2.10 - C. The Third Circuit

• Jurisdiction: New York

C. The Third Circuit

The Third Circuit, in an en banc decision which is no longer viable, once held that a corporate records custodian could assert the Fifth Amendment as a bar to compliance with a grand jury subpoena.²²⁴ The dissenting opinion, now the law and regarded by the Appellate Division, First Department as “cogent,”²²⁵ is here quoted at length:

The bar against assertion of the personal privilege by corporate representatives does not result from the fact that we fail to recognize that the act of production may personally incriminate the corporate representative. Rather the doctrine comes into play because we realize that, were the personal privilege to apply, a corporation could avoid production of evidence of its criminal activity so long as the act of production would also incriminate those representatives capable of producing and authenticating the documents.

. . . .

[T]he collective-entity doctrine is not based on the theory that the fifth amendment fails to provide protection against compelled document production, but is rather based on the theory that custodians of corporate records may not assert their own personal fifth amendment privilege with respect to the production of corporate documents. . . . This theory, that the corporate custodian waives his personal fifth amendment rights upon accepting the corporate office, was made explicit in Wilson. . . . Moreover, in Curcio v. United States . . . the Supreme Court reaffirmed the validity of the collective-entity doctrine even while acknowledging that the very act of production required by the doctrine might have testimonial aspects incriminatory of the custodian who was required to produce the documents.

. . . .

Thus, Fisher’s and Doe’s explicit recognition of what was implicit in Curcio—that the act of production may have testimonial aspects—cannot be claimed to repeal the collective entity doctrine. Rather, the doctrine survives, not because production by the custodian has no testimonial ramifications, but because the custodian has waived, to a limited extent, his fifth amendment right upon assuming the duties of his office.

. . . .

The collective-entity doctrine does not depend upon a distinction between individual and corporate documents. It does depend upon a distinction between individual and collective entities, and requires that since collective entities have no fifth amendment privilege a waiver of that privilege by their representatives must be implied. ²²⁶

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