----------------------------------- x : THE NEW JERSEY LEGISLATIVE SELECT : COMMITTEE ON INVESTIGATION, : Plaintiff, : : v. : : : WILLIAM STEPIEN, : Defendant.

: ----------------------------------- x

SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY No. MER-L-354-14

DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION TO ENFORCE ITS SUBPOENA DATED JANUARY 27, 2014

MARINO, TORTORELLA & BOYLE, P.C. 437 Southern Boulevard Chatham, New Jersey 07928-1488 (973) 824-9300 Attorneys for Defendant William Stepien

On the Brief: Kevin H. Marino John D. Tortorella Erez Davy

TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 5 A. The Transportation Committees Investigation Into The Lane Closures And Chairman Wisniewskis Mischaracterization Of Mr. Stepiens Involvement In Those Lane Closures. ............................................................................................. 5 Formation Of The New Jersey Select Legislative Committee And Its WideRanging Investigation Into Perceived Abuses of Government Power. ....................... 9 The Parallel Federal Investigations. .......................................................................... 13 The Governor Severs Ties With Mr. Stepien And The Committee Insists That He Comply With A Subpoena That Is Unconstitutional On Its Face. .............. 14 1. The Governors Immediate Severance Of Ties With Mr. Stepien Upon Publication Of The Twenty-Two Pages Of Documents On January 8, 2014. ...................................................................................................................14 The Federal Investigation Of Mr. Stepien. ........................................................15 The Subpoena To Mr. Stepien. ..........................................................................16 Mr. Stepiens Detailed Objections to the Subpoena and the Committees Refusal to Withdraw It. ......................................................................................17

B. C. D.

2. 3. 4.

LEGAL ARGUMENT .................................................................................................................. 19 I. THE SUBPOENA VIOLATES MR. STEPIENS RIGHT NOT TO INCRIMINATE HIMSELF. ............................................................................................. 19 A. B. The Principles Underlying The Fifth Amendment And Its Protection Of The Innocent And Guilty Alike. ....................................................................................... 19 The Subpoena Violates The Extensive Protections Afforded By the Act-ofProduction Doctrine. ................................................................................................. 28 1. 2. 3. 4. II. The Committee Misreads Hubbell. ....................................................................29 The Hazards of Incrimination Are Not Trifling or Imaginary. ...................32 The Committee Cannot Identify, Locate, and Authenticate the Documents It Demands Without Mr. Stepiens Assistance. ..............................39 Refusing To Enforce The Subpoena Will Not Increase The Likelihood Of An Attack On Our Nation. ............................................................................45

THE SUBPOENA COMPELS MR. STEPIEN TO PRODUCE PRIVATE INFORMATION IN VIOLATION OF NEW JERSEYS COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION......................................................... 49 A. New Jerseys Common-Law Privilege Against Self-Incrimination Affords Even Greater Protections Than The Act-Of-Production Doctrine. ........................... 49 i

B. III.

The Subpoena Demands Information In Violation Of New Jerseys Broader Privilege Against Self-Incrimination. ....................................................................... 50

THE COURT SHOULD NOT COMPEL MR. STEPIEN TO RESPOND TO SUBPOENA REQUEST NOS. 6 AND 7 BECAUSE THEY VIOLATE THE FEDERAL AND STATE CONSTITUTIONAL BAN ON UNREASONABLE SEARCHES AND SEIZURES. ...................................................................................... 58

CONCLUSION ............................................................................................................................. 59

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TABLE OF AUTHORITIES Cases Bear Sterns & Co. v. Wyler, 182 F. Supp. 2d 679 (N.D. Ill. 2002) ........................................................................................ 36 Blau v. United States, 340 U.S. 159 (1950) .................................................................................................................. 30 Boyd v. United States, 116 U.S. 616 (1886) ........................................................................................................... passim Carter v. Kentucky, 450 U.S. 288 (1981) .................................................................................................................. 19 Doe v. United States, 383 F.3d 905 (9th Cir. 2004) .................................................................................. 23, 41, 44, 45 Doe v. United States, 487 U.S. 201 (1988) .................................................................................................................. 29 Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765) .................................................................................................. 21 Fisher v. United States, 425 U.S. 391 (1976) ........................................................................................................... passim Greenbaum v. United States, 280 F. 474 (6th Cir. 1922) ........................................................................................................ 21 Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) .............................................................................................. 55, 56 Hoffman v.United States, 341 U.S. 479 (1951) ...................................................................................................... 30, 33, 47 In re Addonizio, 53 N.J. 107 (1968) .................................................................................................................... 49 In re Corrugated Container Antitrust Litig., 620 F.2d 1086 (5th Cir. 1980) .................................................................................................. 39 In re Corrugated Container Antitrust Litig., 662 F.2d 875 (D.C. Cir. 1981) ............................................................................................ 32, 33 In re Grand Jury Empaneled on April 6, 1993, 869 F. Supp. 298 (D.N.J. 1994) .......................................................................................... 30, 47 In re Grand Jury Proceedings of Guarino, 104 N.J. 218 (1986) ............................................................................................................ 50, 57 In re Grand Jury Subpoena Dated February 2, 2012, __ F.3d __, No. 13-403-cv, 2013 U.S. App. LEXIS 25316 (2d Cir. Dec. 19, 2013) ......... 27, 29 In re Grand Jury Subpoena Duces Tecum, 466 F. Supp. 325 (S.D.N.Y. 1979) ..................................................................................... 28, 44 iii

In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012) .......................................................................................... 28, 47 In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir. 2004) .................................................................................................... 28 In re McVane, 44 F.3d 1127 (2d Cir. 1995) ..................................................................................................... 58 In re Shain, 92 N.J. 524 (1983) .................................................................................................................... 48 Kastigar v. United States, 406 U.S. 441 (1972) ............................................................................................................ 38, 47 Katz v. United States, 389 U.S. 347 (1967) .................................................................................................................. 54 Marchetti v. United States, 390 U.S. 39 (1968) .............................................................................................................. 32, 34 McGrain v. Daugherty, 273 U.S. 135 (1927) .................................................................................................................. 48 Moore v. Gilead Sciences., Inc., No. 07-cv-3850, 2011 U.S. Dist. LEXIS 132408 (N.D. Cal. Nov. 16, 2011) .......................... 36 Morss v. Forbes, 24 N.J. 341 (1957) .................................................................................................................... 48 Murphy v. Waterfront Commn of New York Harbor, 378 U.S. 52 (1964) .................................................................................................................... 20 Nelson v. Pilkington PLC, 385 F.3d 350 (3d Cir. 2004) ..................................................................................................... 32 Ohio v. Reiner, 532 U.S. 17 (2001) .................................................................................................................... 19 Quinn v. United States, 349 U.S. 155 (1955) .................................................................................................................. 20 R.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128 (D. Minn. 2012) ..................................................................................... 56 S.D. Farm Bureau v. Hazeltine, 202 F. Supp. 2d 1020 (D.S.D. 2002) ........................................................................................ 48 See v. Seattle, 387 U.S. 541 (1967) .................................................................................................................. 58 Smith v. Maryland, 442 U.S. 735 (1979) .................................................................................................................. 53 Spring Valley Water-Works v. Bartlett, 16 F. 615 (C.C.D. Cal. 1883) .................................................................................................... 48

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State v. DeFranco, 426 N.J. Super. 240 (App. Div. 2012) ...................................................................................... 55 State v. Earls, 214 N.J. 564 (2013) .................................................................................................................. 53 State v. Hartley, 103 N.J. 252 (1986) .................................................................................................................. 49 State v. Hunt, 91 N.J. 338 (1982) .............................................................................................................. 52, 53 State v. McAllister, 184 N.J. 17 (2005) .................................................................................................................... 54 State v. Muhammad, 182 N.J. 551 (2005) ............................................................................................................ 49, 58 State v. Reid, 194 N.J. 386 (2008) ............................................................................................................ 54, 55 State v. Strong, 110 N.J. 583 (1988) ...................................................................................................... 49, 50, 58 Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010) .................................................................................................................. 54 United States v. Allshouse, 622 F.2d 53 (3d Cir. 1980) ....................................................................................................... 37 United States v. Apfelbaum, 445 U.S. 115 (1980) .................................................................................................................. 32 United States v. Bright, 596 F.3d 683 (9th Cir. 2010) .............................................................................................. 37, 41 United States v. Burgard, No. 10-cr-30085, 2011 U.S. Dist. LEXIS 9893 (S.D. Ill. Feb. 2, 2011) .................................. 56 United States v. Cioffi, 668 F. Supp. 2d 385 (E.D.N.Y. 2009) ...................................................................................... 56 United States v. Doe, 465 U.S. 605 (1984) ................................................................................................ 24, 25, 27, 29 United States v. Edelson, 604 F.2d 232 (3d Cir. 1979) ..................................................................................................... 36 United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) .................................................................................................... 56 United States v. Grable, 98 F.3d 251 (6th Cir. 1996) ...................................................................................................... 33 United States v. Hubbell, 530 U.S. 27 (2000) ............................................................................................................. passim

United States v. Jones, 132 S. Ct. 945 (2012) .......................................................................................................... 53, 54 United States v. King, 55 F.3d 1193 (6th Cir. 1995) .................................................................................................... 56 United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004) ............................................................................................... 55, 56 United States v. Marra, No. 05-cv-2509, 2005 U.S. Dist. LEXIS 23411 (D.N.J. 2005) ................................................ 37 United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006) ...................................................................................... 28, 31, 42 United States v. Raniere, 895 F. Supp. 699 (D.N.J. 1995) .......................................................................................... 32, 35 United States v. Scala, 432 F. Supp. 2d 403 (S.D.N.Y. 2006) ...................................................................................... 19 United States v. Sharp, 920 F.2d 1167 (4th Cir. 1990) .................................................................................................. 39 United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) .................................................................................................... 55 United States v. Zavala, 541 F.3d 562 (5th Cir. 2008) .................................................................................................... 55 Wagner v. Lehman Bros. Kuhn Loeb, Inc., 646 F. Supp. 643 (N.D. Ill. 1986) ............................................................................................. 39 Washington v. Hinton, No. 87663-1, 2014 Wash. LEXIS 159 (Wash. Sup. Ct. Feb. 27, 2014) ................................... 54 Whirlpool Properties, Inc. v. Director, Div. of Taxation, 208 N.J. 141 (2011) .................................................................................................................. 48 Zicarelli v. New Jersey State Commn of Investigation, 406 U.S. 472 (1972) ............................................................................................................ 33, 34 Statutes N.J.S.A. 52:13-1................................................................................................................... 48, 49 N.J.S.A. 52:13-13....................................................................................................................... 48 Journals & Treatises Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents After United States v. Hubbell TA \s "Hubbell" New Protection for Private Papers?, 29 Am. J. Crim. L. 123 (2002).................................................................................................. 27 Richard A. Nagareda, Compulsion To Be A Witness and the Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575 (1999) .................................................................................... 22, 46, 50

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Samuel J. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27 (1986) .............................................................................................. 22, 46 William J. Stuntz, Self-Incrimination and Excuse, 88 Colum. L. Rev. 1227 (1988) ................................................................................................ 26 Constitutional Provisions N.J. Const. art. I, 7 ..................................................................................................................... 52 U.S. Const. amend. IV ........................................................................................................... passim U.S. Const. amend. V............................................................................................................. passim U.S. Const. art. VI......................................................................................................................... 48

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PRELIMINARY STATEMENT Defendant, William Stepien, respectfully submits this memorandum of law and the accompanying Certification of Kevin H. Marino (Marino Certification) in opposition to the motion of the New Jersey Legislative Select Committee on Investigation (the Committee) to enforce its subpoena to Mr. Stepien dated January 27, 2014 (the Subpoena).1 Mr. Stepien enjoys a constitutional and common law right not to incriminate himself. That right is well understood to protect all persons including innocent men who might otherwise be ensnared by ambiguous circumstances from compulsory acts of production that (a) are testimonial; and (b) might furnish a link in the chain of evidence needed to convict them. An act of production is itself testimonial (and thus self-incriminating) when it signals and concedes the existence, location, and authenticity of documents and things that might furnish such an evidentiary link. By providing the subpoenaed materials, a party facing the possibility of criminal prosecution effectively testifies that those items exist, are in his possession, and are what they purport to be. His act of production thus entails the communication of the thought process by which he decided what to produce: he has processed the subpoenas description of the items sought and, by producing them, has become not a passive source of information but a witness testifying against himself. Thus, compelling a testimonial act of production by a person in the throes of a criminal investigation and that, against all odds, is precisely where Mr. Stepien finds himself undoubtedly violates that persons right against self-incrimination. Here, the Subpoena blithely directs Mr. Stepien to produce five categories of documents and things regarding the closure of access lanes to the George Washington Bridge in A true and correct copy of the Subpoena is annexed to the Marino Certification as Exhibit 1. Unless otherwise specified, all exhibits referenced in this Memorandum of Law are annexed to the Marino Certification.
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September 2013 (the Lane Closures) for the sixteen-month period from September 1, 2012, to the present, and two categories of private property he used during the same period (calendars, day planners, notes and/or diaries and smartphones, tablets, cellular phones, and personal digital or data assistants, or any other similar device). In so doing, the Subpoena overtly seeks to compel a testimonial act of production. Its first five categories call for the production of all communications Mr. Stepien had regarding the Lane Closures; all documents and records he exchanged regarding the Lane Closures; all of his telephone records regarding the Lane Closures; all of his documents evidencing electronic communications regarding the Lane Closures; and all of his video and audio recordings and voice mails regarding the Lane Closures. By its very terms, the Subpoena thus directs Mr. Stepien to examine virtually every document and thing in his possession, to determine which of those are, in his estimation, documents and things regarding the Lane Closures, and to produce them as such. Although the Committee argues that the Subpoena only requests that Mr. Stepien provide specified information in his possession with respect to the Lane Closures, it in truth compels him to specify and provide the information in his possession regarding the Lane Closures that is, to use his own mental processes to locate, identify, and authenticate the documents and things reflecting such information. With all respect due the Committee, it would be difficult to conjure a subpoena that more clearly calls for a testimonial act of production. Beyond disputing that its Subpoena compels testimony, the Committee makes the yet more absurd argument that Mr. Stepien cannot rely on the Fifth Amendment and its state law analogue because he is not in any real danger of incrimination. To be sure, Mr. Stepien is an innocent man. But his innocence by no means ensures, or even suggests, that he will not be ensnared by ambiguous circumstances if forced to comply with the Subpoena. Indeed,

