2.13 - F. The Sixth Circuit

• Jurisdiction: New York

F. The Sixth Circuit

The Sixth Circuit has discerned two rationales as to why “required records” are without the protection of the Fifth Amendment even where production authenticates them. First, an individual admits little of significance in producing documents having public aspects which he is required to keep. Second, if an individual elects to commence and continue to do business in an area where record keeping is required, he may be deemed to have waived the privilege against self-incrimination for purposes of producing records he is required to keep. “This is why Doe is not controlling, and why, we suspect, that the ^reme Court so carefully excluded required records from the reach of its holding.”²³⁰

The Sixth Circuit has also decided that the act-of-production doctrine is not applicable to corporate or partnership records.

Since collective entities can act only through officers and agents, the effect of permitting custodians of partnership and corporate records to avoid production of such records in reliance on the Fifth Amendment would be to extend the privilege . . . to the collective entities. The custodian of corporate or partnership records acts only in a representative capacity, not as an individual, and production of the records is not a testimonial act of the custodian. Production of the records communicates nothing more than the fact that the one producing them is a representative of the corporation or partnership. ²³¹

Also, the Sixth Circuit has held that “there can be nothing incriminating about authenticating an innocuous document,” yet its production may constitute a “link in the chain” necessary to prosecute—a determination requiring an analysis of the peculiar facts of a given case.²³² In one case, the circuit had to revisit established precedents to correct a district court which told a pro se taxpayer that “[t]here is no fifth amendment right not to share information with the Internal Revenue Service, period. That is the law.”²³³

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Notes:

^[230] . In re Grand Jury Subpoena Duces Tecum Served Upon Underhill, 781 F.2d 64, 70 (6th Cir.), cert. denied, 479 U.S. 813 (1986); accord United States v. Spano (In re Grand Jury Subpoena), 21 F.3d 226...