Document Production

By Michael A. Collora
Send Email to: mcollora@dwyercollora.com

Because the issue of whether your client must produce documents in response to a state or federal grand jury subpoena arises frequently, it is worthwhile reviewing the current state of both federal and state law on this subject. Since state law offers more protection in certain key areas, it is worthwhile spending time to learn the differences.

Background
It is axiomatic that a Grand Jury is entitled to "every man’s evidence" absent privilege. In re Special Grand Jury, 27 Mass. App. Ct. 693, 696 (1989), citing Branzburg v. Hayes, 408 U.S. 665, 688 (1972). Thus, unless a privilege is successfully asserted in response to a document subpoena, the documents will have to be produced.

Although other constitutional challenges to a subpoena may be raised in limited circumstances, the primary legal support for opposing a grand jury subpoena for documents stems from the Fifth Amendment right not to incriminate oneself. The Fourth Amendment right to object to an unreasonable search and seizure typically does not provide fruitful grounds to resist a grand jury document subpoena, although the Fourth Amendment might be used to modify an extraordinarily intrusive subpoena. See Hale v. Henkel, 201 U.S. 43 (1906); United States v. Calandra, 414 U.S. 338, 346 (1974) (the Fourth Amendment will permit a review for reasonableness, but not for probable cause); see also Fed. R. Crim. P. 70, 17(c). However, document subpoenas disputed on the basis that they are too indefinite or too broad are rarely successful. See, e.g., Fisher v. United States, 425 U.S. 391, 401 n.7 (1976).

The Sixth Amendment will shield written (and oral) communications between client and attorney, as well as an attorney’s work product, from production pursuant to a subpoena. See In Re Grand Jury Proceedings (Zerendow) 925 F. Supp. 849, 852-854 (D. Mass. 1995) (neither attorney’s notes of a police interview, nor his memory of the interview, were subject to subpoena). However, fee agreements and documents regarding sources of funds generally must be produced. Id. at 855; but see U.S. v. Gertner, 873 F. Supp. 729, 735-736 (D. Mass. 1995) (recognizing "last link" exception where disclosure of source of fees may incriminate client in the activity for which he sought representation), aff’d on other grounds, 65 F.2d 963 (1st Cir. 1995).

It is primarily the Fifth Amendment to the federal Constitution and article 12 of the Massachusetts Declaration of Rights which will serve as defenses to a grand jury subpoena. Under federal and state law, the business records of an organized entity such as a corporation or partnership are not subject to the Fifth Amendment privilege against incrimination, as this is deemed to be a personal right that is not afforded to collective entities. Bellis v. United States, 417 U.S. 85, 90 (1974); In re Doe Grand Jury Investigation, 418 Mass. 549, 552 (1994). Thus, at least as an initial proposition, an organization’s keeper of the records or representative must produce the organization’s existing documents even if those documents incriminate the keeper in his individual capacity. Bellis, 417 U.S. at 88; Braswell v. United States, 487 U.S. 99, 109 (1988).

There is, however, another aspect of producing documents which may permit an entity’s representative to assert a Fifth Amendment privilege -- the act of production, which act may authenticate those records, or concede that the documents exist and are within the individual’s possession, custody or control. In re Grand Jury Subpoena, 973 F.2d 45, 51 (1st. Cir. 1992). It is here that federal and state law diverge. Whereas under federal law, an individual’s assertion of his Fifth Amendment privilege against self-incrimination will likely not frustrate a prosecutor’s ability to obtain corporate documents, under state law, it may. We examine both here.

