BROWN v. WARREN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RAYMOND LAMAR BROWN, JOHN No. 1:20-cv-07907-NLH-AMD

CLARK, DESMOND RODGERS, TODD

FORD, JR. AND CARLOS SOLER,

individually and on behalf of OPINION

others similarly situated,

Plaintiffs,

v.

EUGENE CALDWELL, et al.,

Defendants.

APPEARANCES:

KAREN A. CONFOY

JEFFREY MORROW POLLOCK

PAUL W. KALISH

FOX ROTHSCHILD LLP, PC

997 LENOX DRIVE

BLDG 3

LAWRENCEVILLE, NJ 08648

On behalf of Plaintiffs

SUSANA CRUZ HODGE

JOSEPH J. DEPALMA

LITE DEPALMA GREENBERG & AFANADOR, LLC

570 BROAD STREET

SUITE 1201

NEWARK, NJ 07102

On behalf of Defendants

MICHAEL LOUIS TESTA, SR.

TESTA HECK SCROCCA & TESTA, PA

424 LANDIS AVENUE

PO BOX 749

VINELAND, NJ 08360

On behalf of Loren Joynes

JOHN-PAUL MADDEN

MADDEN & MADDEN

108 KINGS HIGHWAY EAST, SUITE 200

P.O. BOX 210

HADDONFIELD, NJ 08033-0389

On behalf of Charles Warren

WILLIAM J. HUGHES, JR.

PORZIO, BROMBERG & NEWMAN, P.C.

100 SOUTHGATE PARKWAY

P.O. BOX 1997

MORRISTOWN, NJ 07962-1997

Special Master

HILLMAN, District Judge

Before the Court are Captain Loren Joynes’1 and former

Warden Charles’ Warren’s2 applications for the Court to bar

production of certain physical electronic devices based on the

Fifth Amendment privilege against self-incrimination. (ECF 245,

255). The Court will grant in part and deny in part Joynes’

application and will grant Warren’s application in its entirety.

1 Captain Loren Joynes is a non-party employee of the Defendant,

Cumberland County Jail. Joynes has previously appeared as a

witness in this matter, most notably testifying regarding his

oversight of jail operations on May 11, 2021, the day of the

shakedown. (ECF 141).

2 Charles Warren previously served as the warden for the County

Defendant and was sued in his official capacity. Warren

resigned from his position on September 20, 2021. (See ECF

205). Warren is now a non-party witness in this matter.

BACKGROUND

The Court presumes the parties’ and third-party witnesses’

knowledge of the factual background of the case and only

recounts the facts salient to the dispute before it. On May 25,

2021, the Court ordered the Cumberland County Jail to produce

all electronic communications that were exchanged in the days

surrounding a shakedown at the jail. The shakedown occurred

contemporaneously with the Court’s endorsement of a consent

order entered into by the parties addressing prospectively the

Jail’s Covid-19 policy. (ECF 142 at 494:8-15.)

Pursuant to that Order, Defendants retained a forensic

expert, Jeff Brenner, who collected the devices of various jail

employees in order to prepare a report on what they contained as

it pertained to Plaintiffs’ allegations the shakedown was in

retaliation for this suit and the resulting consent order. As

relevant to the instant dispute before the Court, Joynes

produced his work desktop, work phone and personal phone and

Warren produced his work desktop and work phone for imaging.

During a hearing for this matter held on October 1, 2021,

the Court noted that it appeared that one of the corrections

officers in the jail who testified was not being truthful with

the Court and that documents may have been backdated or

destroyed. (ECF 225 at 15-24). The Court reminded the parties

of its power to hold individuals before it in criminal contempt

and that it viewed the testimony it heard as being potential

perjury. (Id.). Following that discussion on the record, on

October 22, 2022 and October 26, 2022, the Court separately

ordered the parties to conduct further imaging and review of

devices used by the jail officials including Joynes’ personal

computer and Warden Warren’s personal cell phone, which had not

previously been produced. (ECF 240, 242).

Joynes and Warren then filed letters on the record

objecting to the production or further imaging of any of their

devices pursuant to the Fifth Amendment. (ECF 245, 255).