Committee Chairman John Wisniewski personally thrust Mr. Stepien into the vortex of the Lane Closure controversy by releasing his innocuous emails to the press in tandem with the incendiary emails of two state employees. Thereafter, Chairman Wisniewski seizing every opportunity to meet the press and face the nation to discuss his burgeoning investigation has boldly proclaimed that the Lane Closures at the heart of the Subpoena involved criminality, and has repeatedly expressed his particular interest in Mr. Stepien. Not surprisingly, the Chairmans public pronouncements led quickly to the institution of a federal criminal investigation of the same subject matter and of Mr. Stepien himself. Having pre-determined the outcome of his Committees investigation and successfully sparked a parallel grand jury probe, the Chairman clearly hopes these investigations will lead to criminal charges.2 Moreover, Mr. Stepien is undeniably a subject, if not a target, of both inquiries. In recent weeks, federal criminal investigators have made their interest in him plain, traveling to his home and importuning his landlord and presumably others to provide information about his conduct and character, their FBI and DOJ Criminal Investigator calling cards leaving no doubt as to their intentions. Under the circumstances, to suggest that Mr. Stepien is not at risk of incrimination is to defy common sense.

According to Chairman Wisniewski, the Committees Special Counsel has met with the United States Attorney investigating the Lane Closures and other alleged acts of governmental abuse and, based on that meeting, is comfortable that this investigation can proceed on a parallel track. (Exhibit 37, Feb. 2, 2014 Meet The Press Transcript, at 27.) That a politician armed with subpoena power and spoiling for higher office particularly one who has openly prejudged his investigation and whose counsel is consulting with federal prosecutors overseeing a similar investigation can so freely disclose the information his legislative committee obtains by subpoena and provide the press with real-time updates on that evidence, conduct that would violate Rule 6(e) of the Federal Rules of Criminal Procedure if engaged in by the United States Attorney proceeding by grand jury subpoena, is a problem for another day.

Beyond its baseless core arguments that the Subpoena does not call for a testimonial act of production and that Mr. Stepien is not at risk of incrimination the Committee desperately asks the Court to disregard Mr. Stepiens constitutional and common law rights because recognizing them would frustrate criminal investigations, thereby facilitating a potential attack on the United States. That national security concern is unfounded. For more than two centuries, our federal and state governments have applied the privilege against self-incrimination to prevent the kind of compelled testimony sought here without imperiling the nation. While the Committees work is no doubt important, it seems safe to assume that the Union will not crumble if Chairman Wisniewski is denied the ability to compel Mr. Stepien to testify against himself. Finally, the Committee argues that New Jerseys broad common law privilege against self-incrimination does not apply here because an individual loses his privacy interest in an email or text message as soon as it is sent. No court federal or state has ever adopted that argument, which would make the constitutional proscription of unreasonable searches and seizures a dead letter. Instead, federal courts routinely recognize that individuals have a

reasonable expectation of privacy in their e-mail and other private communications. More importantly, New Jersey has interpreted an individuals privacy interests more expansively than these federal courts, finding that our state constitution protects against the forced disclosure of phone records, e-mails, and other documents even when they are disclosed to third parties. This action raises important issues, but not difficult ones. Few rights enshrined in the constitution and laws of our nation and our state are as well settled or essential to our system of government as the privilege against self-incrimination and the right of privacy. The Committee would transgress those sacred rights by compelling Mr. Stepien, a man at risk of incrimination,

to commit a testimonial act of production and to produce his private communications and other personal information. Its attempt to do so should be roundly rejected. STATEMENT OF FACTS A. The Transportation Committees Investigation Into The Lane Closures And Chairman Wisniewskis Mischaracterization Of Mr. Stepiens Involvement In Those Lane Closures.

The Lane Closures, by which the Port Authority reduced the number of access lanes from Fort Lee to the George Washington Bridge from three to one, occurred between September 9 and September 13, 2013. Shortly thereafter, the Assembly Transportation, Public Works and

Independent Authorities Committee (the Transportation Committee) opened a legislative inquiry into the reasons for those Lane Closures. On October 1, 2013, The Wall Street Journal published an article discussing an e-mail dated September 13, 2013, from Patrick Foye, Executive Director of the Port Authority, which reversed the decision to close the lanes. (Exhibit 2, WALL ST. J., Port Chief Fumed Over Bridge Jam, Oct. 1, 2013.) In that e-mail, Mr. Foye stated, among other things, that the hasty and illadvised decision to close the access lanes violate[d] Federal Law and the laws of both States [New Jersey and New York]. (Exhibit 3, Foye e-mail dated Sept. 13, 2013.) On or about December 12, 2013, the Transportation Committee issued document subpoenas to current and former Port Authority officials, including former Port Authority officer David Wildstein. (Exhibit 4, Dec. 12, 2013 Wildstein Subpoena.) Those subpoenas demanded documents and correspondence for the period from August 1, 2013, to the date of their issuance concerning the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. (Id.) In response to his subpoena, Mr. Wildstein produced 907 pages of redacted documents, including

e-mails and text messages. (Exhibit 5, Transcript of Jan. 9, 2014 Transportation Committee Hearing, at 9.) The other subpoena recipients produced more than a thousand additional pages. On December 30, 2013, the Transportation Committee issued a subpoena ad testificandum to Mr. Wildstein, demanding that he appear and testify before that committee on January 9, 2014. (Exhibit 6, Dec. 30, 2013 Wildstein Subpoena.) On January 8, 2014, one day before Mr. Wildstein was to appear at the hearing, twentytwo of the approximately two thousand pages of documents produced to the Transportation Committee were released to the press. (Exhibit 7, The Record, Christie stuck in a jam over GWB lane closings, Jan. 8, 2014; Exhibit 8 (documents released on January 8).) Those twentytwo pages consisted primarily of e-mails and text messages between and among (i) Bridget Anne Kelly, Governor Chris Christies then-Deputy Chief-of-Staff; (ii) Mr. Wildstein; and (iii) William Baroni, the Port Authoritys Deputy Executive Director. Most notable among those pages was an e-mail from Ms. Kelly to Mr. Wildstein dated August 13, 2013, stating: Time for some traffic problems in Fort Lee. (Exhibit 8.) Also included in the twenty-two pages were two e-mail exchanges between Mr. Wildstein and Mr. Stepien concerning articles that appeared in the press after the Lane Closures had occurred.3 (Exhibit 9.) Concurrent with the publication of those documents, Chairman Wisniewski held a press conference in which he described the twenty-two published pages as shocking and outrageous and commented extensively on their criminal and other implications: The Committee states that it already has evidence that Mr. Stepien received information related to the reassignment of the access lanes, even while that reassignment was ongoing (and not only after it had happened, as Mr. Stepien contends). (Committee Br. at 9 (emphasis supplied).) Mr. Stepien has never contended that he only learned of the Lane Closures after the lanes were re-opened; indeed, e-mails released to the public make clear that he received notice of the closures while they were ongoing. To the extent the Committee believes he has denied contemporaneous knowledge of the Lane Closures, it is mistaken.
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[A]s you all recall, the e-mail that Pat Foye sent . . . said that federal and state laws were broken here. . . . [S]ome of the federal laws that were broken were the Bridge Act. . . . [W]ere looking into what state laws were broken. If . . . laws have been broken, [law enforcement agencies] should, and I would encourage them to look at this, because it seems to me that at least some laws have been broken. (Exhibit 10, Transcript of Press Conference by Committee Chairman John S. Wisniewski and Senate Majority Leader Loretta Weinberg on Jan. 8, 2014, at 3:5-10, 4:7-10.) Chairman Wisniewski further made clear that, although the Transportation Committee had initially focused on the Lane Closures, its investigation now extended far beyond that, to include any cover-up and any potential abuse of government power: [I]f this could happen at the Port Authority, how else has government been abused for the political advantage of the Governor in other agencies? Has the Division of Revenue been utilized improperly? Has the Department of Community Affairs been . . . utilized improperly? And so the questions go on and on. . . . [A]nd so it begs the question, what else is out there that we dont know? [W]hat else has happened that we havent found out? What else is going on that we dont know about? (Id. at 5:7-24, 7:23-25.) Chairman Wisniewski also suggested that Mr. Stepien was involved in the Lane Closures although the documents published to coincide with the press conference did not evidence such involvement. (Id. at 2:11-14 ([W]ere going to have to get answers to the questions that have been put at our feet today. What was Bridget Kellys involvement? . . . . [W]hat was Mr. Stepiens involvement?); id. at 6:14-16 (stating that individuals involved in [Mr. Christies] campaign were all involved, either before, during, or after).) Chairman Wisniewski highlighted Mr. Stepiens alleged involvement again at a press conference the following day. (Exhibit 12, Transcript of Jan. 9, 2014 Press Conference, at 2:11-14 (I think we have a list of people that grows exponentially each time we get additional information. We need

to hear from Bridget Kelly. We need to hear from Mr. Stepien.); id. at 2:21-22 (Turn over the e-mails from Bridget Kelly. Turn over the e-mails from Bill Stepien.); id. at 3:6-16 (I think Bridget Kelly . . . is a logical individual to bring before the committee. I think that we need to hear from Mr. Stepien. I mean, clearly, these are two people that the Governor was most outraged at, where he terminated Bridget Kelly and revoked his nomination of Mr. Stepien as state GOP Chairman and took away his consulting contract with the RGA. . . . [S]ince they are the focus of the Governors ire in this, it would be appropriate for us to ask them questions about what they knew, . . . who they discussed it with, . . . was the Governor involved, and . . . who knew what when.).) On January 9, 2014, Mr. Wildstein appeared before the Transportation Committee but refused to testify. In connection with that hearing, the Transportation Committee voted to, and did, make the documents produced pursuant to the December 2013 subpoenas part of the public record. (Exhibit 5, Transcript of Jan. 9, 2014 Transportation Committee Hearing, at 9-11.) The Transportation Committee posted those many documents on the Legislatures website the following day; none suggested that Mr. Stepien had knowledge of the reasons for the Lane Closures, much less involvement in the decision to close them. In the ensuing days, Chairman Wisniewski continued to publicize his belief that the Lane Closures entailed criminal conduct, stating, [p]ublic resources the bridge, police officers all were used for a political purpose, for some type of retribution, and that violates the law. (Exhibit 13, CNN, NJ Democrat lawmaker on traffic scandal: I do think laws have been broken, Jan. 12, 2014.) Chairman Wisniewski repeated that opinion when appearing on Face the Nation, stating, when you use the George Washington Bridge for . . . a political payback, that amounts to using public property for a private purpose or for a political purpose, and thats

not legal. And so that constitutes a crime. (Exhibit 14, Transcript of Chairman Wisniewskis Face the Nation interview broadcast on Jan. 12, 2014.) B. Formation Of The New Jersey Select Legislative Committee And Its WideRanging Investigation Into Perceived Abuses of Government Power.

