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D'AURIZIO v. BOROUGH OF PALISADES PARK

September 29, 1995

ALBERT D'AURIZIO, Plaintiff,
v.
BOROUGH OF PALISADES PARK, et al., Defendants.



The opinion of the court was delivered by: HEDGES

 HEDGES, Magistrate Judge

 INTRODUCTION

 Albert D'Aurizio, the plaintiff in this civil rights action, seeks to compel a nonparty witness, Susan Spohn, to answer certain deposition questions intended to secure evidence of how she voted in a school board election and in several general elections. The issue was brought to my attention during a conference. I directed the parties to submit letter briefs. I heard oral argument on September 26, 1995. *fn1"

 DISCUSSION

 Plaintiff describes the "background" for his application as follows:

 
This is an action for political termination of plaintiff, a school custodian, whom defendants characterize, in effect, as the 'lowest man on the totem pole.' The primary claims arise under §§ 1983, 1985 and 1986 of the Civil Rights Act, for conspiracy and attendant acts. Plaintiff alleges (and has developed overwhelming proof in discovery) that he was punished by the Palisades Park Republican leaders because he ran (unsuccessfully) as an independent candidate for the borough council in November 1991. Various named and unnamed co-conspirators participated in the actions which led to plaintiff's elimination due to pretextual 'budgetary constraints.'

 Although, as plaintiff acknowledges, his "primary claims" arise under the Civil Rights Act, he has asserted State law claims.

 Any analysis of privilege must begin with Rule 501 of the Federal Rules of Evidence:

 
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness *** shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness *** shall be determined in accordance with State law.

 "Under this rule, in federal question cases the federal common law of privileges applies." Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982). Resolving a question of first impression in the Third Circuit, Wm. T. Thompson Co. held that, "when there are federal law claims in a case also presenting state law claims, the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule." 671 F.2d at 104. However, this holding does not "preclude resort to state law analogies for the development of a federal common law of privileges in instances where the federal rule is unsettled." 671 F.2d at 104. Accordingly, in the civil action before me, which includes both federal and State law claims, I must consider plaintiff's application under the federal common law of privileges.

 In Trammel v. United States, 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), the Supreme Court modified the common law privilege for adverse spousal testimony "so that the witness-spouse alone has a privilege to refuse to testify adversely ***." 445 U.S. at 53. In so doing, the Supreme Court discussed the intent of Rule 501:

 
The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges ***. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to 'provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,' 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. [ 445 U.S. at 47].

 Among other things, the Supreme Court observed that modification of the privilege would be consistent with the trend in state law and scholarly criticism and that the "ancient foundations" for the sweeping common law privilege had disappeared. 445 U.S. at 48-50, 52.

 In University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990), the Supreme Court refused to recognize a common law privilege "against the disclosure of peer review materials" in a Title VII action. 493 U.S. at 189. The Supreme Court addressed the creation of evidentiary privileges as follows:

 
We do not create and apply an evidentiary privilege unless it 'promotes sufficiently important interests to outweigh the need for probative evidence ....' Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). Inasmuch as 'testimonial exclusionary rules and privileges contravene the fundamental principle that 'the public ... has a right to every man's evidence,' id. at 50, quoting United States v. Bryan, 339 U.S. 323, 331, 94 L. Ed. 884, 70 S. Ct. 724 (1950), any such privilege must 'be strictly construed.' 445 U.S. at 50.
 
Moreover, although Rule 501 manifests a congressional desire 'not to freeze the law of privilege' but rather to provide the courts with flexibility to develop rules of privilege on a case-by-case basis 445 U.S. 40 at 47, 100 S. Ct. 906, 63 L. Ed. 2d 186, we are disinclined to exercise this authority expansively. [ 493 U.S. at 189].

 In rejecting the privilege claim, the Supreme Court noted that Congress had been aware of the potential burden of disclosure of peer review materials when it enacted Title VII, that recognition of the privilege would likely lead to similar privilege claims and that the privilege had no historical or statutory basis. 493 U.S. at 191, 194-95.

 Trammell and University of Pennsylvania caution a federal court to tread warily in recognizing a privilege. Nevertheless, Rule 501 "provide[s] the courts with greater flexibility in developing rules of privilege on a case-by-case basis." United States v. Gillock, 445 U.S. 360, 367, 63 L. Ed. 2d 454, 100 S. Ct. 1185 (1980); see In Re Grand Jury Investigation (Appeal of United States), 918 F.2d 374, 378-79 (3d Cir. 1990). *fn2"

 What test governs recognition of a privilege? In In Re Grand Jury Investigation (Appeal of United States), supra, the Third Circuit Court of Appeals "weighed Dean Wigmore's four fundamental prerequisites for a privilege against the disclosure of communications" in recognizing the common law clergy-communicant privilege. 918 F.2d at 383-84. These are:

 
(1) The communications must originate in a confidence that they will not be disclosed.
 
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
 
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
 
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [8 Wigmore, Evidence § 2285 at p. 527 (McNaughton rev. ed. 1961) (footnote omitted) (emphasis in original)].

 The court also "considered the balancing process described by Judge Weinstein" in United States v. King, 73 F.R.D. 103 (E.D.N.Y. 1976):

 
The justifiable 'principles of the common law' as they relate to matters of developing new privileges -- those not firmly embedded in federal law -- require the balancing of four factors: first, the federal government's need for the information being sought in enforcing its substantive and procedural policies; second, the importance of the relationship or policy sought to be furthered by the state rule of privilege and the probability that the privilege will advance that relationship or policy; third, in the particular case, the special need for the information sought to be protected; and fourth, in the particular case, the adverse impact on the local policy that would result from non-recognition of the privilege. [ 918 F.2d at 384 n.12 (quoting United States v. King, supra, 73 F.R.D. at 105)].

 The Wigmore and King factors are reflected in a "somewhat broader and more refined list of criteria" proposed by Professors Mueller and Kirkpatrick:

 
(1) the importance to the community of the relationship sought to be protected; (2) whether community values would be offended by governmental intrusion into the privacy of the relationship; (3) the extent to which societal traditions and professional standards create a reasonable expectation of confidentiality in such a relationship; (4) whether the purpose of the relationship depends upon full and open communication; (5) the extent to which such communication would be impeded by nonrecognition of a privilege; and (6) the direct and indirect benefits to the public from encouraging the communication and protecting the privacy of the relationship in comparison to the cost to the litigation process resulting from the loss of evidence. [2 C. Mueller & L. Kirkpatrick, Federal Evidence § 172 at p. 232 (2d ed. 1994) (footnote omitted)].

 I adopt these latter criteria, addressed to the tenor of a vote rather than a communication per se, here. ...


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