The opinion of the court was delivered by: VICTOR Marrero, U.S.D.J.
Petitioner Louis K. Meisel and The Louis K. Meisel Gallery
(collectively, "Meisel") filed the instant application as a miscellaneous
motion to compel the Federal Bureau of Investigation (the "FBI"), as a
third party, to produce its current and former agents for depositions in
a state court proceeding (the "Application"). The FBI objected to the
procedure and opposed Meisel's application. For the foregoing reasons, the
Court denies the Application without prejudice.
The Application presents a discrete legal issue. Nevertheless, the
Court's ruling can only be understood against the backdrop of this
matter's unique procedural posture. Accordingly, the following is a
detailed summary of the uncontested factual and procedural background.
This summary is taken from Meisel's Application, the Declaration of Danna
Drori, dated May 13, 2002, and their attachments.
In 1998, Edward Blumenfeld ("Blumenfeld") filed a complaint in the
Supreme Court of the State of New York, New York County, against Meisel
(the "State Litigation"). In that case, Blumenfeld alleges that Meisel
committed fraud by selling mobiles it purported were created by the
artist Alexander Calder ("Calder"), knowing such mobiles were fakes.
Meisel deposed an expert witness for Blumenfeld, Alexander Rower
("Rower") who is the grandson of Calder and often employed to
authenticate works attributed to Calder. Rower stated that he visited
Meisel in 1989, saw a mobile attributed to Calder there (the "Mobile")
and informed Meisel that he did not believe the Mobile was genuine. He
stated that he also informed FBI agents Margo Dennady ("Dennady") and
Catherine Begley ("Begley") of his opinion.
The first step Meisel took was to serve a subpoena duces tecum on the
FBI on July 19, 2001 (the "July Subpoena") seeking documents relating to
communications between Rower and Begley or other FBI agents that relate
to the Mobile. The FBI did not comply with the July Subpoena on the
ground that it, inter alia, violated the sovereign immunity of the United
Meisel's second step was to file a miscellaneous motion in this Court
to compel the production of the documents contained in the July
Subpoena. Before the matter was heard by Judge Sand, sitting in Part I,
the FBI and Meisel entered into a stipulated dismissal pursuant to which
the FBI agreed to produce documents. In addition, Meisel reserved its
"right to make further application for depositions to authenticate the
FBI Documents as needed." Stipulation and Order of Settlement, M18-303,
slip. op. at 2 (S.D.N.Y. Mar. 5, 2002) (the "Stipulation")
The FBI first complied with the Stipulation by providing Meisel with
one document. Meisel objected because it found the document to be
irrelevant and unresponsive to its needs. The FBI provided Meisel with
two additional documents. Unsatisfied, Meisel sought further assistance
from Judge Sand pursuant to Local Rule 5(a), which provides that: "When
a modification or further action on such determination is sought, it
shall be referred to the judge who made the original determination even
though said judge is no longer sitting in Part I." Judge Sand found that
the FBI had complied fully with the Stipulation. He instructed that
Meisel's "request for depositions is a new application which [Meisel is]
free to make `as the rules permit.'" Memorandum and Order, M18-303, slip
op. at 3 (S.D.N.Y. Apr. 4, 2002).
Meisel's third step was, on April 5, 2002, to issue two more subpoenas
duces tecum on the FBI seeking deposition testimony from Dennady and
Begley (the "Subpoenas"). The Subpoenas were issued from the State
Litigation. By letter from the FBI's Chief Division Counsel, Steven A.
Carlotto, to Gerald E. Singleton dated April 11, 2002 (the "April
Letter"), the FBI informed Meisel that it would not comply with the
Subpoenas because Meisel had not satisfied applicable procedural
regulations.*fn1 In particular, the FBI stated it was not authorized to
disclose the requested information because the Subpoenas: (1) were issued
by a state court and thus jurisdictionally invalid; (2) did not explain
how the information requested is relevant to the underlying litigation
and thus did not satisfy Touhy Regulations; (3) violated the Privacy
Act; (4) were barred by res judicata, and because Begley was no longer
employed at the FBI.
Meisel's fourth step was to file the Application. Meisel filed the
Application pursuant to the Privacy Act, 5 U.S.C. § 552a(b)(11), and
the Administrative Procedures Act, 5 U.S.C. § 702 et seq. (the
"APA"), arguing that the April Letter is an arbitrary and capricious
final agency action. As relief, Meisel requests that the Court issue an
order "directing the FBI to comply with the Subpoena and to produce FBI
Agents Dennady and Begley for deposition." (Application, at 15.) The
was assigned to this Court, sitting in Part I.
The FBI filed numerous objections and oppositions to Meisel's
miscellaneous motion. Meisel filed letter briefs in reply. On May 15,
2002, the Court held a hearing to determine its jurisdiction and address
the parties' arguments. Following that hearing, the parties supplemented
their oral arguments with additional letter briefs.
At the Hearing, also, Blumenfeld sought to intervene pursuant to Fed.
R. Civ. P. 24(a). Meisel consented to the intervention but the FBI
objected. On the record, Blumenfeld explained his interest in the
proceeding, informing the Court that he sought only "reciprocity or
parity" rights to be present at the depositions of Dennady and Begley, if
ordered. (Tr., at 39-41.) Based on these representations the FBI ...