Thereafter, the parties engaged in letter briefing regarding the

timeliness and applicability of the assertion of the Fifth

Amendment Privilege. (ECF 287, 289, 290). The Court considers

the assertion of the Fifth Amendment Privilege against self-

incrimination by Joynes and Warren against that factual

background.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction over the

underlying action pursuant to 28 U.S.C. § 1331.

II. Standard and Analysis

The self-incrimination clause of the Fifth Amendment reads:

“No person ... shall be compelled in any criminal case to be a

witness against himself.” Doe v. U.S., 487 U.S. 201, 207, 108

S.Ct. 2341, 2346, 101 L.Ed.2d 184 (1988). “As the Court has

often held, the Fifth Amendment ‘not only protects the

individual against being involuntarily called as a witness

against himself in a criminal prosecution but also privileges

him not to answer official questions put to him in any other

proceeding, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal proceedings.’”

Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 47

L.Ed.2d 810 (1976).

The Supreme Court has noted that when a party objects to

testifying or producing discovery based on their privilege

against self-incrimination, that objection must be made in a

timely manner. Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.

Ct. 1136, 1143, 79 L. Ed. 2d 409 (1984) (“Thus it is that a

witness confronted with questions that the government should

reasonably expect to elicit incriminating evidence ordinarily

must assert the privilege rather than answer if he desires not

to incriminate himself.”); see also United States v. Frierson,

945 F.2d 650, 660 (3d Cir. 1991) (“It is well established,

however, that the Fifth Amendment privilege against self-

incrimination is not self-executing and thus must be claimed

when self-incrimination is threatened. Minnesota v. Murphy, 465

U.S. at 429, 104 S.Ct. at 1143. This rule means that a person

cannot ordinarily complain on Fifth Amendment privilege grounds

to the use of information supplied by him or her unless the

privilege was asserted at the time the information was given.”);

Brock v. Gerace, 110 F.R.D. 58, 62 (D.N.J. 1986) (“Such an

objection, like any claim of privilege, must be set forth in a

timely manner.”); United States v. Alvarez, 519 F.2d 1036, 1045

(3d Cir. 1975) (holding that where doctor was retained to

evaluate defendant’s state of mind and the evaluation was shared

with the government, the defendant could not object to a

subpoena by the government to have the doctor testify).

The Court holds that Joynes has waived his privilege

against self-incrimination with respect to his personal cell

phone. Joynes contends that he did in fact assert the privilege

at the time that he turned his phone over to Brenner. However,

a review of the record reveals that he indicated to Brenner that

he was concerned about the privacy of his personal information,

not his right against self-incrimination. (ECF 289 at 10-11).

This privacy concern is not equivalent to the assertion of the

Fifth Amendment Privilege against self-incrimination. Fisher v.

United States, 425 U.S. 391, 399, 96 S. Ct. 1569, 1575, 48 L.

Ed. 2d 39 (1976) (“[T]he Court has never suggested that every

invasion of privacy violates the privilege. Within the limits

imposed by the language of the Fifth Amendment, which we

necessarily observe, the privilege truly serves privacy

interests; but the Court has never on any ground, personal

privacy included, applied the Fifth Amendment to prevent the

otherwise proper acquisition or use of evidence which, in the

Court's view, did not involve compelled testimonial self-

incrimination of some sort.”). Thus, the Court finds that

Joynes waived his Fifth Amendment Privilege against self-

incrimination with respect to his personal phone when he

produced it without objection to the Defendants’ forensic expert

for examination and analysis.3

It also appears that the Court need not be concerned that

the act of production of the phone itself is testimonial such

that ordering Joynes to turn over his personal phone for imaging

would violate his privilege against self-incrimination. First,

it appears that Joynes’ phone has already been given over to

Brenner and imaged and searched for information surrounding the

May 2021 shakedown event. Second, to the extent that the

transfer of the phone’s data to the Plaintiffs or any further

imaging of the phone would constitute an act of production, the

Court holds that such production would not be testimonial.

