Taking the Fifth in Document Production

Because corporations and other types of entities do not have a Fifth Amendment privilege against incrimination, such 'collective entities' cannot refuse to turn over subpoenaed documents on these grounds. Braswell v. U.S., 487 U.S. 99 (1988). Thus, even if the requested records incriminate the company, or its employees, they must be provided. Hale v. Henkel, 201 U.S. 43 (1906).

Personal Papers

The historical rule is that the Fifth Amendment privilege protects individuals against the compelled production of personal, private papers. Boyd v. U.S., 116 U.S. 616 (1886). This rule was 'designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.' U.S. v. White, 322 U.S. 694, 698 (1944). The 'personal papers' rule requires that documents 'must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' White at 699. The rule thus appears to cover diaries, notes or unmailed personal correspondence but leaves open a wide array of other quasi-personal documents.

However, the 'personal papers' rule has been so eroded by numerous exceptions over the past 50 years that many commentators consider the Boyd decision to have been implicitly overruled. A significant inroad on the personal papers rule derives from the notion that, because the preparation of private papers is done voluntarily, for purely personal reasons, the information is not compelled by the government, and the privilege does not protect them from disclosure. In re Grand Jury Proceedings, 759, F.2d 1418, 1419 (9th Cir. 1985), citing U.S. v. Doe, 465 U.S. 605, 618 (1984) (O'Connor, J. concurring).

The law also is clear that business records are not 'private papers.' An individual in possession of the business records of a company, partnership or other collective entity can be compelled to produce the information because it belongs to the entity, which has no privilege, and not to the individual. White at 701-04; Wilson v. U.S., 221 U.S. 361 (1911). As a result, records routinely prepared in the course of business are not protected by the privilege. This is true even where the individual is the sole proprietor of a business and the documents also constitute his personal papers. Braswell v. U.S., 497 U.S. 99 (1988). There are several cases that allow former company employees to assert the Fifth Amendment and withhold production, so the individual's current status should be carefully considered. See, In re Three Grand Jury Subpoenas, 191 F.3d 173, 178-80 (2d Cir. 1999).

The law does, however, provide some protection to the individual custodian who produces the business records. The government cannot make any use of the fact that the custodian produced the documents in any criminal prosecution. Braswell at 117-18. This reduces the risk that the custodian, who acts only as an agent for the entity, will expose himself to personal liability.

Required Records

Records 'required' by law or regulation to be kept and made available for government inspection are not protected from disclosure by the privilege. Shapiro v. U.S., 335 U.S. 1, 16-17 (1948). The theories here are that such documents are not 'personal' in nature because they are prepared for the government, and they are necessary for the government to regulate public health, safety or economic affairs. Courts determine whether a document is a 'required record' by applying a three-pronged test. 'First, the purposes of the government's inquiry must be essentially regulatory, rather than criminal. Second, the records must contain the type of information that the regulated party would ordinarily keep. Third, the records 'must have assumed 'public aspects' which render them at least analogous to public documents.” In re Grand Jury Subpoena Duces Tecum Served Upon Underhill, 781 F.2d 64, 67 (6th Cir.) cert. denied, Underhill v. U.S., 479 U.S. 813 (1986) quoting Grosso v. U.S., 390 U.S. 62, 67-68 (1968).

The 'required record' exception to the Fifth Amendment extends to the filing of income tax returns, U.S. v. Sullivan, 274 U.S. 259 (1927), and thus copies of such returns can properly be subpoenaed. The taxpayer may, however, assert the privilege as to particular items in the tax forms at the time the return is filed. Garner v. U.S., 424 U.S. 648 (1976). For example, if the tax form requires disclosure of income from illegal gambling, the taxpayer may assert the privilege as to that question rather than admitting to possible illegal activity. Grosso v. U.S., 390 U.S. 62 (1968).

Similarly, where government regulations require individuals to register or to provide certain types of information, the Fifth Amendment does not justify a refusal to provide the information, nor does it prohibit the use of that information against the individual in a later trial or other proceeding. Thus, drivers can be required to stop at an accident scene and provide their names and addresses, California v. Byers, 402 U.S. 424, 428 (1971), and oil transporters can be required to report oil spills for which they are responsible. U.S. v. Ward, 448 U.S. 243 (1980). Documents related to such reports cannot be withheld from a subpoena on Fifth Amendment grounds.