On January 16, 2014, the New Jersey General Assembly passed a resolution creating the Assembly Select Committee on Investigation (the Assembly Committee), to be chaired by Assemblyman Wisniewski, and charged it with investigating concerns about abuse of government power or an attempt to conceal an abuse of government power, including, but not limited to, the reassignment of access lanes in Fort Lee, New Jersey to the George Washington Bridge. (Exhibit 15, AR-10 2.) The resolution gave the Assembly Committee the

investigative powers conferred by Chapter 13 of Title 52 of the Revised Statutes of New Jersey, along with the power to report possible violations of any law, rule, regulation, or code to appropriate federal, State, or local authorities. (Id., AR-10, 3a(8).) The Senate passed a similar resolution that same day creating the Senate Select Committee on Investigation. (Exhibit 16, SR-1.) Upon convening on January 16, 2014, the Assembly Committee passed an organizational resolution authoriz[ing] Chairperson John S. Wisniewski to issue, in accordance with the Code of Fair Procedure, subpoenas under his signature to compel the production of relevant documents and other information, [and to] compel the attendance and testimony before the Committee of any individuals with information relevant to the investigation. (Exhibit 17, Transcript of Jan. 16, 2014 Assembly Committee Meeting, at 5.) That resolution passed over the objection of some Committee members to its grant of unilateral[] subpoena power to the Chairperson effectively creating a committee of one that dispensed with the need to com[e] before the Committee for a determination as to whether those subpoenas should be issued in the first

instance. (Id. at 5-6; see also id. at 12 ([A]ll of the procedural sections [of the resolution] are basically organized around the principle of authorizing the Chairperson to do this, and that, and the other thing. And with the greatest respect, Mr. Chairman, it seems to me thats not a democratic process; thats a series of decisions by fiat.).) At the Assembly Committees meeting on January 16, 2014, Chairman Wisniewski once again confirmed what he had already told the press: that the Committees investigation was not confined to the Lane Closures, but rather was designed to find out where the abuse of power began and how deep it went. (Id. at 22-23.) The Chairman stated that the investigation had no predetermined destination, would not exclude anything, and would follow the facts wherever they may lead us. (Id. at 4.) To that end, the Assembly Committee issued twenty wide-ranging subpoenas. One of the subpoenas was addressed to the Office of the Governor and another to Governor Christies campaign committee, Chris Christie for Governor, Inc. (Exhibit 18, Jan. 16, 2014 Subpoena to the Governors Office; Exhibit 19, Jan. 16, 2014 Subpoena to Chris Christie for Governor, Inc.) The remaining subpoenas were sent to individuals, including Mr. Stepien, associated either with the Port Authority, the Governors campaign committee, or the Governors office. (Exhibit 20, MSNBC, Whos who on the Bridgegate subpoena list, Jan. 17, 2014.) Unlike the subpoenas issued in December 2013, the January 2014 subpoenas were not limited to the period beginning on August 1, 2013, but extended back an additional eleven months. (See Exhibit 21, Jan. 16, 2014 Subpoena to William Stepien.) On January 18, 2014, Dawn Zimmer, the Mayor of Hoboken, alleged that the Christie administration had withheld Sandy relief funds due to her failure to support a real-estate project favored by the administration. (Exhibit 22, WALL ST. J., Hobokens mayor is accusing New

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Jersey Gov. Christies office of retribution, Jan. 18, 2014.) Specifically, Mayor Zimmer alleged that Lieutenant Governor Kim Guadagno and Department of Community Affairs Commissioner Richard Constable informed her that Hoboken would not receive Sandy aid until she supported a development project proposed by a client of Port Authority Chairman David Samson, a close confidante of the Governor. (Id.) According to commentators, Mayor Zimmers allegations raised the specter of a number of potential crimes, not the least of which could be extortion. (Exhibit 23, NJSpotlight, Analysis: U.S. Attorneys Trail Shows Hoboken Charges More Serious, Feb. 5, 2014 (The idea that the state would hold up the administration of federal funds unless the governors office could exact some benefit for itself or for a client of Samson is very serious. There were countless criminal indictments made on a lot less than that during Christies years as U.S. Attorney.).) Appearing on the national new program Meet the Press, Chairman Wisniewski seized the opportunity to comment on these allegations and confirmed that the Committees investigation encompassed them as well. (See Exhibit 24, Transcript of Jan. 9, 2014 broadcast of Meet the Press ([C]learly, the allegation that [Mayor Zimmer] was asked to support a redevelopment project where there was funding from the [P]ort [A]uthority, which were investigating, in turn for her getting money for her municipality raises serious allegations. We dont know where it goes. We dont know if theres more to it. But I think its something the committee has to consider as part of the overall investigation.).) On January 27, 2014, the Assembly Committee passed the torch of its expanding investigation to the Committee, which was formed pursuant to concurrent resolutions of the Assembly and the Senate authorizing it to investigate all aspects of the finances, operations, and management of the Port Authority of New York and New Jersey and any other matter raising

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concerns about abuse of government power or an attempt to conceal an abuse of government power including, but not limited to, the reassignment of access lanes in Fort Lee, New Jersey to the George Washington Bridge. (Exhibit 25, ACR-10 2; Exhibit 26, SCR-49 2.) The joint concurrent resolutions, like the resolutions that preceded them, gave the Committee the investigative powers conferred pursuant to chapter 13 of Title 52 of the Revised Statutes, as well as the power to report possible violations of any law, rule, regulation, or code to appropriate federal, State, or local authorities. (Exhibit 25, ACR-10 3a(1),(8); Exhibit 26, SCR-49 2.) Chairman Wisniewski immediately confirmed that the Committees investigation was both wide-ranging and evolving:

[W]e dont know what the next set of . . . subpoenas . . . will deliver for us. We dont know where it will take us. (Exhibit 27, Transcript of Jan. 27, 2014 Committee Meeting, at 19-20.) I dont know what allegations and concerns may present themselves as we proceed. I do know the allegations and concerns that are in front of us now. An e-mail was issued by a Deputy Chief of Staff that clearly was inappropriate, clearly abused her authority, and then there was an effort to conceal that. . . . We dont know why, we dont know how, we dont know who else was involved. And theres a lot of work to be undertaken just to get to those answers. (Id. at 21.) We have our work cut out for us. But we also dont know where that work will lead us. We dont know if an e-mail that is a predecessor to the e-mail that closed the lanes leads us somewhere else in the Governors Office, leads us into a political campaign, leads us into some other area we havent anticipated. (Id.) [W]ell go wherever the documents and the witnesses take us. (Id. at 22.)

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To continue pursuing this wide-ranging and ever-expanding investigation, the Committee reissued the same subpoenas previously issued on January 16, 2014, with the same return date. (Id. at 1.) C. The Parallel Federal Investigations.

At least three federal investigations have been launched in the wake of the Transportation Committees initial probe. At the same time the Transportation Committee was investigating the Lane Closures, the United States Senate Committee on Commerce, Science, and Transportation (the Senate Transportation Committee) voiced its own serious concerns about events that led to the Port Authoritys unannounced lane closures on the George Washington Bridge in September 2013. (Exhibit 28, Letter from Sen. Rockefeller dated Dec. 16, 2013.) Those concerns prompted the Senate Transportation Committee to demand a comprehensive investigation of the Port Authoritys actions. (Id.) On or about January 14, 2014, the website NJ.com revealed that the federal Inspector General had ordered an audit of the Governors use of $25 million in Sandy relief funds for a tourism ad that featured the Governor and his family. (Exhibit 29, NJ.com, U.S. to investigate Gov. Christies post-Hurricane Sandy Stronger Than the Storm ad campaign, Jan. 14, 2014.) At or about that time, the United States Attorneys Office for the District of New Jersey confirmed that it had opened a grand jury investigation into the Lane Closures and that it had issued subpoenas in furtherance of that investigation. (Exhibit 30, N.Y. TIMES, U.S. Attorney Subpoenas Christies Campaign and New Jersey G.O.P., Jan. 23, 2014.) On January 23, 2014, The New York Times reported that Mayor Zimmer had met with representatives of the U.S. Attorneys Office concerning her allegations, and had supplied evidence corroborating her account. (Exhibit 31, N.Y. TIMES, U.S. Attorney Said to Meet with Hoboken Mayor, Jan. 20, 13

2014.) On February 24, 2014, The Star-Ledger reported that Fort Lee Mayor Mark Sokolich had also met with U.S. Attorneys Office representatives in Newark to discuss the circumstances of the Lane Closures. (Exhibit 32, The Star-Ledger, Fort Lee Mayor Mark Sokolich met with U.S. Attorneys Office, Feb. 24, 2014.) And on February 27, 2014, The Star-Ledger reported that Michael Drewniak, the Governors long-time spokesman and current press secretary, met with federal prosecutors for several hours to answer questions about his role in the September lane closings. (Exhibit 33, The Star-Ledger, Bridge scandal: Christies press secretary meets with federal prosecutors, Feb. 28, 2014.) D. The Governor Severs Ties With Mr. Stepien And The Committee Insists That He Comply With A Subpoena That Is Unconstitutional On Its Face. 1. The Governors Immediate Severance Of Ties With Mr. Stepien Upon Publication Of The Twenty-Two Pages Of Documents On January 8, 2014.

Mr. Stepien served as Governor Christies Deputy Chief of Staff from the beginning of his first term in office until April 26, 2013, when he left the administration to manage the Governors re-election campaign. On Tuesday, January 7, 2014, Governor Christie announced that Mr. Stepien, who had already been retained as a consultant to the Republican Governors Association, would become the Chairman of the New Jersey Republican Party. (Exhibit 34, The Star-Ledger, Chris Christie campaign manager to lead N.J. Republican Party, Jan. 7, 2014.) That day, Governor Christie said, Bill Stepien is the best Republican operative in the country, and New Jersey Republicans will be fortunate to have him leading our party. (Id.) Within hours of Chairman Wisniewskis January 8, 2014 press conference, however, Governor Christie asked Mr. Stepien not to seek the chairmanship of the New Jersey Republican Party and terminated his consultancy with the Republican Governors Association, thus severing all ties with him. (Exhibit 11, Transcript of Jan. 9, 2014 Christie Press Conference, at 13 (By

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7:00 yesterday evening, Bill Stepien was asked to leave my organization.).) During a press conference held on January 9, 2014, the Governor recounted Mr. Stepiens representation that he knew absolutely nothing about the closures, and acknowledged that the two e-mails involving Mr. Stepien that surfaced on January 8, 2014, were well after the fact. (Id. at 17; see also id. at 19 (What [Mr. Stepien] told me at the time is not contradicted by the emails).) But

undoubtedly due to their inclusion in the handful of inflammatory documents produced on January 8, 2014, the Governor said that the tone and behavior and attitude of callous indifference reflected in those e-mails had caused him to lose [his] confidence in Mr. Stepiens judgment. (Id. at 2.) Indicating that he had not spoken with Mr. Stepien before severing ties with him, the Governor noted that Chairman Wisniewski said pretty clearly yesterday that he intends to ask Bridget Kelly and Bill Stepien to testify and stated that he did not want to get in the middle of that. (Id. at 19.) 2. The Federal Investigation Of Mr. Stepien.

On Friday, January 17, 2014, FBI Special Agent Arthur Durrant telephoned Mr. Stepien on his cell phone. (Marino Certification, 39.) Mr. Stepien informed Mr. Durrant that he was represented by counsel and asked Mr. Durrant to speak with his attorney, Kevin Marino. (Id.) Shortly thereafter, Assistant United States Attorneys Rachel Honig and Lee Cortes called Mr. Marino and expressed an interest in speaking with Mr. Stepien. (Id., 40.) Later that day, Mr. Marino declined that invitation during a call with Mr. Cortes. (Id.) In mid-February, 2014, Agent Durrant and DOJ Criminal Investigator James Otten visited Mr. Stepiens Mercer County home in his absence, questioned his landlord about his conduct and character was he married, was he a rowdy tenant, did he pay his rent on time and left behind their calling cards, which prominently identified them as criminal investigators

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and left no doubt as to the nature of their investigation. (Id., 41.) The landlord subsequently provided those calling cards to Mr. Stepien, who turned them over to counsel. (Exhibit 38, Calling Cards.) 3. The Subpoena To Mr. Stepien.

As presaged by Chairman Wisniewskis comments at the January 8, 2014, press conference, Mr. Stepien was among the twenty individuals and institutions subpoenaed on January 16, 2014. The subpoena demanded that, for the period September 1, 2012 to the present, Mr. Stepien produce the following documents and things: 1. All communications of any kind, including, but not limited to, any correspondence, notes, documents, electronic mail transmissions, text messages, Blackberry Messenger messages (a/k/a BBM messages), any and all instant messages or other electronically stored data or information, including, without limitation, any instant messages sent via any web or cellular phone based messaging systems, whether exchanged via use of a personal computational device, including without limitation devices commonly known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, and exchanged between you and any other person or entity, whether used by you in a business, personal, or any other capacity, between September 1, 2012 and the present date regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. 2. All documents and records of any kind, including, but not limited to, any correspondence, notes, documents, electronic mail transmissions, text messages, Blackberry Messenger messages (a/k/a BBM messages), any and all instant messages whether sent via a personal computational device or cellular phone via any and all web or cellular phone based messaging systems, any other electronically stored data or information which is currently stored on any and all personal computational devices in your possession, dominion, or control, including, without limitation, devices commonly known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, exchanged between you and any other person or entity, whether used by you in a business, personal, or any other capacity, between September 1, 2012 and the present date regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. 3. All documents of any kind whatsoever sufficient to show the date, time, originating and receiving telephone number, originating cell site and sector, and duration for all incoming and outgoing calls for any phone number associated 16

with you in your personal capacity or in your capacity as an employee of the State of New Jersey, or any other capacity, between September 1, 2012 and the present date regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. 4. All documents of any kind whatsoever evidencing electronic mail communications sent via any and all personal computational devices in your possession, dominion, or control, including without limitation devices commonly known as desktops, laptops, smartbooks, tablets, smartphones, cellular phones, or iPads, whether used by you in a business, personal, or any other capacity, relative to any and all communications between September 1, 2012 and the present date regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. 5. All video and audio recordings, and all voice mails, regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. 6. All calendars, day planners, notes, and/or diaries from September 1, 2012 to the present. 7. All smartphones, tablets, cellular phones, and personal digital or data assistants, or any other similar device used by you at any time from September 1, 2012 to the present, whether used by you in a business, personal, or any other capacity. (Exhibit 21.) On January 27, 2014, the Committee issued an identical subpoena to Mr. Stepien. (Exhibit 1.) 4. Mr. Stepiens Detailed Objections to the Subpoena and the Committees Refusal to Withdraw It.

