United States District Court, S.D. New York
OPINION & ORDER
SIDNEY H. STEIN, District Judge.
John Doe, the subject of a grand jury investigation convened by the U.S. Attorney's Office for the Southern District of New York, has moved to intervene in order to quash a grand jury subpoena served on an investigator who had previously assisted in his defense. Doe also seeks the return of a file kept by the investigator that she provided to government agents during an interview conducted at her apartment. Following a three-day fact-finding hearing concerning Doe's motion, Doe's motion to quash is granted in part and denied in part for the reasons set forth below.
A. The Retention of Investigator
Late one night in early 2009, a young woman died of a cocaine overdose following a tryst at an upscale Manhattan hotel. (Def. Ex. F; Hr'g Tr. 203:14-23.) In the hotel room with that woman, whom the Court will refer to as "Decedent, " were two other people - John Doe and Jane Roe. Within a week of Decedent's death, John Doe had retained a veteran criminal defense attorney ("Lawyer") to represent him in the face of any anticipated prosecution. (Def. Ex. A; Hr'g Tr. 35:24-25.) One of the first things Lawyer did was retain a firm of third-party investigators, primarily to interview witnesses. (Def. Ex. A; Hr'g Tr. 10:13-12:3.) That firm prepared a letter confirming that the firm was working for Lawyer "in connection with [Lawyer's] representation of" John Doe. (Def. Ex. A at 1.) The firm gave Lawyer written reports of its progress. (Hr'g Tr. 12:4-7.) However, Lawyer did not himself pay the firm for its services. ( Id. 11:18-20.)
Two years passed. By early 2011, Lawyer and John Doe were aware that Doe was the target of an ongoing criminal investigation by the U.S. Attorney's office for the Southern District of New York. ( Id. 40:8-41:6.) Despite the passage of time, there were still witnesses that Lawyer's investigators had not interviewed. ( Id. 14:7.) These witnesses were women, so Lawyer figured that they "might be able to relate better with another woman" rather than Lawyer's stable of male investigators. ( Id. 14:9-10.)
With these thoughts in mind, Lawyer reached out to a female investigator ("Investigator") with whom Lawyer had been in contact for several months. (Hr'g Tr. 13:19-24; Gov't Ex. 11.) On April 1, 2011, Lawyer and Investigator met at Lawyer's office. (Hr'g Tr. 21:15-16, 57:5-24; Def. Ex. C at 4.) Lawyer "explained the nature of the case to [Investigator], asked her that [he would] like her to participate in the matter, and indicated to her that... a meeting with some of the attorneys [was taking place] tomorrow... and would like her to attend for the purpose of meeting the client and meeting the other attorneys." (Hr'g Tr. 14:16-21.) Lawyer admits that he did not retain Investigator at the April 1 meeting. ( Id. 21:19.) Lawyer explained that he wanted to "get everybody's approval" before retaining Investigator. ( Id. 21:20-21.)
On April 2, 2011, John Doe and his defense team met at an office in Westchester County. (Gov't Ex. 3 ¶ 3.) Prior to this meeting, Lawyer had informed another of Doe's attorneys - a partner at a large New York law firm - that Lawyer "had used [Investigator] as an investigator on prior cases and had brought her in to assist him" representing Doe. ( Id. ) Investigator sat in as Doe and his battery of attorneys discussed his legal defense strategy. (Def. Ex. D ¶ 8.)
The April 2 meeting was the first time that Doe and Investigator met. (Hr'g Tr. 58:6-7.) Lawyer testified that he retained Investigator on the day of this meeting. ( Id. 21:22-23.) Investigator testified that during the meeting, Lawyer told Doe that Investigator's retainer was $5, 000, and that Doe paid Investigator approximately $500 cash at that time. ( Id. 101:8-102:8.)
Approximately six weeks after Investigator began working on the Doe matter, Doe executed a contract, authorizing Investigator's company (of which she was the sole member) "to conduct a full investigation as follows;
Take witness statements and conduct background and criminal history inquiries. Analysis of previously compiled data. Prepare written reports for the Law Offices of [Lawyer]. Provide court testimony if required.
I [John Doe] have hereby retained the services of [Investigator's company] under the following terms and conditions....
(Gov't Ex. 7 at 1.) Those terms and conditions listed Investigator's retainer as $5, 000 and her hourly fee as $100. ( Id. ) John Doe and Investigator each executed this contract on May 13, 2011. ( Id. at 3.)
B. Investigator's Work on the Doe Case
After the April 2 meeting, Investigator began working on the Doe matter. (Hr'g Tr. 63:1-3.) Investigator's duties chiefly involved witness interviews. Lawyer testified that he told Investigator whom to interview, including a woman who came to the hotel the night of Decedent's death, another woman who was present, and the limousine driver who took Jane Roe away from the hotel after Decedent had collapsed. (Hr'g Tr. 45:16-46:4.) Investigator also testified that Lawyer, not John Doe, told investigator whom to interview. ( Id. 98:16-20.) Lawyer testified that Investigator never prepared written reports, memos, nor indeed any written documents for Lawyer. ( Id. 29:25-30:3, 34:23-25.) This conflicts with Investigator's testimony - that she provided Lawyer with written reports following each of her interviews. ( Id. 109:20-110:21.) However, Investigator did come to Lawyer's office in person to discuss the case. ( Id. 34:25-35:8, 60:18-20, 66:24-67:1, 97:10-14, 105:18-21.) Investigator "told [Lawyer] who she saw, what she did, how difficult it was to see a particular witness or how easy it was." ( Id. 35:2-3.)
