However, he "continues to oppose this requirement on Fifth Amendment grounds to the extent that it may be read to require him to identify further such persons." Mem. of Dominick Vulpis in Opp. to Certain Provisions of the Proposed Prelim. Inj., 2.
As the language of Fisher makes clear, there is no Fifth Amendment violation if the sought information adds a minor or negligible amount to the Government's intelligence. See 425 U.S. at 411 (no Fifth Amendment claim when the "existence and production of the papers are a foregone conclusion and the [witness] adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers") (emphasis added). Since the Government already knows of the vast majority of waste carters, Vulpis has no basis for objecting to providing a few more names or entities.
In short, even if Vulpis has a colorable Fifth Amendment challenge here which he did not in the contempt context, the court finds and concludes that the Government can still compel production because it "can demonstrate with reasonable particularity that it knows of the existence  of [the sought] documents" and the new information sought would add little to the sum total of the Government's information. In re Grand Jury Subpoena Duces Tecum Dated October 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993). The Government has been able to support its contention that it has knowledge of the type of information sought and its request is not overbroad. In United States v. Freidus, 135 F.R.D. at 56, a case which discusses the question of what constitutes knowledge in some detail, an individual's "act of production" challenge failed on the grounds that the government had sufficient information about the sought documents based on a two-hour deposition of her husband. See also In re Heuwetter, 584 F. Supp. 119 (S.D.N.Y. 1984) (grand jury target's Fifth Amendment challenge to order requiring him to produce records of sixteen named companies with which he had been associated failed because existence and identity of companies already known to government). The Freidus court found it significant that the government had actual knowledge of the documents, rather than imputed or inferential knowledge. Id.; but see Schroeder v. Indorsky, 1991 U.S. Dist. LEXIS 18589, 1991 WL 280312 (S.D.N.Y. Dec. 23, 1991) (fact of foreign travel supported inference that defendant's passport existed; defendant compelled to produce his passport for a receiver).
Vulpis has had at least as much involvement with the receiver as did the deponents in Freidus, and the Government has actual knowledge of the companies that may have made payments to Vulpis.
For his overall position, Vulpis has relied primarily on Grand Jury Subpoena Duces Tecum Served Upon John Doe, 466 F. Supp. 325 (S.D.N.Y. 1979). In the Grand Jury case, the Government sought to require the target to "produce all records of any kind received from certain named individuals in connection with or reflecting moneys paid or lent to or received from those persons." Id. at 326. In spite of the similarity of the above directive to the one presently at issue, there are two differences which, in the final analysis, speak to the same point. In Grand Jury, the request was overbroad because the Government did not have enough knowledge about what it was seeking. "During the argument it became clear [to the judge] that the existence of the documents is not . . . a 'foregone conclusion'." Id. at 327. The directive in the present matter is narrower, as it speaks to payments received with respect to a certain kind of transaction, and it goes to the existence of something that, in light of the 40 sets of instructions Vulpis has already sent, is not in dispute. Thus, the court holds now, as it held before, that Vulpis has no valid Fifth Amendment objection to providing the Receiver with the sought information.
III. Vulpis' Challenge to the New Proposed Paragraph
Vulpis' second objection concerns a new paragraph the Receiver has proposed adding to the preliminary injunction order. This paragraph states that "Vulpis is directed to place a minimum of $ 2,184,983.00 into the Escrow Account." According to the Receiver, "this sum represents the minimum amount of funds that the Receiver can establish through independent evidence that Vulpis has received . . . the evidence . . . shows that Vulpis directly or indirectly obtained approximately $ 1.1 million from the Vulpis Action Defendants and approximately $ 1.1 million from members of the waste carting industry as purported 'consulting' fees." Receiver's Mem. in Further Supp. of His Mot. for a Prelim. Inj., 3. In response, Vulpis notes that the Receiver has not established the "fundamental requirements" of a preliminary injunction -- "irreparable harm and likelihood of success on the merits" -- in its papers.
The court finds this argument unpersuasive and holds that the Receiver has in fact made the requisite showings. In Vulpis' May, 1997 action in New York Supreme Court, Vulpis swore to an affidavit indicating that he had been paid $ 1,090, 637 in accordance with five agreements under which he is a party with one or more of the Vulpis Action Defendants. The Receiver can confirm that Vulpis received at least $ 872,449 of this through documentary evidence. Moreover, the Receiver has discovered canceled checks, invoices of bank deposits, and other evidence to support a finding that Vulpis received $ 1,094,346 from members of the waste carting industry as purported consulting fees. All of this evidence, of course, exists against the backdrop of the circumstances which necessitated the temporary restraining order: the Receiver's thwarted, longstanding, elusive attempts to secure the money owed to the government. Without securing these crucial payments surrounding the waste carting company transactions, the Receiver will never begin to obtain the money for the government.
Thus, the court will add a new paragraph to the preliminary injunction ordering that Vulpis deposit a sum of $ 1,627,482 into the escrow account. The court has arrived at this figure as follows:
Amount from the Vulpis Action Defendants:
Plus Amount from the Consulting Fees: $ 1,094,346.00
Minus One Deposit Already Paid:
Minus Another Deposit Already Paid:
TOTAL: $ 1,627.482.00
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