The Act of Production Doctrine

While the Supreme Court has made it clear that the Fifth Amendment privilege cannot block the production even of incriminating documents in most instances, the Court has also recognized that the simple act of physically producing those same documents 'may have a compelled testimonial aspect.' U.S. v. Hubble, 530 U.S. 27, 36 (2000). By producing the documents, the individual admits that the papers exist and that they are in his possession, all of which could lead to incriminating evidence against him.

The Supreme Court has held that '[t]he act of producing evidence in response to a subpoena … has communicative aspects of its own, wholly aside from the contents of the papers produced.' U.S. v. Fisher, 425 U.S. 391, 411 (1976). The 'assembly of those documents was like telling an inquisitor the combination to a wall safe.' Hubble at 43. The production of documents is not just a physical act, but it also requires the respondent to employ 'the contents of his own mind.' Id. The so-called 'Act of Production Doctrine' has, therefore, evolved to help ameliorate concerns that the compelled production of incriminating documents could eliminate the respondent's Fifth Amendment privilege. Simply put, it may justify a refusal to produce the documents or it may prevent the government from using the act of producing the material against the producing individual in any subsequent proceeding.

The 'act of production' doctrine leaves room for negotiations that may avoid or limit subpoena responses. Counsel may be able to obtain favorable terms regarding the scope and ultimate use of information obtained in a client's production. It is a valuable weapon in counsel's limited self-incrimination arsenal and should be utilized when possible.

Immunity and Nonprosecution

The government can overcome the assertion of the Fifth Amendment privilege by granting an individual immunity from prosecution, thus eliminating the possibility of incrimination. See, 18 U.S.C. Secs. 6002-6003; Kastigar v. U.S., 406 U.S. 441 (1972). Immunity is an official court order that compels a witness to produce documents and/or to testify by ensuring that no information so compelled will be used against the witness in any criminal case, except for a failure to comply with the order (for example, by failing to tell the truth).

The Supreme Court has protected immunized persons from later prosecution. In a case where a witness with immunity was compelled to produce documents, and was then prosecuted for additional crimes based on the documents produced, a unanimous Supreme Court dismissed the charges. The Court said that the new prosecution must be 'wholly independent' from the documents produced by the immunized witness. Hubble at 45.

Immunity must be distinguished from nonprosecution agreements. Government attorneys can enter into nonprosecution agreements, or grant 'pocket' immunity, in exchange for cooperation when, 'in his/her judgment the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective.' 9 Department of Justice Manual at Ch. 27 Sec. 600, 9-530 (1992-1 Supplement).

This informal immunity most often takes the form of letters of assurance or agreements not to prosecute in exchange for full and truthful cooperation. While it does not offer the more complete protection of court ordered immunity, such agreements are routinely honored and may be enforced in court as a binding contract.

In almost every initial contact with a government investigator seeking an interview with your client, counsel should explore the issue of immunity. At the very least, this discussion will give counsel insights into the government's view of the client's potential culpability. This information is an essential ingredient in deciding whether the client should testify, assert the privilege or aggressively seek immunity.

Although the Fifth Amendment privilege remains a bulwark of the judicial system, its use can be fraught with peril for the uninitiated. Clients subject to government process often misunderstand its risks and benefits and may lose its protections because of the fact-intensive, case-by-case nature of its application. For these reasons, extreme caution remains the rule.

Robert Plotkin is a white collar defense lawyer in the Washington, DC office of the international law firm, Paul, Hastings, Janofsky & Walker LLP. He gratefully acknowledges the assistance of Aaron Walker, also of Paul, Hastings, Janofsky & Walker LLP, in the preparation of this article.

This is part two of a two part article.

