In general, motions for reargument will be granted only if
the Court overlooked "matters or controlling decisions" which,
if considered by the Court, would have mandated a different
result. See Litton Industries Inc. v. Lehman Brothers Kuhn Loeb
Inc., 1989 WL 162315, 1989 U.S. Dist. LEXIS 9145, at 9-10
(S.D.N.Y. 1989); Moll v. U.S. Life, 700 F. Supp. 1284, 1286
(S.D.N.Y. 1988) (Leisure, J.); Bozsi Limited Partnership v.
Lynott, 676 F. Supp. 505, 509 (S.D.N.Y. 1987). The interest of
courts in the finality of their decisions is important, yet it
is clear that "the 'law of the case' does not rigidly bind a
court to its former decisions, but is addressed only to its
good sense." Higgins v. California Prune & Apricot Grower,
Inc., 3 F.2d 896, 898 (2d Cir. 1924) (Hand, L., J.). If a court
believes a prior ruling to be incorrect, the only just and
sensible course is to change the prior ruling and proceed with
On April 19, 1990, the Court issued an Order and Opinion
734 F. Supp. 1084, denying Gambino's motion to suppress the fruits
of electronic surveillance at the Caffe Giardino (the "April 19
Opinion"). Though Culnan's motion for reargument with regard to
the April 11 Order had been filed by that time, the Court did
not want to delay issuance of the April 19 Opinion due to the
upcoming trial date of certain of Gambino's co-defendants who
had joined in his suppression motion. The Court stated that it
would modify the April 19 Opinion if the in camera inspection
went forward and probative evidence was discovered in Culnan's
notes. See April 19 Opinion, 734 F. Supp. at 1089 n. 4.
The holding and reasoning of the Court's April 19 Opinion is
central to consideration of the pending motion for reargument.
In the April 19 Opinion, the Court ruled that confidential
informant William Kane's involvement in the installation and
maintenance of surveillance devices in the Caffe was not
illegal under either Title III or the U.S. Constitution. April
19 Opinion, 734 F. Supp. at 1088-93. The Court also held that
Gambino had not shown that unauthorized electronic surveillance
had taken place in the Caffe prior to March 1988, and that, in
any case, there was no evidence whatsoever of a lack of good
faith on the part of the government in executing the
authorization orders necessary for suppression pursuant to
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677 (1984). April 19 Opinion, 734 F. Supp. at 1095-97. In a
footnote, the Court stated that its specific interest in
Culnan's notes was to verify whether electronic surveillance
took place at the Caffe Giardino prior to March 1988, the date
of Judge Costantino's initial authorization order. April 19
Opinion, 734 F. Supp. at 1089 n. 4.
Culnan makes two basic arguments in support of his motion for
reargument. First, he claims that the April 11 Order is
self-contradictory, as it holds on the one hand that Gambino
did not make the required showing of materiality needed to
enforce his subpoena ad testificandum and duces tecum, and on
the other hand, it holds that an in camera inspection of
Culnan's notes is warranted. Second, Culnan argues that the
holding and reasoning of the Court's April 19 Opinion, rendered
after the decision to conduct an in camera inspection, vitiates
any need for further factual discovery into his notes. Each
argument will be considered in turn.
Culnan's first argument is premised on the assumption that
the showings required to enforce a subpoena ad testificandum
and duces tecum against a journalist, and to order an in camera
inspection of a journalist's notes, are similar. It is not
necessary to discuss this point in detail or to make a formal
ruling, as the Court finds that Culnan's second argument is
meritorious. The Court does believe, however, that in camera
inspections provide a useful intermediate step between full
disclosure and total nondisclosure. The Court does not doubt
the chilling effects created by the potential for in camera
inspections. However, that effect must by necessity be less
than created by full disclosure. At the same time, the Court
can gain valuable factual information which may bear on a
criminal defendant's guilt or innocence. The privilege must be
carved with a mind to competing policy interests in order to
remain a realistic and respected rule of law.
Culnan's second argument is meritorious. The Court has stated
that its only interest in Culnan's notes at this time is to
determine whether unauthorized bugging took place at the Caffe
Giardino prior to March 1988. See April 19 Opinion, 734 F. Supp.
at 1089 n. 4. After full reflection on the factual and legal
issues before it, however, the Court determined in the April 19
Opinion that Gambino had put forward
no evidence that government agents, executed Judge Costantino's
authorization orders without a good faith reliance on their
validity. Such a showing would be necessary for suppression of
the intercepted conversations pursuant to United States v.
Leon, supra, 468 U.S. 897, 104 S.Ct. 3405.
It is certain that "some threshold showing of materiality,
relevance, and necessity should be required [before conducting
an in camera review]," New York Times Co. v. Jascalevich,
439 U.S. 1331, 1335, 99 S.Ct. 11, 14, 58 L.Ed.2d 38 (1978)
(citations omitted). The Court's partial reliance on United
States v. Leon in the April 19 Opinion has raised and broadened
the threshold of materiality needed to justify an in camera
inspection of Culnan's notes. As the Court held in the April 19
Opinion, Gambino's theory of a government scheme actively to
mislead Judge Costantino as to prior electronic surveillance at
the Caffe Giardino is not borne out by any credible facts
before the Court. April 19 Opinion, 734 F. Supp. at 1096-97. In
reconsidering the April 11 Order in light of the final holding
and reasoning of the April 19 Opinion, the Court does not
believe that any such facts would be found in Culnan's notes.
The Court hereby grants Culnan's motion for reargument, and
vacates the portions of the April 11 Order which required an in
Gambino's motion for reargument must be denied. No new
assertions of fact or law have been placed before the Court
which mandate a detailed reconsideration of the April 11 Order.
Based on the April 11 Order, the April 19 Opinion, and the
reasoning of this Memorandum Order, the Court hereby reaffirms
its decision to quash the subpoena ad testificandum and duces
tecum served by Gambino on Culnan.
Culnan's motion for reargument is granted. The portions of
the Court's April 11, 1990 Memorandum Order requiring an in
camera inspection of any and all of Culnan's notes regarding
electronic surveillance at the Caffe Giardino is vacated.
Gambino's cross-motion for reargument is denied.