subpoena. The logical inference to be drawn from Dyal
is that a person arrested for driving a motor vehicle under
the influence has no legal right to refuse chemical testing
and the police are not required to obtain his or her
consent for such testing. State v. Ravotto, 333 N.J. Super.
247, 255-56 (App. Div.), certif. granted, 165 N.J. 677
(2000).
In another case where a subpoena duces tecum was
directed at medical records, the Appellate Division held
that a patient whose records are subpoenaed for
production before either a grand or petit jury, has the
right to resist, by appropriate application to a court, the
disclosure of any portion of his records not reasonably
related to the purpose of the proceeding in which the
subpoena was issued. Gabor v. Hyland, 166 N.J. Super.
275, 279 (App. Div. 1979).
As to whether out-of-state records of a foreign
corporation can be reached by a subpoena duces tecum, see
In re Subpoena Duces Tecum, Institutional Management
Corp., 137 N.J. Super. 208, 216 (App. Div. 1975),
holding that the criterion for determining the validity of
such subpoenas is the same minimum-contacts test
which governs the exercise of long-arm jurisdiction
generally. Such records are subject to subpoena if the
foreign corporation has such contacts with this state so
that the “‘traditional notions of fair play and substantial
justice’” would not be offended by the exercise of
compulsive process by the state. Id. (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
A challenge to the validity of a subpoena duces tecum
is typically made by a motion to quash the subpoena. R.
1:9-2. In the case of a jury trial, a motion to quash should
be made before the jury is empaneled and sworn.
Wasserstein v. Swern & Co., 84 N.J. Super. 1, 5 (App. Div.
1964).
In State v. Weston, 216 N.J. Super. 543, 545-48 (Law
Div. 1986), the court held that a prosecutor seeking to
obtain jail records should apply to the trial court for the
subpoena duces tecum, and if a reasonable basis for the
issuance of the subpoena is shown, the court may
authorize it and require that the records first be examined
by the court in camera to ensure that no information
pertaining to defendant’s trial strategy is revealed.
B. Confidential Investigative FilesIt is this State’s policy to vigorously protect the
confidentiality of its investigative files. Nero v. Hyland,
76 N.J. 213, 224-25 (1978). In fact, “‘even inactive
investigatory files may have to be kept confidential in
order to convince citizens that they may safely confide in
law enforcement officials.’” Id. at 225 (quoting Koch v.
Department of Justice, 376 F. Supp. 313, 315 (D. D.C.
1974)). Investigative files and grand jury materials “are
entitled to a greater degree of respect” in a civil
proceeding, wherein the interest of the law enforcement
agency in maintaining confidentiality is entitled to
greater weight. Cashen v. Spann (I), 66 N.J. 541, 556,
cert. denied, 423 U.S. 829 (1975). A request for
information contained within an investigative file calls for
a showing of more than mere desirability or convenience;
it requires essentiality. Greenspan v. State, 174 N.J. Super.
332, 334-35 (App. Div. 1980). New Jersey courts are
uniformly loath to force disclosure of law enforcement
investigative files, particularly in the absence of a
compelling and particularized need sufficient to override
the government’s interest in confidentiality. Cashen v.
Spann (II), 77 N.J. 138, 142 (1978); State v. Milligan, 71
N.J. 373, 387 (1976); River Edge Savings & Loan Ass’n v.
Hyland, 165 N.J. Super. 540, 544 (App. Div.), certif.
denied 81 N.J. 58 (1979); State v. Mitchell, 164 N.J.
Super. 198, 202 (App. Div. 1978); Doe v. Klein, 143 N.J.
Super. 134, 141-143 (App. Div. 1976).In the context of a citizen’s request under the state
“Right to Know” law and common law doctrine to
examine investigative files of a county prosecutor, the
New Jersey Supreme Court has restricted access to such
confidential criminal investigation records. Loigman v.
Kimmelman, 102 N.J. 98, 105-06 (1986). In Moore v.
Board of Freeholders, 76 N.J. Super. 396, 407-08 (App.
Div.), mod. 36 N.J. 26 (1962), the court, in holding that
the plaintiffs had sufficient status to inspect and copy
general public records of the county, but not confidential
records of the prosecutor’s office, explained that “records
developed by the prosecutor’s office in the course of
investigating criminal activity, records which, if
disclosed, would be detrimental to the public interest,
should not be opened to inspection.”Where federal law provides the governing substantive
law in a lawsuit, the federal common law of privileges
governs. E.g., Kelly v. City of San Jose, 114 F.R.D. 653,
655 (N.D.Cal. 1987) (holding federal courts should
look to interests behind state privileges as a matter of
comity and adopting balancing test for official
information privilege concerning information in police