On January 31, 2014, Mr. Stepiens counsel sent the Committee a 19-page letter detailing the Subpoenas deficiencies under the United States Constitution, the New Jersey State Constitution, and New Jersey common law. (Bocchi Certification, Exhibit L.) On February 3, 2014, Mr. Stepiens counsel and Special Counsel to the Committee convened a telephone conference to discuss those objections. On that call, the Committees lawyers insisted that the Subpoena did not run afoul of federal constitutional or New Jersey law, but refused to explain their position. (Bocchi Certification, Exhibit Q, Feb. 18, 2014 letter.) The Committee expressed its willingness to prioritize the production of certain documents in 17

response to the Subpoena while holding the remainder in abeyance, but declined to withdraw the Subpoena. (Bocchi Certification, Exhibit N, Feb. 6, 2014 letter.) On February 4, 2014, the Special Counsel wrote to Mr. Stepiens counsel, informing him that, at this time, Mr. Stepien need only provide phone records and calendar entries with respect to thirty-two individuals currently or formerly associated with the Governors Office and the Port Authority. (Bocchi Certification, Exhibit M, Feb. 4, 2014 letter.) The letter confirmed that the Committee will not be withdrawing the subpoena to Mr. Stepien. (Id.) On February 10, 2014, the Committee voted along party lines to reject Mr. Stepiens objections to the Subpoena and directed its Special Counsel to take all steps necessary to compel compliance with it. (Bocchi Certification, Exhibit O.) On February 11, 2014, the Committee informed Mr. Stepien of its determination that his objections to the Subpoena as articulated in [his January 31, 2014 letter] are invalid, but again refused to state why that was so. (Bocchi Certification, Exhibit P, Feb. 11, 2014 letter.) The Committee also indicated that it would give Mr. Stepien a final date February 18, 2013 by which to comply with the Subpoena. (Id.) On February 18, 2014, Mr. Stepien informed the Committee that he would not comply with the Subpoena for the reasons expressed in his prior submission, renewed his request that the Committee withdraw the Subpoena, and requested that if the Committee was unwilling to do so, the parties confer with the Court about an orderly way of seeking judicial resolution of their impasse. (Bocchi Certification, Exhibit Q.) The following day, the Committee instead instituted this action against Mr. Stepien (and a companion case against Ms. Kelly) by making ex parte application for an Order to Show Cause why the Court should not (i) enforce the Subpoena as modified by its February 4, 2014 letter

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(Compl. 1); and (ii) declare that Mr. Stepien has failed, without justification, to produce documents in accordance with the subpoena. (Compl., Prayer for Relief, A.) This response follows. LEGAL ARGUMENT I. THE SUBPOENA VIOLATES MR. STEPIENS RIGHT NOT TO INCRIMINATE HIMSELF. The Committee contends that Mr. Stepien cannot avail himself of his constitutional and common law right against self-incrimination, arguing that his act of producing documents responsive to the Subpoena would not be a protected testimonial act and that he does not face a substantial and real risk of incrimination. Those assertions reflect the Committees

fundamental misapprehension of the act of production doctrine at the heart of this case. A. The Principles Underlying The Fifth Amendment And Its Protection Of The Innocent And Guilty Alike.

The Fifth Amendment to the United States Constitution provides that no person . . . shall be compelled in any criminal case to be a witness against himself. One of that constitutional guarantees basic functions is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances. Ohio v. Reiner, 532 U.S. 17, 21 (2001) (emphasis and alteration in original; internal quotation marks omitted); see also United States v. Scala, 432 F. Supp. 2d 403, 407 (S.D.N.Y. 2006) (explaining that the risk of ensnare[ment] exists regardless of whether the witness in fact is guilty of anything.). Indeed, it has long been held that the privilege protects the innocent as well as the guilty, and is therefore properly invoked by one who, like Mr. Stepien, denies all culpability. Reiner, 532 U.S. at 18; see also Carter v. Kentucky, 450 U.S. 288, 300 (1981) (recognizing that the Fifth Amendment privilege against self-incrimination is often a protection to the innocent (internal quotation marks omitted));

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Quinn v. United States, 349 U.S. 155, 162 (1955) (noting the Courts consistent recognition of the privilege as one of great value that affords a protection to the innocent though a shelter to the guilty). The United States Supreme Court has explained why the Fifth Amendment affords shelter to the guilty and the innocent alike: [The privilege against self-incrimination] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of selfaccusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of selfdeprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent. Murphy v. Waterfront Commn of New York Harbor, 378 U.S. 52, 55 (1964) (internal quotation marks and citations omitted). 2. The Extensive Protections Afforded by the Act of Production Doctrine.

It is well settled that, in addition to proscribing compulsory oral testimony that might tend to incriminate the speaker, the Fifth Amendment protects innocent individuals against the forced compulsion of acts that might tend to incriminate them. The first Supreme Court decision to explicitly recognize this act of production aspect of the Fifth Amendment privilege was Boyd v. United States, 116 U.S. 616 (1885). The defendants in Boyd were charged with importing plate glass without paying customs duties. Id. at 617. To prove the quantity and value

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of the glass, the government moved, pursuant to a statute requiring compliance on penalty of confessing its allegations, for an order requiring the defendants to produce an invoice of the glass. Id. at 618-19. The defendants produced the demanded invoice but objected to its

introduction at trial on the grounds that it was compelled in violation of their Fourth Amendment right against unreasonable searches and seizures and their Fifth Amendment right against compelled self-incrimination. Id. at 618. The Supreme Court agreed with the defendants and struck down the statute compelling the production as unconstitutional, finding that it authorized the invasion of [an individuals] indefeasible right of personal security, personal liberty and private property, the very essence of constitutional liberty and security at the heart of the Fourth and Fifth Amendments. Id. at 630. The Court reasoned that a contrary result would have offended the founding fathers recognition that the social utility of broad evidentiary searches would be more pernicious to the innocent than useful to the public. Id. at 629 (quoting Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765)). Having fused the privacy interests underlying the Fourth and Fifth Amendments, the Court concluded that a compulsory production of the private books and papers of the owner of goods . . . is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure and an unreasonable search and seizure within the meaning of the Fourth Amendment. Id. at 63435. Thus, under Boyd, the Fifth Amendment prohibited an individual from being compelled to furnish his private books and papers to be used in evidence against him. Id. at 633; see also Greenbaum v. United States, 280 F. 474, 481 (6th Cir. 1922) (holding that, under Boyd, it was unconstitutional to compel the defendant to produce his private books and accounts).

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In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court reconsidered Boyds privacy-based rationale for proscribing the compulsory production of ones property. The Court recognized that protecting personal privacy is one of the several purposes served by the constitutional privilege against compelled self-incrimination, but explained that this privacy interest was not absolute; the Supreme Courts Fifth Amendment jurisprudence since Boyd had made clear that not every invasion of privacy violate[d] the privilege. Id. at 399; see also id. at 408 (noting that the Fifth Amendment does not prohibit the compelled production of blood samples, handwriting exemplars, voice exemplars, and the donning of a blouse by the accused). That jurisprudence, noted the Court, was consistent with the balanc[e] struck by the drafters of the Fourth Amendment, in which an individuals privacy interest against unreasonable searches and seizures yielded to the superior investigative interest of the government when there was reason to believe incriminating evidence will be found. Id. at 400. The Fisher Courts observation exposed the analytical flaw that pervaded Boyd that is, its improper fusion of the Fourth and Fifth Amendments but did not otherwise discredit the privacy-based rationale underlying Boyds application of the Fifth Amendment. See Richard A. Nagareda, Compulsion To Be A Witness and the Resurrection of Boyd , 74 N.Y.U. L. Rev. 1575, 1581 (1999) (arguing that Boyd mistakenly conflated the Fourth and Fifth Amendments but that its application of the Fifth Amendment, particularly as demonstrated in Justice Millers concurring opinion, was otherwise sound); Samuel J. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 36 (1986) (noting that it was improper for Boyd to fuse the Fourth and Fifth Amendments because, while the Fourth Amendments prohibition against unreasonable searches and seizures is broad . . . but . . . not absolute, the Fifth Amendment occupies a more limited sphere [where] its prohibition is absolute.).

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Having acknowledged this balance between individual and governmental interests, Fisher clarified that the Fifth Amendment truly serves [the] privacy interests identified in Boyd where the compelled act of production is testimonial in nature. Fisher, 425 U.S. at 399; id. at 408 ([T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.). In particular, the Court explained that the act of producing documents had important communicative aspects of its own, wholly aside from the contents of the papers produced. Id. at 410. These communicative aspects included the tacit[] conce[ssion] [of] the existence of the papers demanded and their possession or control, as well as that partys belief that the papers are those described in the subpoena. Id.; see also id. at 411-12 (noting that production may implicitly admit the existence, possession, and authentic[ity] of the things produced). On the facts before it, the Court concluded that the compelled production did not rise to the level of testimony within the protection of the Fifth Amendment because the existence and location of the demanded papers were a foregone conclusion, id. at 411: the IRS was already aware of the existence and whereabouts of the requested tax documents and, on that basis, had subpoenaed them from the attorneys it knew had custody over them. Id. at 394; see also Doe v. United States, 383 F.3d 905, 913 (9th Cir. 2004) (explaining that, in Fisher, the government had prior knowledge that the documents were in the custodians possession and the government could independently confirm their existence and authenticity through the accountants who created them.). As a result, the documents production would have added little or nothing to the sum total of the Governments information. Fisher, 425 U.S. at 411. Separately, the Court noted that the production would not have authenticate[d] the requested

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documents because the taxpayer did not prepare the papers and could not vouch for their accuracy. Id. at 413. Thus, the documents would not have been admissible in evidence against the taxpayer without authenticating testimony. Id. In reaching this conclusion, the Court was careful to note that its ruling did not address a situation involving an individuals private papers. Id. at 414 (quoting Boyd, 116 U.S. at 63435). As Justice Marshall explained in his concurrence, had the Court confronted such a situation, the new but substantial[] Fifth Amendment protections safeguarded by the Court likely would have afford[ed] almost complete protection against compulsory production. Id. at 432 (Marshall, J., concurring). Indeed, Justice Marshall was hopeful that the Courts new theory, properly understood and applied, [would] provide substantially the same protection as [the Courts] prior focus on the contents of the documents [in Boyd]. Id. Justice Marshalls observations proved prescient. In United States v. Doe, 465 U.S. 605, 606 (1984), the Supreme Court reviewed a decision to quash subpoenas issued to the owner of several sole proprietorships. The subpoenas sought production of the telephone records of several of [the owners] companies and all records pertaining to four bank accounts of [the owner] and his companies; a list of virtually all the business records for two of the companies; and production of all bank statements and cancelled checks of two of [the owners] companies that had offshore accounts. Id. at 606-07. The district court held that the production violated the owners privilege against self-incrimination because the production would admit that the records exist, that they are in his possession, and that they are authentic. Id. The

Third Circuit affirmed, agreeing with the district court that turning over the documents would admit their existence and authenticity. Id. at 609. The Supreme Court deferred to these courts

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factual findings, noting their consistency with Fishers reasoning and rationale. Id. at 610611. The Supreme Court most recently applied Fishers expansive protections in United States v. Hubbell, 530 U.S. 27 (2000). In Hubbell, the Independent Counsel investigating the

Whitewater affair suspected that the defendant, Webster Hubbell, had breached a prior plea agreement by failing to produce, as promised, full, complete, accurate, and truthful information about matters relating to the Whitewater investigation. Id. at 30. The

government thereupon issued Hubbell a broadly worded subpoena calling for any and all documents reflecting, referring, or relating to eleven categories of documents concerning the defendants financial transactions, billing practices, and other activities. Id. at 41, 46. Upon Hubbells invocation of the Fifth Amendment in response to the subpoena, the government obtained an order compelling him to produce the documents pursuant to a grant of use and derivative use immunity. Id. at 31. The government subsequently used those documents to indict Hubbell for crimes unrelated to [his] plea agreement. Id. at 42. The district court dismissed that indictment, holding that it was impermissibly derived from Hubbells act of production. Id. at 32. The Supreme Court affirmed, holding that the government made impermissible derivative use of the testimonial aspects of Hubbells production. In doing so, the Court reiterated that a production has protected testimonial components when it communicate[s] information about the existence, custody, and authenticity of the produced documents. Id. at 37. The Court held that Hubbells production had these testimonial components because it was apparent from the text of the subpoena itself that the prosecutor needed [Hubbells] assistance both to identify potential sources of information and to produce those sources. Id. at 41. Given the breadth of

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the descriptions of the 11 categories of documents, the Court explained, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. Id.; see also id. at 41-42 (The assembly of literally hundreds of pages of material in response to a request for any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to an individual or members of his family during a 3-year period is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition. (internal citation omitted)). Thus, the Court concluded that, [e]ntirely apart from the contents of the documents, the production provided a testimonial catalog that could have provided the prosecution with a lead to incriminating evidence or a link in the chain of evidence needed to prosecute. Id. at 42 (internal quotation marks omitted); see also id. (It is abundantly clear that the testimonial aspect of [Hubbells] act of producing subpoenaed documents was the first step in a chain of evidence that led to this prosecution.). In other words, it was only through Hubbells truthful reply to the subpoena that the Government received the incriminating documents. Id. at 42-43; see also id. at 42 n.23 (citing, inter alia, William J. Stuntz, Self-Incrimination and Excuse, 88 Colum. L. Rev. 1227, 1228-1229, 1256-1259, 1277-1279 (1988), to highlight the conceptual link between truth-telling and the privilege in the document production context). The Court emphasized that, to furnish this testimonial catalog, it was unquestionably necessary for [Hubbell] to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena. Hubbell, 530 U.S. at 43 (internal quotation marks omitted). That use was not neutralized by the governments claim that the

