UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAYMOND LAMAR BROWN, JOHN No. 1:20-cv-07907-NLH-AMD
CLARK, DESMOND RODGERS, TODD
FORD, JR. AND CARLOS SOLER,
individually and on behalf of OPINION
others similarly situated,
Plaintiffs,
v.
EUGENE CALDWELL, et al.,
Defendants.
APPEARANCES:
KAREN A. CONFOY
JEFFREY MORROW POLLOCK
PAUL W. KALISH
FOX ROTHSCHILD LLP, PC
997 LENOX DRIVE
BLDG 3
LAWRENCEVILLE, NJ 08648
On behalf of Plaintiffs
SUSANA CRUZ HODGE
JOSEPH J. DEPALMA
LITE DEPALMA GREENBERG & AFANADOR, LLC
570 BROAD STREET
SUITE 1201
NEWARK, NJ 07102
On behalf of Defendants
MICHAEL LOUIS TESTA, SR.
TESTA HECK SCROCCA & TESTA, PA
424 LANDIS AVENUE
PO BOX 749
VINELAND, NJ 08360
On behalf of Loren Joynes
JOHN-PAUL MADDEN
MADDEN & MADDEN
108 KINGS HIGHWAY EAST, SUITE 200
P.O. BOX 210
HADDONFIELD, NJ 08033-0389
On behalf of Charles Warren
WILLIAM J. HUGHES, JR.
PORZIO, BROMBERG & NEWMAN, P.C.
100 SOUTHGATE PARKWAY
P.O. BOX 1997
MORRISTOWN, NJ 07962-1997
Special Master
HILLMAN, District Judge
Before the Court are Captain Loren Joynes’1 and former
Warden Charles’ Warren’s2 applications for the Court to bar
production of certain physical electronic devices based on the
Fifth Amendment privilege against self-incrimination. (ECF 245,
255). The Court will grant in part and deny in part Joynes’
application and will grant Warren’s application in its entirety.
1 Captain Loren Joynes is a non-party employee of the Defendant,
Cumberland County Jail. Joynes has previously appeared as a
witness in this matter, most notably testifying regarding his
oversight of jail operations on May 11, 2021, the day of the
shakedown. (ECF 141).
2 Charles Warren previously served as the warden for the County
Defendant and was sued in his official capacity. Warren
resigned from his position on September 20, 2021. (See ECF
205). Warren is now a non-party witness in this matter.
BACKGROUND
The Court presumes the parties’ and third-party witnesses’
knowledge of the factual background of the case and only
recounts the facts salient to the dispute before it. On May 25,
2021, the Court ordered the Cumberland County Jail to produce
all electronic communications that were exchanged in the days
surrounding a shakedown at the jail. The shakedown occurred
contemporaneously with the Court’s endorsement of a consent
order entered into by the parties addressing prospectively the
Jail’s Covid-19 policy. (ECF 142 at 494:8-15.)
Pursuant to that Order, Defendants retained a forensic
expert, Jeff Brenner, who collected the devices of various jail
employees in order to prepare a report on what they contained as
it pertained to Plaintiffs’ allegations the shakedown was in
retaliation for this suit and the resulting consent order. As
relevant to the instant dispute before the Court, Joynes
produced his work desktop, work phone and personal phone and
Warren produced his work desktop and work phone for imaging.
During a hearing for this matter held on October 1, 2021,
the Court noted that it appeared that one of the corrections
officers in the jail who testified was not being truthful with
the Court and that documents may have been backdated or
destroyed. (ECF 225 at 15-24). The Court reminded the parties
of its power to hold individuals before it in criminal contempt
and that it viewed the testimony it heard as being potential
perjury. (Id.). Following that discussion on the record, on
October 22, 2022 and October 26, 2022, the Court separately
ordered the parties to conduct further imaging and review of
devices used by the jail officials including Joynes’ personal
computer and Warden Warren’s personal cell phone, which had not
previously been produced. (ECF 240, 242).
Joynes and Warren then filed letters on the record
objecting to the production or further imaging of any of their
devices pursuant to the Fifth Amendment. (ECF 245, 255).
Thereafter, the parties engaged in letter briefing regarding the
timeliness and applicability of the assertion of the Fifth
Amendment Privilege. (ECF 287, 289, 290). The Court considers
the assertion of the Fifth Amendment Privilege against self-
incrimination by Joynes and Warren against that factual
background.
