## Facts

- A federal grand jury in the Southern District of New York investigated alleged misconduct in a corporate division from 1993–1996, including falsification of corporate books and misapplication of corporate funds.
- In 1996, the grand jury subpoenaed records from the corporation, and corporate counsel instructed personnel to preserve and collect relevant documents.
- The corporation later pleaded guilty to making false entries in its books and records and agreed to cooperate with the ongoing investigation of individuals.
- In 1999, the grand jury issued three subpoenas duces tecum (dated January 29, 1999) to three former corporate officers (John Does 1–3), commanding production of corporate documents believed to be in their possession after their departures.
- At the time of service, each Doe was no longer employed by the corporation and was subpoenaed in an individual capacity.
- The Does refused to comply, asserting the Fifth Amendment privilege as to the act of producing the documents, arguing production would admit existence, possession, and authenticity and could incriminate them.
- The government moved to compel compliance; the district court denied the motion, and the government appealed.

## Issues

1. Whether former corporate officers may invoke the Fifth Amendment act-of-production privilege to resist grand jury subpoenas directed to them personally for corporate documents in their possession.
2. Whether the collective entity doctrine bars former officers—no longer corporate custodians—from asserting a personal Fifth Amendment privilege regarding production of corporate records.

## Decision

- The Second Circuit affirmed the order denying the government’s motion to compel.
- The court held that former employees/officers who are no longer corporate custodians may assert the Fifth Amendment privilege when the compelled act of production would be testimonial and incriminating.
- Because the subpoenas targeted the Does personally after their employment ended, compelling production would force personal testimonial admissions (existence, possession, and authenticity) potentially linking them to wrongdoing.

## Legal Principles

- The Fifth Amendment may protect the act of producing documents when production is testimonial and incriminating, even if the documents’ contents are not privileged.
- The act of production can communicate implied factual assertions, including the existence of responsive documents, the witness’s possession or control, and the authenticity or identification of the produced materials.
- Under the collective entity doctrine, a corporation has no Fifth Amendment privilege, and current corporate custodians generally cannot refuse to produce corporate records held in a representative capacity.
- When an individual is no longer a corporate representative or records custodian and is subpoenaed in a personal capacity, the collective entity rationale does not automatically bar a personal act-of-production privilege.
- Absent protection such as immunity sufficient to prevent testimonial use of the act of production, a witness may refuse compliance where the act of production itself would be self-incriminating.

## Conclusion

The Second Circuit held that former corporate officers subpoenaed in their individual capacities could invoke the Fifth Amendment to resist producing corporate documents in their possession when compliance would force testimonial and potentially incriminating admissions inherent in the act of production, and the collective entity doctrine did not compel a contrary result once the custodial relationship ended.


In re Three Grand Jury Subpoenas Duces Tecum Dated Jan. 29, 1999, 191 F.3d 173 (2d Cir. 1999)