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existence, location, and authenticity of the documents were a foregone conclusion because, unlike in Fisher, the government failed to show that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced. Id.; see also id. (rejecting the governments argument that a businessman such as Hubbell will always possess general business and tax records that fall within the broad categories described in this subpoena). As these cases demonstrate, the act-of-production doctrine has evolved since its inception to a broader prophylactic regime that inoculates people from being forced to contribute to their own prosecution. In re Grand Jury Subpoena Dated February 2, 2012, __ F.3d __, No. 13-403-cv, 2013 U.S. App. LEXIS 25316, at *9 (2d Cir. Dec. 19, 2013). Thus, as Hubbell reflects, while Fisher refined Boyds absolutist approach by permitting the government to compel the production of particular documents whose existence and location are known to it without violating the constitution, a subpoena that compels one to identify and produce documents that he concludes pertain to a particular subject violates the Fifth Amendment under the Fisher-Doe-Hubbell line of cases as assuredly as it did under Boyd. See Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents After United States v. Hubbell - New Protection for Private Papers?, 29 Am. J. Crim. L. 123, 191 (2002) ([T]he application of the Fifth Amendment to an individuals private papers may have returned very nearly to the level of protection that Boyd was understood to provide.). Consistent with the broad[] prophylactic regime established by the Supreme Court, lower federal courts have consistently refused to enforce subpoenas where compliance would implicitly attest to the existence, location, or authenticity of the produced documents and things. See Grand Jury Subpoena Dated February 2, 2012, 2013 U.S. App. LEXIS 25316, at *2, 7, 9

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(noting the uncontested fact that, absent an exception, the robust act of production privilege precluded the government from demanding an individuals foreign bank account records); In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346 (11th Cir. 2012) (holding that the act-of-production privilege precluded the government from forcing a subpoena recipient to decrypt and produce the contents of a computer because the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions); United States v. Ponds, 454 F.3d 313, 325 (D.C. Cir. 2006) (holding that the government could not compel the production of documents where it lacked prior knowledge of their existence or defendants alleged possession thereof); In re Grand Jury Subpoena, 383 F.3d 905, 911 (9th Cir. 2004) (A subpoena such as this, which seeks all documents within a category but fails to describe those documents with any specificity indicates that the government needs the act of production to build its case); In re Grand Jury Subpoena Duces Tecum, 466 F. Supp. 325, 327 (S.D.N.Y. 1979) (quashing a subpoena that would have compelled the target of a grand jury investigation to be a witness against himself by forcing him to compile papers and acknowledge their existence.). B. The Subpoena Violates The Extensive Protections Afforded By the Act-ofProduction Doctrine.

In this case, the Subpoena directs Mr. Stepien to produce all communications (Request No. 1), documents and records of any kind (Request No. 2), telephone records (Request No. 3), email communications (Request No. 4), and video and audio recordings (Request No. 5) between September 1, 2012 and the present date regarding the reduction from three to one of the eastbound Fort Lee, New Jersey access lanes to the George Washington Bridge from September 9, 2013 through September 13, 2013. (Exhibit 1, Subpoena.) To compel Mr. Stepien to review his private papers and records and identify for the Committee those, if any, that relate to the Lane

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Closures is tantamount to compelling his testimony that such documents exist, that they are in his possession, and that they are authentic. Such compulsory testimony is prohibited under settled jurisprudence of the highest courts of this state and the United States. 1. The Committee Misreads Hubbell.

As shown above, the Fifth Amendment prohibits the government from forc[ing] an individual to contribute to [his] own prosecution. In re Grand Jury Subpoena Dated February 2, 2012, 2013 U.S. App. LEXIS 25316, at *9. An individual is so compelled when his act of production reveals to the government the (i) existence, (ii) custody, or (iii) authenticity of documents or things that might furnish a link in the chain of evidence needed to convict him. Hubbell, 530 U.S. at 36-37; Doe, 465 U.S. at 608 (affirming ruling that production would implicitly attest that the items the defendant produced exist, are in his possession, and are authentic). Here, by the Committees own extensive admissions, the Subpoena plainly demands that Mr. Stepien, through his act of production, provide all three protected forms of testimonial communications. In an effort to salvage the Subpoena, the Committee misreads Hubbell to say that the actof-production doctrine applies only if the defendants implicit admissions of existence, location, and authenticity are themselves incriminating. (Committee Br. at 13 (emphasis added).) That is not what Hubbell says. To the contrary, Hubbell held that [c]ompelled testimony that communicates information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory. (quoting Doe v. United States, 487 U.S. 201, 208 n.6 (1988).) That holding is consistent with the long-settled notion that the privilege against selfincrimination extends not only . . . to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the

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chain of evidence needed to prosecute the claimant for a federal crime. Hoffman v.United States, 341 U.S. 479, 486 (1951) (emphasis added); see also Blau v. United States, 340 U.S. 159, 161 (1950) (noting that the Supreme Court has, from the beginning, interpreted the Fifth Amendment to apply when testimony might furnish[] a link in the chain of evidence needed in a prosecution, and not simply when admissions by themselves would support a conviction under a criminal statute); accord In re Grand Jury Empaneled on April 6, 1993, 869 F. Supp. 298, 308 (D.N.J. 1994). On this point, Hubbell could not have been clearer. The issue in Hubbell was not, as the Committee states, whether the defendants production of documents would itself be an admission of guilt because it would confirm his failure to produce documents required by his plea agreement. (Committee Br. at 14.) The defendant had received a statutory grant of use and derivative use immunity, meaning that the government could not have used his act of production to prosecute him for crimes relating to his prior production failures even if it had wanted to. Hubbell, 530 U.S. at 41 (explaining that the government had no intention of making . . . use of respondents compelled testimony). The actual issue, as the Committee concedes in a footnote buried deep in its discussion, was whether the government made impermissible derivative use of the testimonial aspects of the production to indict the defendant for tax crimes that were unrelated to his prior production failures. (Committee Br. at 14 n.4

(emphasis added)); see also Hubbell, 530 U.S. at 42 (The use of those sources of information eventually led to the return of an indictment by a grand jury sitting in the District of Columbia for offenses that apparently are unrelated to [Hubbells] plea agreement.). The Court easily concluded that the government did make such impermissible derivative use of the production because the documents it used to secure the indictment were derived from

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Hubbells assistance both to identify potential sources of information and to produce these sources. Hubbell, 530 U.S. at 41; see also id. at 41-42 (Entirely apart from the contents of the 13,120 pages of materials that [Hubbell] produced in this case, it is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly worded subpoena categories could provide a prosecutor with a lead to incriminating evidence, or a link in the chain of evidence needed to prosecute.); Ponds, 454 F.3d at 322 (explaining that, under Hubbell, [i]f the existence or location of the item was revealed through compelled testimony, the item is derivative of the testimony and may not be used by the government against the witnessdefendant.). This assistance was protected not because it was incriminating in itself indeed, given the immunity grant, it could not have been but because it was the first step in a chain of evidence that led to [Hubbells] prosecution for crimes that had nothing to do with his possession of documents. Hubbell, 530 U.S. at 42. In this case, the act of producing documents responsive to Request Nos. 1-5 of the Subpoena, if they exist, could certainly be used to suggest that Mr. Stepien was involved in the planning or execution of the Lane Closures; to date the Committee has adduced no such evidence. The Committee asserts that Hubbell is inapplicable here because there is nothing about the mere possession of documents containing communications about the reassignment of access lanes to the George Washington Bridge that is potentially incriminating. (Committee Br. at 15.) That assertion is directly at odds with Chairman Wisniewskis prior statements about the direction of his Committees investigation and its theory of wrongdoing. The Chairman stated publicly, based on his review of the August 13th e-mail from Bridget Kelly, that laws have been broken. He pointed out that the Committee does not know if an e-mail that is a predecessor to the e-mail that closed the lanes leads us somewhere else in the Governors Office [where Mr.

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Stepien once worked], leads us into a political campaign [which Mr. Stepien ran], leads us into some other area we havent anticipated. (Exhibit 27, Transcript of Jan. 27, 2014 Committee Meeting, at 21.) He thereafter encouraged state and federal law enforcement authorities to investigate the matter. If Mr. Stepien has documents responsive to the Subpoena documents he identifies as relating to the Lane Closures acknowledging their existence, location, authenticity by supplying them to the Committee would certainly furnish a link in the chain of evidence that could be used to prosecute him. 2. The Hazards of Incrimination Are Not Trifling or Imaginary.

As shown above, Mr. Stepien is presently ensnared in a wide-ranging investigation chaired by a legislator who has already concluded that laws have been broken. (Exhibit 10, Transcript of Jan. 8, 2014 Press Conference, at 4:10.) The Committee attempts to downplay the obvious criminal hazards attending its investigation by distorting the low threshold, easily met here, for triggering the Fifth Amendments protections. Relying on Nelson v. Pilkington PLC, 385 F.3d 350 (3d Cir. 2004), the Committee contends that Mr. Stepiens risk of incrimination is not substantial and real. (Committee Br. at 9 (quoting Nelson, 385 F.3d at 371).) But Nelson and similar cases define a substantial and real threat as one that is not trifling or imaginary. Nelson, 385 F.3d at 371 (quoting United States v. Apfelbaum, 445 U.S. 115, 128 (1980)); see also Marchetti v. United States, 390 U.S. 39, 53 (1968) (The central standard for the privileges application has been whether the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.); In re Corrugated Container Anti-Trust Litig., 662 F.2d 875, 883 (D.C. Cir. 1981) (When a witness can demonstrate a fear of prosecution which is more than fanciful or merely speculative he has a claim of privilege that meets constitutional muster.); United States v. Raniere, 895 F. Supp. 699, 704-05 (D.N.J. 1995)

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(quoting the general proposition that substantial and real hazards exist when the fear of incrimination is not mere[ly] speculative or generalized); United States v. Grable, 98 F.3d 251, 255 (6th Cir. 1996) (The prospect of criminal prosecution, that is, must be more than merely trifling or imaginary.). Read in context, the Committees selective quotations demonstrate that the only instance in which an individual cannot invoke his Fifth Amendment rights is when it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly tend to incriminate. Hoffman, 341 U.S. at 488 (emphasis and alteration in original); accord Nelson, 385 F.3d at 371. This inquiry, moreover, is not undertaken in the abstract, but must be examined in the setting in which a particular question is asked. Zicarelli v. New Jersey State Commn of Investigation, 406 U.S. 472, 480 (1972) (When considering whether a claim of the privilege should be sustained, the court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner. But the context in which a question is asked imparts additional meaning to the question, and clarifies what information is sought. (footnote omitted)). Applying this standard, courts have recognized that a witness may properly invoke the privilege . . . even if the risk of prosecution is remote. Corrugated Container, 620 F.2d at 1091. The only thing that is perfectly clear in the context in which the Committee has issued the Subpoena is that any response by Mr. Stepien will have a tendency to ensnare him in the wide net the Committee has cast. That net extends not only to crimes concerning the Lane Closures themselves, but to potential crimes ranging from obstruction to conspiracy. Hoffman, 341 U.S. at 488. Moreover, the Committees investigation is not limited to the Lane Closures, but extends to any perceived abuse of government power including but not limited

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to Mayor Zimmers allegations that Sandy relief funds were used to extort approval of a development project that the U.S. Attorneys office is actively investigating. See supra, Background, Section C. Viewed in this context, Zicarelli, 406 U.S. at 480, the risk of

incrimination certainly cannot be considered trifling or imaginary. Marchetti, 390 U.S. at 53. The Committee also attempts to downplay the extent of Chairman Wisniewskis public statements, suggesting they are limited to a single comment made to CNN that does not even refer specifically to Mr. Stepien. (Committee Br. at 10.) That is not the case. Chairman Wisniewski first singled out Mr. Stepien in his January 8, 2014 press conference, questioning the extent of Mr. Stepiens involvement and, in fact, concluding that individuals involved in [Mr. Christies] campaign were all involved, either before, during or after the Lane Closures. (Exhibit 10, Transcript of Jan. 8, 2014 Press Conference, at 6:15-17.) Those irresponsible comments, made against the backdrop of a document production that included Mr. Stepiens innocuous e-mail communications, led directly to the Governors decision to sever ties with him. (Exhibit 11, Transcript of Jan. 9, 2014 Christie Press Conference, at 9 (Chairman Wisniewski said pretty clearly yesterday that he intends to ask Bridget Kelly and Bill Stepien to testify).) That decision, in circular fashion, emboldened Chairman Wisniewski to train his focus on Mr. Stepien. (Exhibit 12, Transcript of Jan. 9, 2014 Press Conference, at 3:6-16 (I think Bridget Kelly . . . is a logical individual to bring before the committee. I think that we need to hear from Mr. Stepien. I mean, clearly, these are two people that the Governor was most outraged at, where he terminated Bridget Kelly and revoked his nomination of Mr. Stepien as state GOP Chairman and took away his consulting contract with the RGA. . . . [S]ince they are the focus of the Governors ire in this, it would be appropriate for us to ask them questions about what they