Lawyer did not pay Investigator - apparently Lawyer's "normal practice." ( Id. 36:4, 64:13-18.) Rather, John Doe paid Investigator in cash. ( Id. 102:21-25.) Investigator's billing system was erratic at best. ( Id. 94:9-96:2.) Somehow, Investigator would make known to John Doe the amount he owed and they would meet in person for Doe to pay Investigator in cash. Often, these meetings took place in Doe's car as he drove the streets of Manhattan. ( Id. 103:3-15.) Sometimes, Investigator would contact John Doe's sister in order to secure payment from Doe. ( Id. 106:9-107:1.) All told, John Doe paid Investigator approximately $12, 000 for her work on the case. ( Id. 102:14-103:2.)
Investigator was also in a great deal of phone contact with both Doe and Lawyer. Between April and August 2011, Investigator's two phones reported 157 "contacts" with the cell phone registered to John Doe. ( Id. 321:6-10.) In 2011, Investigator's phones reflected 63 "contacts" with Lawyer. ( Id. 322:19-323:3.) Investigator's phones also reflected 41 "contacts" with a phone registered to Doe's sister. ( Id. 323:4-7.) "Contacts" encompasses both text messages and voice communications. ( Id. 319:16-21, 321:24-25.)
C. Meetings with Jane Roe
Two incidents that took place during Investigator's work on the Doe matter deserve special attention. Each involved Jane Roe - the third person in the hotel room the night of Decedent's death who was a key witness Lawyer wanted Investigator to interview. ( Id. 57:20-24.)
The first incident took place in early April 2011, just a few days after Investigator began work on the Doe case. Jane Roe had been subpoenaed to testify before a grand jury in the Southern District of New York. (Gov't Ex. 1 at 105-07.) In advance of her testimony, John Doe had hired an attorney to represent Roe. (Hr'g Tr. 206:2-5.) (The Court will refer to this lawyer as "Roe's attorney.") The night before Roe was due to testify, Roe's attorney came to her house to help her prepare. Unbeknownst to him, his conversation with Roe was recorded.
Roe's attorney coached Roe on what to say in order to make the case "go away." (Gov't Ex. 2T at 8.) Following the incident when Decedent died, Roe had given the New York police a detailed statement describing what had happened that night. (Def. Ex. F.) Roe's attorney recommended that Roe contradict this statement: for example, "if they ask you if you saw [John Doe] with drugs, tell em you'd been drinking n' you did not see [Doe] with drugs. (UI) not sure what you saw. If [the prosecutors] read you your statement, you say well that's not what I saw.' If you say these things, the case will go away." (Gov't Ex. 2T at 13.) Roe's attorney suggested that Roe explain away her statement to police by claiming that she signed it simply in order to go home after 16 hours in custody. ( Id. at 17.)
In addition to his unethical and criminal coaching, Roe's attorney told Roe that John Doe wanted "to send to his, his lawyer's investigator here to take a statement from ya tonight." ( Id. at 6.) Roe's attorney asked if Roe had "any objection to being interviewed by [Doe's] lawyer's investigator, having her write down what you just said, and signing it? I don't, there's not ramifications for you. But it, it gives [Doe], um, a lot of peace of mind." ( Id. at 16.) Roe's attorney described this investigator multiple times - each time as working for Doe's lawyer. ( Id. at 6, 7, 16, 17, 18, 20.) Roe, however, refused to speak with the investigator. ( Id. at 22.) Roe's attorney called the investigator and told her not to come to Roe's house. ( Id. at 23.)
The investigator Roe's attorney spoke of was Investigator, who testified before this Court. Investigator testified that Roe's attorney left a voicemail, asking Investigator "[w]hat time are you coming to take the statement [from Roe]?" (Hr'g Tr. 142:7.) Investigator understood "taking a statement" to mean asking Roe questions, not "prepar[ing] a statement for that person to sign." ( Id. 81:4-5.)
The second incident of note took place in early May 2011. ( Id. 134:9.) Once again, Investigator was hoping to "take a statement" from Jane Roe. ( Id. 134:16-18.) Investigator drove to John Doe's place of business, where she met Doe's sister. ( Id. 134:16-19.) Together, they drove to an abandoned warehouse. ( Id. 134:16-21, 135:25-136:7, 145:24-25.) Outside the warehouse, Investigator met Roe's attorney. ( Id. 136:11-16.) Roe's attorney and Investigator went into the warehouse and waited in a small office. ( Id. 137:1-12.) Some time ...