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Judge Sides With NYU Law Students in First Amendment Battle With Ex-Trustee

By Danielle Tcholakian | January 7, 2015 12:37pm | Updated on January 7, 2015 3:44pm
 NYU Law students Luke Herrine, left, and Leo Gertner, right, fought subpoenas they received from the company of a former member of the NYU Law School Board of Trustees, Daniel Straus.
NYU Law students Luke Herrine, left, and Leo Gertner, right, fought subpoenas they received from the company of a former member of the NYU Law School Board of Trustees, Daniel Straus.
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DNAinfo/Danielle Tcholakian

GREENWICH VILLAGE — A pair of New York University Law School students will not be forced to hand over private emails after a federal judge ruled that an attempt to subpoena the students infringed on their First Amendment rights.

The students, Luke Herrine and Leo Gertner, were served subpoenas over spring break last year, after circulating a letter critical of a school trustee, Daniel Straus.

The students had slammed Straus for the treatment of workers at two health care companies he owns, including CareOne Management. Straus' companies are embroiled in a labor dispute with their unionized employees, and as part of a racketeering lawsuit, Straus' companies demanded that the students turn over a wide array of documents, including personal correspondence with their law school classmates.

But U.S. District Magistrate Judge Michael Hammer in New Jersey found that the request for communications between Herrine, Gertner and other law students was "outside the scope of relevance" to the case and “present...significant or potentially significant First Amendment issues," according to a transcript of a Dec. 3 hearing that the students' lawyer quoted in court documents.

Hammer denied almost all parts of the subpoena, including emails between the students and the employees' union, Healthcare Workers East SEIU 1199, according to a Dec. 31 order. The students only have to turn over any documents related to payments between them and the union, Hammer ruled, setting a deadline of Jan. 23.

The students, their lawyer and civil rights advocates blasted Straus and his companies for the subpoenas when DNAinfo New York first reported them last year, accusing the trustee of intimidating students for doing nothing more than exercising their First Amendment rights.

The American Civil Liberties Union of New Jersey warned that the subpoenas could have a "chilling effect" on free speech on campus.

The union did not immediately respond to request for comment, and Herrine, Gertner and their attorney all declined to comment.

A spokeswoman for CareOne said in a statement that the CareOne attorneys are "pleased" even though the majority of their request was denied.

“We have said from the outset that we believe that the two students possess evidence relevant to our RICO lawsuit," said CareOne spokeswoman Deborah Maxson. "Seeking to obtain that pertinent information is what led to our subpoenas, and we are pleased that the recent ruling partially grants our requests. From the beginning, we have stressed that we hope to obtain this information in as cooperative a manner as possible.”

Straus stepped down from his position on the law school's Board of Trustees last year amid criticism from students, faculty and alumni. Hundreds of NYU students, alumni and faculty signed a petition that was delivered to Straus, demanding he have the subpoenas withdrawn and publicly apologize for his action.

The students' legal battle with Straus' companies is not necessarily over for good. The judge left open the possibility for CareOne to seek additional subpoenas after that if the company believes relevant correspondence with the students is missing from documents turned over by the union as part of the larger lawsuit.