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knew, . . . who they discussed it with, . . . was the Governor involved, and . . . who knew what when.).) Since then, Chairman Wisniewski has missed no opportunity to insist that the Lane Closures in which he implicated Mr. Stepien violated both state and federal law: [A]s you all recall, the . . . e-mail that Pat Foye sent . . . said that federal and state laws were broken here. . . . [S]ome of the federal laws that were broken were the Bridge Act. . . . [W]ere looking into what state laws were broken. (Exhibit 10, Transcript of Jan. 8, 2014 Press Conference, at 3:5-10.) If [laws have] been broken, . . . [law enforcement agencies] should, and I would encourage them to look at this, because it seems to me that at least some laws have been broken. (Id. at 4:710.) I do think laws have been broken. . . . Public resources the bridge, police officers all were used for a political purpose, for some type of retribution, and that violates the law. (Exhibit 13, CNN, NJ Democrat lawmaker on traffic scandal: I do think laws have been broken, Jan. 12, 2014.) [W]hen you use the George Washington Bridge for what [Ms. Kellys August 13, 2013] e-mail showed to be a political payback, that amounts to using public property for a private purpose or for a political purpose, and thats not legal. And so that constitutes a crime. (Exhibit 14, Transcript of Jan. 12, 2014 broadcast of Face the Nation.) Given the low threshold needed to invoke the Fifth Amendment and the omnipresent risk of ensnarement in the pending, wide-ranging investigations, it is not surprising that the only cases the Committee cites in which a court rejected the act-of-production privilege involve instances where the privilege did not apply for unrelated reasons or where the defendants failed to explain how the testimonial aspects of their production could increase their risk of prosecution. (Committee Br. at 11.) In Raniere, for example, the Fifth Amendment did not apply because the subpoena was directed to a corporations custodian of records. 895 F. Supp. at 707 ([A] custodian can be compelled to provide limited oral testimony[,] in addition to

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producing corporate documents. Raniere, accordingly must not only produce the documents sought in the IRS Summons he must also provide authentication testimony as to those documents.). In Bear Sterns & Co. v. Wyler, 182 F. Supp. 2d 679, 684 (N.D. Ill. 2002), the defendant failed to explain how, as a Dutch citizen residing in the Netherlands with business interests in foreign countries, he could even avail himself [of] the protection of the Fifth Amendment, let alone attempt to set forth some set of facts that could lead the court to the conclusion that a risk of self-incrimination existed. Id.; see also id. ([Defendant] asserts that, if he were to produce the documents sought in plaintiff[s] motion to compel, that act of production would incriminate him, yet he does not tender a reason why that might be so.). In Moore v. Gilead Sciences., Inc., No. 07-cv-3850, 2011 U.S. Dist. LEXIS 132408, at *19 (N.D. Cal. Nov. 16, 2011), a litigant similarly failed to explain[] how producing the documents requested . . . would be an act of self-incrimination. And in United States v. Edelson, 604 F.2d 232, 234 (3d Cir. 1979), a taxpayer asserted, in blanket form, that the Fifth Amendment privilege negate[s] ones duty to file a tax return. By sharp contrast to these cases, Mr. Stepiens counsel explained the basis for his Fifth Amendment objection to the Subpoena in a detailed, nineteen-page letter to the Committee requesting that the Subpoena be withdrawn, and has amplified that explanation in this brief and his supporting Certification. As those submissions make clear, the objections that Mr. Stepien raises extend to every category of documents and things demanded in the Subpoena because (a) each demand requires that he inform the government of the existence, location, and authenticity of documents of which it is otherwise unaware; and (b) here, as in Hubbell, there is a real and substantial i.e., not trifling or imaginary risk that the government may use this knowledge

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to forge a link in the chain evidence needed to prosecute him. That detailed showing is more than sufficient to invalidate the Subpoena. The Committees reliance on United States v. Allshouse, 622 F.2d 53 (3d Cir. 1980), is entirely misplaced; that case involved a blanket objection to the IRSs questioning of the taxpayer. Id. at 56 (emphasis added). The difference between oral questions and document demands is critical because, while [a]n unscripted interview is undefined, preventing a court from mak[ing] a reasoned assessment of privilege before particular questions have been posed, a document request lays out categories of documents requested, allowing [a] claim of privilege over all documents [to] be assessed as repeated assertions of privilege in response to each category. United States v. Bright, 596 F.3d 683, 691 (9th Cir. 2010) (internal citations omitted). Thus, although in the context of oral questioning a taxpayer has not fully litigated the privilege by issuing a general claim of privilege, the same cannot be said of a claim of privilege over documents. Id. at 692 (internal citations omitted). The Committees comparison of Mr. Stepiens risk of incrimination to that facing the defendant in Hubbell only highlights its misreading of that precedent. As explained above, the issue in Hubbell was not whether the defendant could have incriminated himself by producing documents that would have exposed his breach of a plea agreement. Of course the production could have incriminated Hubbell in that way; that was why he was granted use and derivative use immunity. Id. at 30-31. Rather, the issue was whether Hubbells production had

testimonial aspects that could have forged a link in the chain of evidence needed to prosecute him for crimes unrelated to that plea agreement. Id. at 42 (emphasis added); United States v. Marra, No. 05-cv-2509, 2005 U.S. Dist. LEXIS 23411, at *19 (D.N.J. 2005) (The Governments use of these documents [in Hubbell] eventually led to the return of an indictment

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on charges that were unrelated to the original plea agreement.). The Supreme Court held that the production had just such a protected testimonial aspect. That holding applies a fortiori here, where the requested production relates directly to the Lane Closures and to any other perceived abuse of government power. There is thus nothing in Hubbell that supports the Committees near-incomprehensible argument that the subpoena requests in Hubbell sought information that topically focused on Mr. Hubbell personally, not, as here, on an external event about which the government already knew the witness possessed information. (Committee Br. at 12 (emphasis in original).) The subpoena in Hubbell was directed personally to Hubbell and sought information about matters relating to the Whitewater investigation. (Committee Br. at 11.) Here, the Subpoena is directed personally to Mr. Stepien and seeks information about matters relating to the Lane Closures and any other perceived abuse of government power. The Committees attempt to distinguish Hubbell instead brings its similarities to this case into sharp relief. Finally, the Committee argues, irrelevantly, that Mr. Stepien advances no evidence that the [U.S. Attorneys] Office suspects him in particular of any wrongdoing. (Committee Br. at 10.)4 The Committee is wrong on the facts and the law. As a matter of fact, Mr. Stepien is under investigation by the Federal Bureau of Investigation and the U.S. Department of Justice, as evidenced by the governments telephone calls to him and his lawyer and the federal agents

Also irrelevant is the fact that the Committee has no authority to initiate a criminal prosecution. (Committee Br. at 10.) Beyond the Committees power to report possible violations of any law, rule, regulation, or code to appropriate federal, State, or local authorities, (ACR-10 3a(1),(8) (emphasis added)), and its acknowledged cooperation with the pending federal criminal investigation, the Fifth Amendment indisputably applies irrespective of the Committees ability to initiate a prosecution. See Kastigar v. United States, 406 U.S. 441, 444 (1972) ([The privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory).

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recent visit to his landlord. (Marino Certification, 39-41 & Exhibit 38, Calling Cards of FBI SA Arthur E. Durrant, III and U.S. DOJ Criminal Investigator James J. Otten.) As a matter of law, whether or not the U.S. Attorney presently suspects Mr. Stepien of a crime a fact that would not normally be known by a reviewing court, see Wagner v. Lehman Bros. Kuhn Loeb, Inc., 646 F. Supp. 643, 668 (N.D. Ill. 1986) (noting that investigations by the United States Attorney or the grand jury are secret) is irrelevant to whether a sufficient risk of incrimination exists. Nelson, 385 F.3d at 371 (noting the irrelevan[cy] of the fact that

prosecutorial authorities have stated that they do not intend to prosecute); see also In re Corrugated Container Anti-Trust Litig., 620 F.2d 1086, 1091 (5th Cir. 1980) (A witness may properly invoke the privilege when he reasonably apprehends a risk of self-incrimination, though no criminal charges are pending against him). The reasonableness of a claimed apprehension is assumed once incriminating potential is found, unless there are genuine questions about the governments legal ability to prosecute, such as the expiration of statutes of limitation. United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir. 1990). That is to say, once incriminating potential is found to exist, courts should not engage in raw speculation as to whether the government will actually prosecute. Id. 3. The Committee Cannot Identify, Locate, and Authenticate the Documents It Demands Without Mr. Stepiens Assistance.

In a true last-ditch effort, the Committee takes the incredible position that the Subpoena is not a fishing expedition or, alternatively, that it has demonstrated that it is able, with reasonable particularity, to identify the existence and location of documents responsive to the Subpoena without Mr. Stepiens assistance. (Committee Br. at 15-19.) On its face, the Subpoena is indistinguishable from the subpoena in Hubbell. For the period September 1, 2012 to the present, the Subpoena demands that Mr. Stepien scour every

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conceivable source of hard-copy and electronic media for example, all documents, records, notes, electronic mail transmissions, text messages, video and audio recordings, and voice mails for anything regarding the Lane Closures. (Subpoena Request Nos. 1-5.) The Subpoena also seeks without any substantive limitation whatsoever [a]ll calendars, day planners, notes, and/or diaries, as well as all smartphones, tablets, cellular phones, and personal digital or data assistants he used in the past year and a half. (Id., Request Nos. 6-7.) These requests are indistinguishable from those in Hubbell, which sought any and all documents regarding the defendants finances, billing practices, and related matters. Hubbell, 530 U.S. at 46-49. The Committees only basis for distinguishing its Subpoena from the one issued in Hubbell is that, while the subpoena in Hubbell sought any and all information about matters relating to the Whitewater investigation, the subpoena at issue here seeks any and all information concerning the reassignment of access lanes to the George Washington Bridge. (Committee Br. at 11, 15.) That distinction that one subpoena sought the production of all information relating to the entire investigation and the other seeks all information relating to one critical aspect of the investigation ignores the fatal flaw the subpoenas share: that each compels the subpoenaed party to use the contents of his own mind to identify the documents and things bearing upon the subject at hand. In an effort to cure the Subpoenas obvious infirmities, the Committee cites the reasonable particularity standard adopted by the Ninth and D.C. Circuits, arguing that it can easily demonstrate with the requisite reasonable particularity its prior awareness that Mr. Stepien possesses documents within the specified categories described in the subpoena requests. (Committee Br. at 17.) As a threshold matter, that statement misstates the standard the

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Committee must meet; it must not only show its awareness of the existence and location of the requested documents, but also that it can authenticate those documents without Mr. Stepiens assistance. See Doe, 383 F.3d at 912 (The authenticity prong of the foregone conclusion doctrine requires the government to establish that it can independently verify that the compelled documents are in fact what they purport to be. (internal quotation marks omitted)). The

government bears the burden of proof and must have had the requisite knowledge [of the existence, location, and authenticity of the documents in question] before issuing the summons or subpoena. Bright, 596 F.3d at 692 (emphasis added); accord Doe, 383 F.3d at 910. Here, the Committee simply cannot prove the existence, location, and authenticity of the subpoenaed documents and things including, most notably, all those regarding the Lane Closures without Mr. Stepiens assistance. The several communications that serve as the basis for the Subpoena are two e-mails from Mr. Wildstein forwarding news articles about the Lane Closures that appeared after the lanes were re-opened (Bocchi Certification, Exhibit H-I) and separate e-mails from Mr. Baroni and Mr. Wildstein forwarding the same letter from Mayor Sokolich complaining about the Lane Closures shortly before they were re-opened. (Bocchi Certification, Exhibits F-G.) These documents do not show, as the Committee contends, that Mr. Stepien knew the reasons for the lane reassignments. (Committee Br. at 18.) In fact, they show the opposite: that, of the thousands of pages produced by Mr. Baroni, Mr. Wildstein, and other Port Authority officials concerning the Lane Closures, these e-mails were the only ones the Committee could identify as potentially relevant strongly suggests that Mr. Stepien was not involved in the Lane Closures caper. See supra, Background, Section B. And even the limited facts these e-mails reflect that Mr. Stepien was made aware by Mr. Baroni and Mr. Wildstein of Mayor Sokolichs letter and news articles that discussed the Lane Closures hardly justify