Clients subpoenaed by the government or private litigants rarely want to disclose their documents. They reflexively assert that it is all personal, confidential or proprietary. However, they are often surprised to learn that most documents are not protected from disclosure by the Fifth Amendment privilege. There is an entire body of case law that narrowly restricts the protection of the Fifth Amendment privilege in document production, which can be a trap for the unwary.

The Documents of Collective Entities

Because corporations and other types of entities do not have a Fifth Amendment privilege against incrimination, such 'collective entities' cannot refuse to turn over subpoenaed documents on these grounds. Braswell v. U.S., 487 U.S. 99 (1988). Thus, even if the requested records incriminate the company, or its employees, they must be provided. Hale v. Henkel, 201 U.S. 43 (1906).

Personal Papers

The historical rule is that the Fifth Amendment privilege protects individuals against the compelled production of personal, private papers. Boyd v. U.S., 116 U.S. 616 (1886). This rule was 'designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.' U.S. v. White, 322 U.S. 694, 698 (1944). The 'personal papers' rule requires that documents 'must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' White at 699. The rule thus appears to cover diaries, notes or unmailed personal correspondence but leaves open a wide array of other quasi-personal documents.

However, the 'personal papers' rule has been so eroded by numerous exceptions over the past 50 years that many commentators consider the Boyd decision to have been implicitly overruled. A significant inroad on the personal papers rule derives from the notion that, because the preparation of private papers is done voluntarily, for purely personal reasons, the information is not compelled by the government, and the privilege does not protect them from disclosure. In re Grand Jury Proceedings, 759, F.2d 1418, 1419 (9th Cir. 1985), citing U.S. v. Doe, 465 U.S. 605, 618 (1984) (O'Connor, J. concurring).

The law also is clear that business records are not 'private papers.' An individual in possession of the business records of a company, partnership or other collective entity can be compelled to produce the information because it belongs to the entity, which has no privilege, and not to the individual. White at 701-04; Wilson v. U.S., 221 U.S. 361 (1911). As a result, records routinely prepared in the course of business are not protected by the privilege. This is true even where the individual is the sole proprietor of a business and the documents also constitute his personal papers. Braswell v. U.S., 497 U.S. 99 (1988). There are several cases that allow former company employees to assert the Fifth Amendment and withhold production, so the individual's current status should be carefully considered. See, In re Three Grand Jury Subpoenas, 191 F.3d 173, 178-80 (2d Cir. 1999).

The law does, however, provide some protection to the individual custodian who produces the business records. The government cannot make any use of the fact that the custodian produced the documents in any criminal prosecution. Braswell at 117-18. This reduces the risk that the custodian, who acts only as an agent for the entity, will expose himself to personal liability.

Required Records

Records 'required' by law or regulation to be kept and made available for government inspection are not protected from disclosure by the privilege. Shapiro v. U.S., 335 U.S. 1, 16-17 (1948). The theories here are that such documents are not 'personal' in nature because they are prepared for the government, and they are necessary for the government to regulate public health, safety or economic affairs. Courts determine whether a document is a 'required record' by applying a three-pronged test. 'First, the purposes of the government's inquiry must be essentially regulatory, rather than criminal. Second, the records must contain the type of information that the regulated party would ordinarily keep. Third, the records 'must have assumed 'public aspects' which render them at least analogous to public documents.” In re Grand Jury Subpoena Duces Tecum Served Upon Underhill, 781 F.2d 64, 67 (6th Cir.) cert. denied, Underhill v. U.S., 479 U.S. 813 (1986) quoting Grosso v. U.S., 390 U.S. 62, 67-68 (1968).

The 'required record' exception to the Fifth Amendment extends to the filing of income tax returns, U.S. v. Sullivan, 274 U.S. 259 (1927), and thus copies of such returns can properly be subpoenaed. The taxpayer may, however, assert the privilege as to particular items in the tax forms at the time the return is filed. Garner v. U.S., 424 U.S. 648 (1976). For example, if the tax form requires disclosure of income from illegal gambling, the taxpayer may assert the privilege as to that question rather than admitting to possible illegal activity. Grosso v. U.S., 390 U.S. 62 (1968).

