the Fifth 184-85, 188 (1980).

4 . Justice Fortas, concurring, would have been “prepared in an appropriate case to re-examine the scope of the principle announced in Shapiro v. United States, 335 U.S. 1 [68 S.Ct. 1375, 92 L.Ed. 1787] (1948)”, but was “not prepared to indicate doubt as to the essential validity of Shapiro” 385 U.S. at 520, 87 S.Ct. at 630.

5 . Protection of privacy is only one of the seven policies of the constitutional privilege listed in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964). Its genesis was in Judge Frank’s dissent in United States v. Grunewald, 233 F.2d 556, 581-82 (2 Cir.1956), rev’d without discussion of this point, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).

6 . It is by no means clear that New York would apply the required records exception if a New York prosecutor sought to compel production of the patient files in an investigation of violations of New York’s narcotics laws. One lower New York court has held the required record exception inapplicable to patients’ medical records subpoenaed from a practitioner charged with sexually abusing his patients, People v. Cohen, 98 Misc.2d 874, 876, 414 N.Y.S.2d 642, 643 (Dist.Ct.1979), although a limited production was compelled on the ground that the patients’ right of access to the records prevailed over the practitioner’s Fifth Amendment claim. In several cases involving nursing home abuses, New York courts have found the exception applicable to nursing home patients’ medical records as well as financial records, but have refused to compel the production of the former on the basis of the physician-patient privilege, Lewis v. Hynes, 82 Misc.2d 256, 261-63, 368 N.Y.S.2d 738, 744-45 (Sup.Ct.1975), followed in Kent Nursing Home v. Office of the Special State Prosecutor for Health & Social Services, 49 A.D.2d 616, 370 N.Y.S.2d 669 (2d Dept.) (compelling production only of nonmedical records required under 10 (N.Y.C.R.R. 730.-6), aff’d sub nom. Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518 (1975).

7 . The majority accepts much of the analysis. It also seems to abandon one of the New York provisions urged by the Government, namely, the regulation requiring disclosure of the records on demand of the patient or when required for his reimbursement, and relies solely on the availability of the records to authorities who might be investigating Dr. Doe for professional misconduct, notably, the “ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient,” 8 N.Y.C.R.R. § 29.2(a)(8) (1981). It is not clear to me that this provision, especially when read in context, would cover Dr. Doe’s alleged misconduct. Moreover, New York’s interest in disciplinary action is quite different from the Federal Government’s interest in criminal sanctions.

8 . Dr. Warren was charged with and found guilty of selling, delivering, and disposing of amphetamine sulphate. The federal statute under which he was convicted required him to make and keep records on the disposition of amphetamine, and the records in question consisted only of patient names and notations of the number of injections given, the dates, and the charges made for them. As this court specifically noted, 453 F.2d at 742, “[tjhey contained no other medical information.”

To the same effect is United States v. Rosenberg, 515 F.2d 190, 199-200 (9 Cir.) (opinion by Judge Lumbard, sitting by designation), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975), a prosecution of a physician for federal narcotics law violations, in which a subpoena for “patient records as they related to the dispensation of narcotic substances” was found to be within the required records exception insofar as it compelled production of prescription records required to be kept by a state statute whose “only purpose ... is to aid in the enforcement of the drug control statutes”.

9 . In Katz an attorney successfully resisted a subpoena to produce “public documents” in his possession, specifically file copies of articles of incorporation otherwise untraceable to his clients, sought by a grand jury investigating possible violations of the Arms Export Control Act of 1954.