Fifth Amendment Privilege for Producing Corporate Documents

This Note argues that a person should be able to assert her fifth amendment privilege against self-incrimination when her act of producing corporate documents pursuant to a subpoena causes her to make testimonial admissions that are incriminating. Part I briefly examines the two approaches the Supreme Court has used to decide claims of self-incrimination for records production. First, it explains the Court’s traditional entity doctrine which, by focusing on the nature of the documents and the capacity in which they are held, has prohibited records producers from invoking the fifth amendment privilege against self-incrimination if the records produced are those of a corporation or other collective entity. Second, it examines the more recent three-part analysis adopted in Fisher and Doe which extends fifth amendment protection to a documents producer only if her production of documents involves compelled testimonial incrimination.

Part II surveys recent attempts of lower courts to apply these two conflicting theories to claims by persons compelled to produce corporate records. It argues that although the practical impact of the position of the Second, Third, and Fourth Circuits differs little from that of the Sixth and Eighth Circuits, the approach employed by the former courts is correct. Part II first demonstrates that under the Fisher-Doe analysis, a person compelled to produce corporate records would, in certain situations, be entitled to invoke the privilege against self M incrimination. Second, it argues that the rationale of the entity doctrine no longer supports the denial of fifth amendment protection to a person who may be compelled to make incriminating testimonial admissions by producing corporate documents.