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the Subpoenas demand for every detail of Mr. Stepiens daily activities for the past year and a half, and every communication he had with anyone during that time period that might concern the Lane Closures. If there were any doubt that the Committee lacks knowledge of Mr. Stepiens alleged possess[ion] [of] documents and information about the lane reassignments (Committee Br. at 18) beyond his few and innocuous communications disclosed by others, the Committee has admitted explicitly and repeatedly that it literally does not know the who, what, where, and why of the information it seeks. (Exhibit 27, Jan. 27, 2014 Committee Tr. at 21 (An e-mail was issued by a Deputy Chief of Staff that clearly was inappropriate, clearly abused her authority, and then there was an effort to conceal that. . . . We dont know why, we dont know how, we dont know who else was involved.).) Cf. Ponds, 454 F.3d at 325 (noting that the prosecutors concession that she did not know whether or not there were other documents that proved a matter in issue confirms that the government did not know whether or not documents relating to the car existed or were in [defendants] possession.). The record on this point is so extensive it is hard to believe the Committee can argue in good faith that it can identify and authenticate such documents without Mr. Stepiens assistance. After reviewing the very documents upon which the Subpoena was based, Chairman Wisniewski publicly admitted, among other things: [W]ere going to have to get answers to the questions that have been put at our feet today. What was Bridget Kellys involvement? What was Mr. Stepiens involvement? (Exhibit 10, Transcript of Jan. 8, 2014 Press Conference, at 2:11-13.) [W]e dont know what the next set of . . . subpoenas . . . will deliver for us. We dont know where it will take us. (Exhibit 27, Transcript of Jan. 27, 2014 Committee Meeting, at 19-20.) I dont know what allegations and concerns may present themselves as we proceed. I do know the allegations and concerns 42

that are in front of us know. An e-mail was issued by a Deputy Chief of Staff that clearly was inappropriate, clearly abused her authority, and then there was an effort to conceal that. . . . We dont know why, we dont know how, we dont know who else was involved. And theres a lot of work to be undertaken just to get to those answers. (Id. at 21.) We have our work cut out for us. But we also dont know where that work will lead us. We dont know if an e-mail that is a predecessor to the e-mail that closed the lanes leads us somewhere else in the Governors Office, leads us into a political campaign, leads us into some other area we havent anticipated. (Id. at 21.) [T]his is not preordained and we have no connection to Governor Christie. Were going to look to see who else in his office knew. Were going to follow the trail where it leads step by step. (Exhibit 24, Transcript of Jan. 19, 2014 broadcast of Meet the Press.) We need to find out why that e-mail was sent, who authorized the deputy chief of staff to send that e-mail, and follow those facts where they lead us. (Exhibit 35, Transcript of Jan. 20, 2014 broadcast of The Situation Room.) [T]heres a lot of questions that are not answered and all of the things were seeing just lead to more questions. (Id.) We dont have enough facts to even [get] to that conversation [about impeachment]. We need to get all the facts on the table. We need to make decisions about who knew what when. (Exhibit 36, Transcript of Feb. 3, 2014 broadcast of Face the Nation.) We need to find out the facts about who else in [the Governors] office had knowledge. How did this get authorized? We don't have any answers to those questions, and so we need to take it one step at a time. (Id.) We need to get all of the subpoenaed documents that were supposed to start receiving tomorrow and start answering some of the questions that are out there. Why did Bridget Kelly send this email that closed the lanes? Who gave her the authority to send that email? What made her believe it was okay? Theres a lot of unanswered questions that will then determine the next step the committee takes. (Id.) Obviously, the Committee needs Mr. Stepiens assistance to answer these numerous unanswered questions. (Exhibit 36, Transcript of Feb. 3, 2014 broadcast of Face the Nation.) See Hubbell, 530 U.S. at 41 (holding that the Fifth Amendment prohibited the government from

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compelling defendants assistance both to identify potential sources of information and to produce those sources). That is why the Subpoena demands that Mr. Stepien search everywhere imaginable for documents concerning the Lane Closures. To the extent Mr. Stepien possesses any responsive documents, his cognitive efforts to identify those documents would reveal to the Committee their existence and location facts about which the Committee has publicly professed its complete ignorance to date. Those efforts would also require Mr. Stepien to sift through personal notes, e-mails, and text messages whose meaning and authenticity only he could provide. See Doe, 383 F.3d at 912 (Although the government could probably

authenticate the writing on Does handwritten documents through handwriting analysis, it made little effort to demonstrate how anyone beside Doe could sift through his handwritten notes, personal appointment books, and diaries to produce what Does attorney estimates may be 4,500 documents related to the production or sale of DRAM. Such a response by Doe would provide the government with the identifying information that it would need to authenticate these documents. Does notes to himself would be difficult, if not impossible, to authenticate by anyone besides Doe.) (internal citations omitted). Thus, unlike in Fisher, where the taxpayers production added little or nothing to the Governments case, here, the demanded production adds everything to the Committees investigation. Grand Jury Subpoena, 466 F. Supp. at 327. The assistance demanded from Mr. Stepien is no less improper because the Committee has purported to modify two of the Subpoenas requests Request Nos. 3 and 6 relating to the production of phone records and calendar entries. (Committee Br. at 18 (explaining that the modifications relate only to Requests 3 and 6); Bocchi Certification, Exhibit M.) Under this purported modification, the Committee no longer asks for all phone records and calendar entries, but only those that relate to thirty-two current or former officials affiliated with the Governors

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office and the Port Authority.5 (Bocchi Certification, Exhibit M.) The Committee does not even attempt to show its awareness of the existence of phone calls and calendar entries relating to these thirty-two individuals. To the contrary, in addition to its extensive concessions that it does not know the answers to the questions it poses, the Committee concedes its ignorance by stating that, at best, it has good reason to believe that [these thirty-two individuals] also possess information concerning the lane closures. (Committee Br at 18.) Thus, not only does the Committee not know whether Mr. Stepien possesses phone records and calendar entries relating to these individuals; it does not even know whether these thirty-two individuals possess any relevant information. Nor has the Committee attempted to show how, without Mr. Stepiens assistance, it can independently authenticate the phone records and calendar entries it demands. See Doe, 383 F.3d at 912 (noting the governments inability to independently authenticate information in personal appointment books). 4. Refusing To Enforce The Subpoena Will Not Increase The Likelihood Of An Attack On Our Nation.

Unable to distinguish Hubbell and the other precedents set forth above, the Committee resorts to the remarkable argument that protecting Mr. Stepiens Fifth Amendment rights would effectively end all investigative activity, legislative or otherwise, leaving this country power[less] to prevent, among other things, a potential attack against the United States. (Committee Br. at 20.)

Elsewhere in its brief, the Committee inconsistently claims that this modification relates to records . . . focused on the access lane reassignments. (Committee Br at 23.) Even if that modification appeared in the Committees February 4, 2014 letter (it does not), it would only enhance the cognitive efforts that Mr. Stepien would need to exert to identify which among the many phone records and calendar entries demanded related to the Lane Closures.

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This parade of horribles argument stems from a parade of errors. Most fundamentally, the Committees argument fails to acknowledge that the Fifth Amendment does not limit the governments ability to conduct its own investigation. The Fifth Amendment is only implicated when the government forcibly enlists an individual in its investigative efforts, thereby compelling the individual to contribute to his own prosecution. So long as the government complies with the Fourth Amendment, it is free to exercise . . . its own investigative powers to seize evidence if it can make the requisite showing of probable cause. Nagareda, Compulsion To Be a Witness and the Resurrection of Boyd, 74 N.Y.U. L. Rev. at 1625 (Although the government may obtain the contents of incriminatory speech through the exercise of its own investigative powers, what the government may not do is to compel a person to produce incriminatory speech.); see also id. at 1627 (explaining the critical difference between the government taking evidence of its own initiative and compelling the giving of evidence by an individual); Alito, Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. at 36 (The fourth amendment is broad, covering all searches and seizures, but its prohibition is not absolute. It forbids only unreasonable searches and seizures. In addition, it is largely procedural and does not ban the use of reasonable compulsion or force. The fifth amendment privilege is quite different. It is much narrower, applying only to compelled selfincrimination. Nonetheless, within this limited sphere its prohibition is absolute.). Thus, contrary to the Committees arguments, the terrorists will not win if the Court honors Mr. Stepiens Fifth Amendment rights. The government will remain free to use the vast powers at its disposal to prevent a potential attack against this country. (Committee Br. at 20.) Moreover, it bears noting that where, as here, an individual properly invokes the act-ofproduction doctrine, the government can ask the Court to override that assertion and compel his

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production of documents by conferring a constitutionally sufficient form of immunity. Kastigar, 406 U.S. at 453 (upholding the constitutionality of a statute that conferred use and derivative use immunity); In re Grand Jury, 670 F.3d at 1349-50 (noting that the government could obtain information protected by the act-of-production privilege if it had offered and the district court granted [the subpoena recipient] constitutionally sufficient immunity). If what the Committee really wants is Mr. Stepiens testimony, rather than the chance to report possible violations of any law, rule, regulation, or code to appropriate federal, State, or local authorities, (Exhibit 25, ACR-10 3a(1),(8); Exhibit 26, SCR-49 2), it can seek to secure full use and fruits immunity for him in exchange for compliance with the Subpoena. The Committee compounds its meritless parade-of-horribles argument with the equally meritless contention that applying the Fifth Amendment as mandated by the United States Supreme Court would create a serious [state] constitutional problem by impinging on the Legislatures central and long-held power to investigate. (Committee Br. at 19.) As shown above, no such problem exists because the Fifth Amendment safeguards individual rights without impairing government functions. And to the extent safeguarding this right adds to the burden of diligence and efficiency resting on enforcement authorities, any other conclusion would seriously compromise an important constitutional liberty. In re Grand Jury, 869 F. Supp. at 307 (internal quotation marks and citation omitted). Thus, [t]he immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime. Id. (quoting Hoffman, 341 U.S. at 489-90). Beyond the fact that there is no conflict between the Fifth Amendment and the New Jersey Legislatures investigatory powers, the federal constitution is the supreme Law of the

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Land notwithstanding any Thing in the Constitution or Laws of any State to the Contrary. U.S. Const. art. VI; Spring Valley Water-Works v. Bartlett, 16 F. 615, 619 (C.C.D. Cal. 1883) ([T]he provision of the state constitution, if in conflict with [the federal constitution], disappears); S.D. Farm Bureau v. Hazeltine, 202 F. Supp. 2d 1020, 1042 (D.S.D. 2002) (Any state law and state constitutional provision which conflicts with federal law is preempted under the Supremacy Clause of the United States Constitution.). In suggesting that Mr. Stepiens Fifth Amendment rights must yield to the state Legislatures power to investigate and assuming that the Legislatures investigatory power is of a constitutional dimension the Committee has the analysis backwards: Wherever possible, a court must construe state law to conform to the federal constitution, not the other way around. See Whirlpool Properties, Inc. v. Director, Div. of Taxation, 208 N.J. 141, 172 (2011) ([W]hen a statutes constitutionality is drawn into question or placed in serious doubt, this Court should ascertain whether a construction of the statute is possible that avoids the constitutional problem.). Thus, to the extent the Committees fulfillment of the investigatory tasks assigned to it conflicts with Mr. Stepiens constitutional rights, it must rethink its manner of completing those tasks, and do so in a way that does not compromise his rights. In all events, the Committees invocation of the state constitution is puzzling because it issued the Subpoena pursuant to an enabling statute, N.J.S.A. 52:13-1, not an implicit grant of constitutional power. (Committee Br. at 5.) In this case, unlike those it cites,6 Mr. Stepien is not

See Morss v. Forbes, 24 N.J. 341, 349-52 (1957) (rejecting argument that N.J.S.A. 52:13-13 was unconstitutional because it violated the separation of powers inherent in New Jerseys constitution); In re Shain, 92 N.J. 524, 530 (1983) (rejecting argument that N.J.S.A. 40:69A-36 did not empower municipalities to conduct investigations); McGrain v. Daugherty, 273 U.S. 135, 151 & n.2 (1927) (rejecting constitutional challenge to Congresss power to compel testimony in aid of legislation).

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challenging the Committees authority to issue a subpoena pursuant to N.J.S.A. 52:13-1, only the Committees attempt to issue it in a manner prohibited by the Fifth Amendment and New Jerseys privilege against self-incrimination. Those constitutional safeguards have long been held to delimit the investigative powers of state agencies and prosecutors. See, e.g., State v. Strong, 110 N.J. 583, 595 (1988) ([T]he fifth amendment mandates the strictest scrutiny of and the strongest protections against possible prosecutorial misuse of testimony with respect to a witness who had earlier been compelled to testify under the grant of immunity. We add that our state-law privilege against self-incrimination is, if anything, more protective than the fifth amendment.); In re Addonizio, 53 N.J. 107, 128-29 (1968). Nothing in the Committees cases remotely suggests otherwise. II. THE SUBPOENA COMPELS MR. STEPIEN TO PRODUCE PRIVATE INFORMATION IN VIOLATION OF NEW JERSEYS COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION. A. New Jerseys Common-Law Privilege Against Self-Incrimination Affords Even Greater Protections Than The Act-Of-Production Doctrine.

In addition to its enshrinement in the Fifth Amendment, the privilege against selfincrimination has been an integral thread in the fabric of New Jersey common law since [its] beginnings as a state. State v. Hartley, 103 N.J. 252, 286 (1986); see also State v. Muhammad, 182 N.J. 551, 567 (2005) (New Jerseys privilege against self-incrimination, although not enshrined in the State Constitution, is deeply rooted in this States common law and codified in both statute and an evidence rule.). New Jerseys privilege against self-incrimination generally offers broader protection than its federal counterpart under the Fifth Amendment, Muhammad 182 N.J. at 568; Strong, 110 N.J. at 595 ([O]ur state-law privilege against self-incrimination is, if anything, more protective than the fifth amendment.), and that broader protection is implicated in this case. 49

That is because while the Supreme Court in Fisher re-conceptualized the privilege in 1976 to focus on the testimonial aspects of compulsory production, New Jersey adheres to the theory as originally articulated in Boyd. See In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 230 (1986) (Central to our state common-law conception of the privilege against selfincrimination is the notion of personal privacy first embodied in 1886 in Boyd); Strong, 110 N.J. at 594 n.3 (noting that, under Guarino, even the compelled production of documents that is not testimonial in character can violate a privacy interest that is also protectable under the state privilege against self-incrimination.). That theory, as explained above, recognizes an

individuals indefeasible right of personal security, personal liberty and private property to protect his private papers from forcible and compulsory extortion by the government. Boyd, 116 U.S. at 630. That recognition inheres in the federal act-of-production doctrine and may, in fact, give greater effect to the original meaning of the phrase to be a witness against [one]self. See Hubbell, 530 U.S. at 48, 54-56 (Thomas. J., concurring) (noting that Boyds implicit recognition that a witness means one who gives evidence accords with the original meaning of that term at the time the Fifth Amendment was enacted); Nagareda, Compulsion To Be A Witness, 74 N.Y.U. L. Rev. at 1658 (Properly understood in historical context, the phrase to be a witness is best regarded as synonymous with the phrase to give evidence). B. The Subpoena Demands Information In Violation Of New Jerseys Broader Privilege Against Self-Incrimination.