Similarly, where government regulations require individuals to register or to provide certain types of information, the Fifth Amendment does not justify a refusal to provide the information, nor does it prohibit the use of that information against the individual in a later trial or other proceeding. Thus, drivers can be required to stop at an accident scene and provide their names and addresses, California v. Byers, 402 U.S. 424, 428 (1971), and oil transporters can be required to report oil spills for which they are responsible. U.S. v. Ward, 448 U.S. 243 (1980). Documents related to such reports cannot be withheld from a subpoena on Fifth Amendment grounds.

The Act of Production Doctrine

While the Supreme Court has made it clear that the Fifth Amendment privilege cannot block the production even of incriminating documents in most instances, the Court has also recognized that the simple act of physically producing those same documents 'may have a compelled testimonial aspect.' U.S. v. Hubble, 530 U.S. 27, 36 (2000). By producing the documents, the individual admits that the papers exist and that they are in his possession, all of which could lead to incriminating evidence against him.

The Supreme Court has held that '[t]he act of producing evidence in response to a subpoena … has communicative aspects of its own, wholly aside from the contents of the papers produced.' U.S. v. Fisher, 425 U.S. 391, 411 (1976). The 'assembly of those documents was like telling an inquisitor the combination to a wall safe.' Hubble at 43. The production of documents is not just a physical act, but it also requires the respondent to employ 'the contents of his own mind.' Id. The so-called 'Act of Production Doctrine' has, therefore, evolved to help ameliorate concerns that the compelled production of incriminating documents could eliminate the respondent's Fifth Amendment privilege. Simply put, it may justify a refusal to produce the documents or it may prevent the government from using the act of producing the material against the producing individual in any subsequent proceeding.

The 'act of production' doctrine leaves room for negotiations that may avoid or limit subpoena responses. Counsel may be able to obtain favorable terms regarding the scope and ultimate use of information obtained in a client's production. It is a valuable weapon in counsel's limited self-incrimination arsenal and should be utilized when possible.

Immunity and Nonprosecution

The government can overcome the assertion of the Fifth Amendment privilege by granting an individual immunity from prosecution, thus eliminating the possibility of incrimination. See, 18 U.S.C. Secs. 6002-6003; Kastigar v. U.S., 406 U.S. 441 (1972). Immunity is an official court order that compels a witness to produce documents and/or to testify by ensuring that no information so compelled will be used against the witness in any criminal case, except for a failure to comply with the order (for example, by failing to tell the truth).

The Supreme Court has protected immunized persons from later prosecution. In a case where a witness with immunity was compelled to produce documents, and was then prosecuted for additional crimes based on the documents produced, a unanimous Supreme Court dismissed the charges. The Court said that the new prosecution must be 'wholly independent' from the documents produced by the immunized witness. Hubble at 45.

Immunity must be distinguished from nonprosecution agreements. Government attorneys can enter into nonprosecution agreements, or grant 'pocket' immunity, in exchange for cooperation when, 'in his/her judgment the person's timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective.' 9 Department of Justice Manual at Ch. 27 Sec. 600, 9-530 (1992-1 Supplement).

This informal immunity most often takes the form of letters of assurance or agreements not to prosecute in exchange for full and truthful cooperation. While it does not offer the more complete protection of court ordered immunity, such agreements are routinely honored and may be enforced in court as a binding contract.

In almost every initial contact with a government investigator seeking an interview with your client, counsel should explore the issue of immunity. At the very least, this discussion will give counsel insights into the government's view of the client's potential culpability. This information is an essential ingredient in deciding whether the client should testify, assert the privilege or aggressively seek immunity.

Although the Fifth Amendment privilege remains a bulwark of the judicial system, its use can be fraught with peril for the uninitiated. Clients subject to government process often misunderstand its risks and benefits and may lose its protections because of the fact-intensive, case-by-case nature of its application. For these reasons, extreme caution remains the rule.

Robert Plotkin is a white collar defense lawyer in the Washington, DC office of the international law firm, Paul, Hastings, Janofsky & Walker LLP. He gratefully acknowledges the assistance of Aaron Walker, also of Paul, Hastings, Janofsky & Walker LLP, in the preparation of this article.