DISCUSSION
I. Subject Matter Jurisdiction
This Court exercises subject matter jurisdiction over the
underlying action pursuant to 28 U.S.C. § 1331.
II. Standard and Analysis
The self-incrimination clause of the Fifth Amendment reads:
“No person ... shall be compelled in any criminal case to be a
witness against himself.” Doe v. U.S.,
487 U.S. 201, 207,
108
S.Ct. 2341, 2346,
101 L.Ed.2d 184 (1988). “As the Court has
often held, the Fifth Amendment ‘not only protects the
individual against being involuntarily called as a witness
against himself in a criminal prosecution but also privileges
him not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.’”
Baxter v. Palmigiano,
425 U.S. 308, 316,
96 S.Ct. 1551,
47
L.Ed.2d 810 (1976).
The Supreme Court has noted that when a party objects to
testifying or producing discovery based on their privilege
against self-incrimination, that objection must be made in a
timely manner. Minnesota v. Murphy,
465 U.S. 420, 429,
104 S.
Ct. 1136, 1143,
79 L. Ed. 2d 409 (1984) (“Thus it is that a
witness confronted with questions that the government should
reasonably expect to elicit incriminating evidence ordinarily
must assert the privilege rather than answer if he desires not
to incriminate himself.”); see also United States v. Frierson,
945 F.2d 650, 660 (3d Cir. 1991) (“It is well established,
however, that the Fifth Amendment privilege against self-
incrimination is not self-executing and thus must be claimed
when self-incrimination is threatened. Minnesota v. Murphy,
465
U.S. at 429,
104 S.Ct. at 1143. This rule means that a person
cannot ordinarily complain on Fifth Amendment privilege grounds
to the use of information supplied by him or her unless the
privilege was asserted at the time the information was given.”);
Brock v. Gerace,
110 F.R.D. 58, 62 (D.N.J. 1986) (“Such an
objection, like any claim of privilege, must be set forth in a
timely manner.”); United States v. Alvarez,
519 F.2d 1036, 1045
(3d Cir. 1975) (holding that where doctor was retained to
evaluate defendant’s state of mind and the evaluation was shared
with the government, the defendant could not object to a
subpoena by the government to have the doctor testify).
The Court holds that Joynes has waived his privilege
against self-incrimination with respect to his personal cell
phone. Joynes contends that he did in fact assert the privilege
at the time that he turned his phone over to Brenner. However,
a review of the record reveals that he indicated to Brenner that
he was concerned about the privacy of his personal information,
not his right against self-incrimination. (ECF 289 at 10-11).
This privacy concern is not equivalent to the assertion of the
Fifth Amendment Privilege against self-incrimination. Fisher v.
United States,
425 U.S. 391, 399,
96 S. Ct. 1569, 1575,
48 L.
Ed. 2d 39 (1976) (“[T]he Court has never suggested that every
invasion of privacy violates the privilege. Within the limits
imposed by the language of the Fifth Amendment, which we
necessarily observe, the privilege truly serves privacy
interests; but the Court has never on any ground, personal
privacy included, applied the Fifth Amendment to prevent the
otherwise proper acquisition or use of evidence which, in the
Court's view, did not involve compelled testimonial self-
incrimination of some sort.”). Thus, the Court finds that
Joynes waived his Fifth Amendment Privilege against self-
incrimination with respect to his personal phone when he
produced it without objection to the Defendants’ forensic expert
for examination and analysis.3
It also appears that the Court need not be concerned that
the act of production of the phone itself is testimonial such
that ordering Joynes to turn over his personal phone for imaging
would violate his privilege against self-incrimination. First,
it appears that Joynes’ phone has already been given over to
Brenner and imaged and searched for information surrounding the
May 2021 shakedown event. Second, to the extent that the
transfer of the phone’s data to the Plaintiffs or any further
imaging of the phone would constitute an act of production, the
Court holds that such production would not be testimonial.
