Jury - Selection of Jury - Disclosure of Juror Information - Protection of Confidential Information

Disclosure - Discovery and Inspection - Post-Note of Issue Discovery Request - No Unusual or Unanticipated Circumstances

Smith, Sovik, Kendrick & Sugnet, P.C. (Kevin J. Casserino of counsel) for defendant.

Robert James, plaintiff pro se.

Defendant filed a notice for application for disclosure of jury{**88 Misc 3d at 251} list pursuant to 22 NYCRR 840.6. The Commissioner of Jurors was put on notice of the application. Plaintiff has been heard in opposition to the application.

Defendant seeks the jurors' names to "investigate the biases, impartiality, prejudices, mental competence, and any other factors which might cause less than a fair trial [for defendant]." The defendant relies on People v Perkins (125 AD2d 816 [3d Dept 1986]) to support its request for disclosure of the jurors' names. In Perkins, the Court held the application

"should be granted since it appears the information is sought by an attorney for a defendant in a criminal matter as part of counsel's trial preparation and for the valid purpose of advancing his client's right to a fair and impartial jury trial. Moreover, there is no indication whatsoever that the privacy interests sought to be protected by the statute will be compromised if relief is granted in this case." (Id. at 818.)

In the present case, the information sought is "confidential and shall not be disclosed except . . . as permitted by the appellate division" under Judiciary Law § 509 (a). The Appellate Division, Third Department delegated the authority to hear and determine requests for disclosure of juror information under 22 NYCRR 840.6 to the trial courts. The rule itself dates to 1989. It directs that all applications "for disclosure of the list of potential jurors for use in counsel's trial preparation shall be directed to and determined by the trial judge or justice." The rule does not set forth any criteria for determining the application and there is a paucity of cases interpreting the rule. The rule is unique to the Appellate Division, Third Department (see Matter of Barker v [*2]Union Corrugating Co., 72 Misc 3d 731 [Sup Ct, Onondaga County 2021]).

In Barker, a party filed a motion seeking the disclosure of juror information. The court found "sound reasons for not permitting the disclosure of juror identity prior to voir dire." (Id. at 733.)

"Even the seemingly innocent characterization of defendants' request as one to investigate the biases, impartiality, prejudices, mental competence, and any other factors which might cause less than a fair trial is one which lends itself to great mischief. Potential jurors are not parties to an action. Opening the door to de facto cross-examination on items which one may find in an Internet search based{**88 Misc 3d at 252} only on a name and general location . . . is hardly a stable foundation and would lead to the treatment of jurors as adverse parties instead of potential finders of fact." (Id. [internal quotation marks omitted].)

The court ultimately denied the motion on the grounds that it lacked the legal authority to do so under the Judiciary Law. (The court is located in the Fourth Department, which does not have a rule delegating the authority to determine such motions, similar to that in the Third Department.)

In considering the request for disclosure of jurors' names in the present case, the court finds that it presents a scenario not present in Perkins and thus can be distinguished from it. First, Perkins was a criminal case which presented constitutional issues not present here. In addition, the plaintiff herein is not represented by counsel. Attorneys are bound by the Rules of Professional Conduct, including conduct as it relates to prospective jurors (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 3.5). Specifically, counsel is prohibited under rule 3.5 from communicating with a juror or prospective juror (Rules of Prof Conduct rule 3.5 [a] [4]) or attempting to influence a juror or prospective juror (Rules of Prof Conduct rule 3.5 [a] [5]). Lawyers may not "conduct a vexatious or harassing investigation of either a member of the venire or a juror or, by financial support or otherwise, cause another to do so." (Rules of Prof Conduct rule 3.5 [a] [6].) Plaintiff, who is not represented by counsel, is not bound by these rules. The information defense counsel seeks would necessarily have to be shared with plaintiff, who is not duty bound to honor such confidentiality. The court does not suggest that the plaintiff would intentionally misuse the information but his lack of counsel could too easily lead to the improper violation of jurors' privacy interests.

There have been almost unimaginable advances in computer technology and the amount and nature of information available about potential jurors in the last 39 years since the Perkins case was decided and its court held "there is no indication whatsoever that the privacy interests sought to be protected by the statute will be compromised if relief is granted in this case." (Perkins at 818.) In today's world, a simple Internet search of a juror's name can reveal the address of every location they have ever lived, their telephone number, email addresses, the names and relationship of family members, social media accounts, arrest record, and employment history.{**88 Misc 3d at 253} Unfortunately, there is no certainty that any of the above information is accurate. This leads exactly to the type of mischief anticipated by the Barker court and the "de facto cross-examination . . . and . . . the treatment of jurors as adverse parties instead of potential finders of fact." (Barker at 733.)

In Matter of Newsday, Inc. v Sise (71 NY2d 146 [1987]), the New York Court of Appeals was presented with the question of whether juror questionnaires were confidential or subject to disclosure pursuant to a Freedom of Information Law request. The Court determined that the juror questionnaires were confidential and not subject to disclosure because

"[i]t is the knowledge about the jurors—the private details obtained from the questionnaires concerning their spouses' names, the names and ages of their children, their home telephone numbers, occupations, educational backgrounds, and criminal records, if any—which the statute is designed to protect from public disclosure (see, Matter of Herald Co. v Roy, 107 AD2d 515, 520; see also, People v Perkins, 125 AD2d 816, 817-818)." (Newsday at 152.)

"It is the information from the [*3]questionnaires, not the forms themselves which, if made public, could invade the jurors' privacy interests or threaten their safety and that information, therefore was made confidential." (Id.) The very same type of information on a juror questionnaire which the Court of Appeals found was confidential is now readily available through an Internet search of a juror's name.

Undoubtedly, defendant has the right to a fair trial (see Judiciary Law § 500). That right, however, can be protected by the opportunity to conduct a voir dire of potential jurors during jury selection at which time jurors' potential bias, prejudice, mental competence and any other issues that might cause less than a fair trial can be explored. This court will provide the defendant's counsel, and the pro se plaintiff, as much time as is needed to fully explore these issues during jury selection. It is not necessary to disclose the jurors' names, and by extension their families' names, and all of the other information alluded to hereinabove, to ensure that a fair jury is selected in this case. The request to disclose the jurors' names is, therefore, denied.

Turning to the remaining issue at hand, in response to the application, plaintiff indicated his intent to conduct depositions.{**88 Misc 3d at 254} The trial note of issue in this matter was filed on February 13, 2023. The trial, which commences on July 21, 2025, was scheduled by order dated March 14, 2025. It is well-settled that post-note of issue discovery may only be conducted with approval from the court upon motion where the movant demonstrates that "unusual or unanticipated circumstances" developed since the filing of the note of issue to warrant such relief (22 NYCRR 202.21 [d]; Fusco v Town of Colonie, 201 AD3d 1114, 1114-1115 [3d Dept 2022]; Miller v Metropolitan 810 7th Ave., 50 AD3d 474, 475 [1st Dept 2008]).

Plaintiff's filing does not constitute a motion under the CPLR. Even if the court construed it as a motion, plaintiff has not demonstrated unusual or unanticipated circumstances to justify additional discovery where the trial is scheduled to commence in just over one week. The request is denied.

The court has examined all other arguments and to the extent they are not specifically addressed, they are denied.

Now, therefore, it is hereby ordered that the application for disclosure of the jury list is denied; and it is further ordered that plaintiff's request to conduct additional discovery is denied.