Indeed, the Supreme Court in Fisher held that where the

existence of evidence is a “foregone conclusion,” producing such

3 See Shakman v. Democratic Org. of Cook Cty., 920 F. Supp. 2d

881, 892-94 (N.D. Ill. 2013)( county employee who answered

questions in the context of an ongoing civil investigation of

the county waived her right to later assert her Fifth Amendment

Privilege against self-incrimination).

evidence does not violate the Fifth Amendment because the

production is not “sufficiently testimonial for purposes of the

privilege.” Fisher, 425 U.S. at 411. Because the parties

already know that Captain Joynes has a personal cell phone and

that it contains information pertinent to the operation of the

jail around the time of the shakedown event,4 admitting that he

has it and turning it over “adds little or nothing to the sum

total of the [] information” available to the government in any

prosecution. Id.; cf. United States v. Hubbell, 530 U.S. 27,

45, 120 S. Ct. 2037, 2048, 147 L. Ed. 2d 24 (2000) (noting that

where the government seeking production did not already know

about the existence and whereabouts of certain documents,

Fisher’s foregone conclusion rationale would not apply). Thus,

Joynes’ arguments regarding the act of production also fails.

Joynes also argues that he has not waived his Fifth

Amendment Privilege with respect to his personal computer. (ECF

287). The Court agrees with Joynes in that respect. The

personal computer was never produced and was not clearly ordered

to be produced until October 26, 2022. On October 27, 2022,

counsel for Joynes filed a letter on the docket asserting the

privilege. The Court finds this assertion of the privilege

4 The report by Brenner touched on the contents of Joynes’

personal cell phone and noted the existence of text messages

related to work on his phone. (See ECF 235 at 1).

timely and thus does not find the privilege waived with respect

to Captain Joynes’ personal computer. Brock, 110 F.R.D. at 62.

Further, because the parties do not know if there is any

pertinent information at all on the personal computer, any act

of production by Joynes of that personal computer could be

testimonial such that it would fall within the ambit of the

Fifth Amendment privilege against self-incrimination. Hubbell,

530 U.S. 27 at 45.

Warren separately argues that he should not be compelled to

turn over his personal cell phone for imaging because he timely

asserted his privilege against self-incrimination. The Court

agrees. Warren argues that the Court cannot find that there was

any waiver on his part because he never turned over his personal

cell phone and timely asserted his privilege against self-

incrimination as soon as the issue arose. Indeed, after the

Court clearly ordered production of that device on October 26,

2022, Warren wrote to the Court through counsel on November 2,

2022 to assert the privilege and advise the Court that he would

not be producing his phone. This assertion of the privilege

prior to production is timely and the Court will not find a

waiver. Maness v. Meyers, 419 U.S. 449, 463, 95 S. Ct. 584,

593, 42 L. Ed. 2d 574 (1975) (noting that it is a “familiar

procedure” to decline to produce documents while a court decides

if those documents are covered by the Fifth Amendment

Privilege). The Court also does not perceive sufficient

indications in the record at this juncture to suggest that the

existence of relevant evidence on Warren’s personal phone is a

foregone conclusion such that ordering him to produce it would

not be testimonial.5 Hubbell, 530 U.S. at 45. That said, should

the existence and location of relevant documents or

communications on Warren’s personal cell phone become obvious by

virtue of reviewing other discovery in this case, production by

Warren may no longer be testimonial. Based on the current

record before the Court, though, it would be inappropriate to

order Warren to turn over his device for imaging at this time.

CONCLUSION

For the reasons expressed above, the Court holds that the

5 To be sure, the report submitted by Brenner revealed text

messages that appear to be from Warren’s personal phone to

Joynes, potentially in violation of this Court’s sequestration

order. (See ECF 225, 235). The Court notes that some date back

to the time of the shakedown in May 2021 and discuss the

incident. The fact that there are text messages regarding the

shakedown does not automatically imply that Warren’s personal

phone contains messages regarding retaliation or intent to cover

up a retaliation. The current record only shows Warren using

his personal phone to discuss the shakedown in his capacity as

the warden responsible for the jail. The Court, while

concerned, is not prepared to hold that the existence of

evidence showing retaliation by Warren is a foregone conclusion.

Hubbell, 530 U.S. at 45 (declining to view the existence of

certain documents as a foregone conclusion where the “Government

[had] not shown that it had any prior knowledge of either the

existence or the whereabouts of the 13,120 pages of documents

ultimately produced by respondent”).

Fifth Amendment Privilege against self-incrimination protects

Joynes’ personal computer and Warren’s personal phone from

production. However, the Court holds that Joynes’ has waived

the privilege with respect to his personal cell phone.

An appropriate Order will be entered.

Date: July 14, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.