Indeed, the Supreme Court in Fisher held that where the
existence of evidence is a “foregone conclusion,” producing such
3 See Shakman v. Democratic Org. of Cook Cty.,
920 F. Supp. 2d
881, 892-94 (N.D. Ill. 2013)( county employee who answered
questions in the context of an ongoing civil investigation of
the county waived her right to later assert her Fifth Amendment
Privilege against self-incrimination).
evidence does not violate the Fifth Amendment because the
production is not “sufficiently testimonial for purposes of the
privilege.” Fisher,
425 U.S. at 411. Because the parties
already know that Captain Joynes has a personal cell phone and
that it contains information pertinent to the operation of the
jail around the time of the shakedown event,4 admitting that he
has it and turning it over “adds little or nothing to the sum
total of the [] information” available to the government in any
prosecution. Id.; cf. United States v. Hubbell,
530 U.S. 27,
45,
120 S. Ct. 2037, 2048,
147 L. Ed. 2d 24 (2000) (noting that
where the government seeking production did not already know
about the existence and whereabouts of certain documents,
Fisher’s foregone conclusion rationale would not apply). Thus,
Joynes’ arguments regarding the act of production also fails.
Joynes also argues that he has not waived his Fifth
Amendment Privilege with respect to his personal computer. (ECF
287). The Court agrees with Joynes in that respect. The
personal computer was never produced and was not clearly ordered
to be produced until October 26, 2022. On October 27, 2022,
counsel for Joynes filed a letter on the docket asserting the
privilege. The Court finds this assertion of the privilege
4 The report by Brenner touched on the contents of Joynes’
personal cell phone and noted the existence of text messages
related to work on his phone. (See ECF 235 at 1).
timely and thus does not find the privilege waived with respect
to Captain Joynes’ personal computer. Brock,
110 F.R.D. at 62.
Further, because the parties do not know if there is any
pertinent information at all on the personal computer, any act
of production by Joynes of that personal computer could be
testimonial such that it would fall within the ambit of the
Fifth Amendment privilege against self-incrimination. Hubbell,
530 U.S. 27 at 45.
Warren separately argues that he should not be compelled to
turn over his personal cell phone for imaging because he timely
asserted his privilege against self-incrimination. The Court
agrees. Warren argues that the Court cannot find that there was
any waiver on his part because he never turned over his personal
cell phone and timely asserted his privilege against self-
incrimination as soon as the issue arose. Indeed, after the
Court clearly ordered production of that device on October 26,
2022, Warren wrote to the Court through counsel on November 2,
2022 to assert the privilege and advise the Court that he would
not be producing his phone. This assertion of the privilege
prior to production is timely and the Court will not find a
waiver. Maness v. Meyers,
419 U.S. 449, 463,
95 S. Ct. 584,
593,
42 L. Ed. 2d 574 (1975) (noting that it is a “familiar
procedure” to decline to produce documents while a court decides
if those documents are covered by the Fifth Amendment
Privilege). The Court also does not perceive sufficient
indications in the record at this juncture to suggest that the
existence of relevant evidence on Warren’s personal phone is a
foregone conclusion such that ordering him to produce it would
not be testimonial.5 Hubbell,
530 U.S. at 45. That said, should
the existence and location of relevant documents or
communications on Warren’s personal cell phone become obvious by
virtue of reviewing other discovery in this case, production by
Warren may no longer be testimonial. Based on the current
record before the Court, though, it would be inappropriate to
order Warren to turn over his device for imaging at this time.
CONCLUSION
For the reasons expressed above, the Court holds that the
5 To be sure, the report submitted by Brenner revealed text
messages that appear to be from Warren’s personal phone to
Joynes, potentially in violation of this Court’s sequestration
order. (See ECF 225, 235). The Court notes that some date back
to the time of the shakedown in May 2021 and discuss the
incident. The fact that there are text messages regarding the
shakedown does not automatically imply that Warren’s personal
phone contains messages regarding retaliation or intent to cover
up a retaliation. The current record only shows Warren using
his personal phone to discuss the shakedown in his capacity as
the warden responsible for the jail. The Court, while
concerned, is not prepared to hold that the existence of
evidence showing retaliation by Warren is a foregone conclusion.
Hubbell, 530 U.S. at 45 (declining to view the existence of
certain documents as a foregone conclusion where the “Government
[had] not shown that it had any prior knowledge of either the
existence or the whereabouts of the 13,120 pages of documents
ultimately produced by respondent”).
Fifth Amendment Privilege against self-incrimination protects
Joynes’ personal computer and Warren’s personal phone from
production. However, the Court holds that Joynes’ has waived
the privilege with respect to his personal cell phone.
An appropriate Order will be entered.
Date: July 14, 2022 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.