The Committee concedes that New Jerseys privilege against self-incrimination extends to information demanded by the Committees subpoena in addition to the act of producing such information, (Committee Br. at 20), but tries to avoid the conclusion that flows ineluctably from that concession by misrepresenting what the Subpoena, as modified, actually demands. Specifically, the Committee contends that the Subpoena specifically seeks non-personal

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emails, phone messages, and cell phone data and that, [a]s a former public official, Mr. Stepien has no recognizable privacy interest in the requested materials. (Committee Br. at 2122 (emphasis in original).) The text of the Subpoena and the Committees purported modification refute that argument. The first through fourth Subpoena requests seek all e-mails, text messages, notes and similar documents exchanged between [Mr. Stepien] and any other person or entity, whether in a business, personal or any other capacity. (Exhibit 1, Request Nos. 1-4 (emphasis added).) Similarly, Request No. 7 demands that Mr. Stepien turn over his cell phone and similar devices whether used by him in a business, personal, or any other capacity. (Id., Request No. 7 (emphasis added).) Request No. 5 demands all video and audio recordings, and all voice mails period regarding the Lane Closures, and Request No. 6 demands a blanket production of [a]ll calendars, day planners, notes and/or diaries from September 1, 2012 to the present. ( Id., Request Nos. 5-6.) The Committees purported February 4, 2014 modification of the Subpoena only confirms its pursuit of Mr. Stepiens private data. With respect to Request No. 7, the Committee acknowledges that its request demands Mr. Stepiens personal electronic devices. (Bocchi Certification, Exhibit M, Feb. 4, 2014 Committee Letter) (emphasis added). Nonetheless, the Committee does not withdraw this request, but simply holds it in abeyance. The Committee also purported to modify Request Nos. 3 and 6 (leaving the remaining requests intact) by demanding that, with respect to thirty-two named individuals, Mr. Stepien make a blanket production of all phone records and calendar entries (id.) and not, as the Committee states, phone records and calendar entries conducted in a professional capacity or specifically focused on the access lane reassignment. (Committee Br. at 23.) Underscoring the Committees request for personal

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documents and things is the fact that Mr. Stepien is no longer employed by the State, Chris Christie for Governor, Inc., or any other institution that the Committee has subpoenaed directly. Indeed, the blanket request for his phone records and calendar entries has no substantive limitation at all, meaning that Mr. Stepien must produce a record of a call any call, including a purely personal one he had with any of the thirty-two named individuals. The Committees statement that Mr. Stepien had a professional relationship with the thirty-two named individuals is not only pure speculation (Committee Br. at 23), but also fails to recognize that one may have a personal relationship with a professional contact. The Committees brief is also tellingly silent on how it can, consistent with the privacy interests at the heart of New Jerseys privilege against self -incrimination, demand that an individual produce every record of every phone call and calendar entry for thirty-two individuals for the past year and a half. This silence is undoubtedly due to the fact that New Jersey has had an established policy of providing the utmost protection for telephonic communications, State v. Hunt, 91 N.J. 338, 345 (1982), and this protection clearly extends to the records demanded here: From the viewpoint of the customer, all the information which he furnishes with respect to a particular call is private. The numbers dialed are private. The call is made from a persons home or office, locations entitled to protection under the Fourth Amendment and Article I, par. 7 of the New Jersey Constitution.... [Telephone subscribers] would [not] be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a persons life. Id. (internal quotation marks and citation omitted). The New Jersey Supreme Court recently re-affirmed the extensive privacy protections afforded phone records by extending the privacy interests identified in Hunt to location

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information held in the hands of a cell-phone provider. State v. Earls, 214 N.J. 564, 586 (2013). The Earls Court afforded these protections because this information precisely like the calendar entries demanded by the Committee (Bocchi Certification, Exhibit M, Feb. 4, 2014 Committee Letter) would reveal an intimate picture of ones daily life, including information as to where individuals are located at a point in time and with whom they choose to associate. Earls, 214 N.J. at 568. Both Hunt and Earls recognized that an individual does not lose his privacy interest simply because information in his control is disclosed or revealed to third parties. In her concurring opinion in United States v. Jones, 132 S. Ct. 945, 955 (2012), which the Earls court cited with approval, Justice Sotomayor raised the question of whether, in interpreting the Fourth Amendment in the digital age, the United States Supreme Court should likewise embrace the doctrinal shift engendered by the vast technological advances of recent years: More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the tradeoff of privacy for convenience worthwhile, or come to accept this diminution of privacy as inevitable, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith [v. Maryland, 442 U.S. 735, 749 (1979)]

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(Marshall, J., dissenting) (Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes); see also Katz [v. United States, 389 U.S. 347, 351-52 (1967)] ([W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected). Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (internal citations omitted). Last week, the Washington State Supreme Court invoked that concurring opinion in holding that its constitutional right of privacy which, like Article 1, paragraph 7 of the New Jersey Constitution, confers greater rights than the Fourth Amendment extends to text messages, even where they are recovered from a device over which [the sender] had no control. Washington v. Hinton, No. 87663-1, 2014 Wash. LEXIS 159, at *15 (Wash. Sup. Ct. Feb. 27, 2014). In announcing its ruling, the Hinton court stated the point broadly, noting that its Fourth Amendment analogue protects its citizens from governmental intrusion into affairs that they should be entitled to hold safe from governmental trespass, regardless of technological advancements. Id. at *22. The New Jersey Supreme Court has also recognized, in other contexts, that disclosure to third parties does not waive an individuals privacy rights. In State v. Reid, 194 N.J. 386, 396 (2008), the Court held that individuals have a reasonable expectation of privacy in [i]nternet subscriber information, even though this information is exposed to third parties. In State v. McAllister, 184 N.J. 17, 31 (2005), the Court held that individuals have a reasonable expectation of privacy in their bank records, even though bank customers voluntarily provide their information to banks. In Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 321 (2010), the Court held that an individual had a reasonable expectation of privacy in the e-mails she

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exchanged with her attorney, even though those e-mails were accessible by the employer she sued because she had sent them through the employers work server. Only by ignoring these controlling decisions and principles and relying instead on its reading of federal precedents that provide less protection than the New Jersey Constitution can the Committee argue that an individual has no expectation of privacy in the content of [a] message once it is sent. (Committee Br. at 22 (citing United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) and Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001).) But, as shown above, the New Jersey Supreme Court has repeatedly held that an individual has a protected privacy interest in information that could reveal intimate details of a persons life, even when that information is exposed to third parties. State v. DeFranco, 426 N.J. Super. 240, 248 (App. Div. 2012) (explaining this difference between federal and state law). In fact, Reid took note of the very [f]ederal case law now cited by the Committee, and rejected it. Reid, 194 N.J. at 396 (rejecting the conclusion in Guest and other federal decisions holding that a person has no reasonable expectation of privacy in information exposed to third parties). Moreover, the Committees reading of the divergent federal law it cites is incorrect. Federal courts routinely recognize that individuals have a reasonable expectation of privacy in their personal e-mails and text messages. See, e.g., United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010) (Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.); United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) ([C]ell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers. [The defendant] had a reasonable expectation of privacy regarding this

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information.).7 The exception to this general rule exists when an individual uniquely exposes his communications to the outside world, such as, for example, when an individual posts information to computer-based bulletin boards or communicates with others while being monitored by the probation department. See Guest, 255 F.3d at 333 (holding that a users posting of material on a computer-based bulletin board was not private, particularly in light of the disclaimer stating that personal communications [on that board] were not private); Lifshitz, 369 F.3d at 190 (explaining that, whether a probationer has a reasonable expectation of privacy depends on the type of monitoring imposed pursuant to federal probation). Nowhere did Guest hold, as the Committee suggests, that an e-mails author loses the protections of the Fourth Amendment simply be sending an e-mail. If that were the case, the Fourth Amendment would be a dead letter because the government would be free to seize, without a warrant, any e-mail or letter ever sent or received by any person. Rather, Guests discussion of the senders

expectation of privacy was tied to whether he had standing to challenge the governments seizure of documents in the possession of third parties. See Guest, 255 F.3d at 330, 333 (analyzing individuals standing to contest seiz[ure] of two computer bulletin board systems); United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995) (holding that prisoner

See also United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) (The privacy interests in these two forms of communication [email and traditional mail] are identical.); R.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128, 1142 (D. Minn. 2012) (Numerous courts have . . . concluded that individuals maintain a reasonable expectation of privacy with respect to their private email accounts and that such accounts are entitled to the same Fourth Amendment protections as conventional letters.); United States v. Burgard, No. 10-cr-30085, 2011 U.S. Dist. LEXIS 9893, at *14 (S.D. Ill. Feb. 2, 2011) (P]eople ordinarily have a high expectation of privacy in their cell phones.); United States v. Cioffi, 668 F. Supp. 2d 385, 390 n.7 (E.D.N.Y. 2009) (The government does not dispute that [the defendant] had a reasonable expectation of privacy in the contents of his personal email account.).

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lacked standing to challenge the governments seizure and use of the letters he mailed to his wife.). Nor does the Committee cite any authority for the proposition that the privacy or liberty interests safeguarded by Boyd and at the heart of New Jerseys common-law privilege against self-incrimination attaches only when private individuals conduct[] private business. (Committee Br. at 22 n.5; id. at 21 (arguing that Mr. Stepien, [a]s a former public official, has no recognizable privacy interest in the requested materials).) By the Committees logic, the privilege against self-incrimination would never apply to white-collar crimes because those crimes, by their very nature, are of a business rather than a personal nature. The Supreme Court rejected that reasoning in Boyd when it held that the Fifth Amendment precluded the government from demanding production of a business invoice that reflected the quantity and value of the [imported] glass. Boyd, 116 U.S. at 618. Boyd thus not only proscribed the compulsory production of quintessentially private books and papers but more generally prevented compelling an individual to convict himself of a crime. Guarino, 104 N.J. at 230 (quoting In re Pillo, 11 N.J. 8, 15-16 (1952)); see also Pillo, 11 N.J. at 15 (In modern concept [the privilege against self-incriminations] wide acceptance and broad interpretation rest on the view that compelling a person to convict himself of crime is contrary to the principles of a free government and abhorrent to the instincts of an American) (quoting Boyd, 116 U.S. at 632). An individual only relinquishes that liberty interest in circumstances that are not applicable here, that is, where the documents in question are disclosed to a significant number of individuals, to an extent totally inconsistent with any claim of privacy. Guarino, 104 N.J. at 234. Any other conclusion would mean that New Jerseys broader privilege against self-incrimination affords

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less protection than its federal counterpart. As established above, the law is directly to the contrary. Muhammad 182 N.J. at 568; Strong, 110 N.J. at 595. III. THE COURT SHOULD NOT COMPEL MR. STEPIEN TO RESPOND TO SUBPOENA REQUEST NOS. 6 AND 7 BECAUSE THEY VIOLATE THE FEDERAL AND STATE CONSTITUTIONAL BAN ON UNREASONABLE SEARCHES AND SEIZURES. In his letter of January 31, 2014, Mr. Stepiens counsel demonstrated that Request Nos. 6 and 7 of the Subpoena which asked for [a]ll calendars, day planners, notes, and/or diaries and [a]ll smartphones, tablets, cellular phones, and personal digital or data assistants used by him from September 1, 2012 to the present were unreasonably broad and invasive because they were not sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. (Bocchi Certification, Exhibit L, Stepien Jan. 31, 2014 Letter at 17-18 (quoting See v. Seattle, 387 U.S. 541, 544 (1967) and collecting authority).) That was particularly so in light of the exacting scrutiny given to broad demands for personal records. (Id. at 18 (quoting In re McVane, 44 F.3d 1127, 1138-39 (2d Cir. 1995).) The Committee disputes none of this. Instead, it states that it has modified Request Nos. 6 and 7 so that they no longer demand Mr. Stepiens personal electronic devices and they only seek Mr. Stepiens calendar entries with [the thirty-two named] individuals. (Committee Br. at 23.) While purporting to modify these Requests, the Committee has not withdrawn the Subpoena or recognized the constitutional invalidity of Request Nos. 6 and 7 as originally drafted. (See Bocchi Certification, Exhibit M (We will not be withdrawing the subpoena to Mr. Stepien.).) To the extent the Committee purports to reserve its right to enforce Request Nos. 6 and 7 as originally drafted, that reservation must be denied because, as explained in counsels January 31st letter, those requests violate the federal and state constitutional prohibitions against 58