Federal Law
It is well-established that business documents, as opposed to private papers, are not entitled to the Fifth Amendment protection. Bellis, 417 U.S. at 93. Likewise, the Supreme Court has held that an individual acting in a representative capacity on behalf of a corporation or other organized entity may not avoid producing documents under the Fifth Amendment, even if those documents would incriminate him in his personal capacity. Wilson v. United States, 221 U.S. 361 (1911) (president of a corporation compelled to produce corporate records); Bellis v. United States, 417 U.S. 85 (1974) (partner in a small law firm required to produce partnership records); Curcio v. United States, 354 U.S. 118 (1956) (union officer could be forced to produce labor union’s books); In re Grand Jury Subpoena, 973 F.2d 45 (1st Cir. 1992) (trustee of a Massachusetts nominee trust). Indeed, the United States Supreme Court has ruled that even a one-man corporation has no valid privilege in objecting to producing documents. Braswell v. United States, 487 U.S. 99 (1988); see also In re Grand Jury Proceeding (John Doe Co., Inc.) 838 F.2d 624 (1st Cir. 1988) (one-man corporation must produce documents despite a claim that production and authentication would implicate Fifth Amendment rights of the owner).

However, this case law applies only to organized entities. The Supreme Court has held that a sole proprietor – as opposed to the sole owner of a corporation -- may assert an act of production privilege to producing the sole proprietorship’s records. See United States v. John Doe, 465 U.S. 605, 612 (1984). In a recent case, the District Court for the District of Massachusetts applied this rule, quashing an OSHA subpoena for the records of a sole proprietorship, although the Court noted that some of the records sought would have to be produced pursuant to the required records exception for regulatory records. Herman v. Galvin, 40 F. Supp. 2d 27 (D. Mass. 1999).

Although federal law affords an organized entity with no Fifth Amendment privilege against producing documents, it does not leave an individual representative of that organization completely without protection. While an entity’s representative, if he can validly assert a privilege as to the testimonial aspect of production cannot resist compliance with the subpoena, neither can he be compelled to incriminate himself. If an alternate representative to produce and authenticate the records cannot be found, the prosecutor may compel production of the records by the person asserting the privilege, but may not make evidentiary use of the person’s act of producing the documents in a proceeding against the person individually. Braswell, 487 U.S. at 99. The Braswell court went on to note, however, that the prosecutor could use the corporation’s act of producing the documents in a proceeding against the individual, through testimony of the person who served the subpoena and of the person who received the documents – the prosecutor would only be precluded from introducing the fact that it was the individual who produced the documents. Braswell, 487 U.S. at 99. Thus, under federal law, a prosecutor may compel the production of corporate documents without losing the opportunity to prosecute an individual whom the documents incriminate.

Individuals holding corporate records need not necessarily produce them without immunity. The Second Circuit recently held that former employees of a corporation may not be compelled to produce their own copies of corporate records. In re Three Grand Jury Subpoenas, 191 F.3d 173 (2nd Cir. 1999). That court reasoned that these individuals were no longer acting in a representative capacity on behalf of the corporation and, thus, were entitled to assert their privilege against self-incrimination. Top

State Law
Massachusetts law provides somewhat greater protection to organized entities and their principals facing document subpoenas. Beginning with Commonwealth v. Doe, 405 Mass. 676 (1989), the Supreme Judicial Court parted ways with the United States Supreme Court, holding that article 12 of the Declaration of Rights provides broader protection than the Fifth Amendment. Id. at 678. In that case, the Court held that a corporate representative who was subpoenaed to produce corporate records could validly assert a privilege against self-incrimination when the act of production would incriminate him individually. Id. at 678. Thus, while federal law holds that a corporate record keeper may not resist a subpoena by raising a Fifth Amendment privilege against self-incrimination where the testimonial aspect of production would incriminate him personally, Massachusetts law holds that a corporate record keeper may resist a subpoena on that very basis.

The significant practical difference in federal and state law derives from the fact that, under Massachusetts law, a witness who validly asserts a privilege against self-incrimination can only be compelled to produce documents if he is granted transactional -- not use or derivative use -- immunity. Attorney General v. Colleton, 387 Mass. 790, 800-801 (1982) Thus, if a prosecutor elects to immunize a corporate record keeper in order to compel the production of corporate documents, the government has effectively forfeited its ability to prosecute that person in a later proceeding.

Later in attempting to resolve this tension, the Supreme Judicial Court emphasized that the availability of an individual’s right against self-incrimination does not alleviate a corporate entity’s obligation to produce records or permit it to shield itself behind the individual owners’ Fifth Amendment privilege. Rather, the Court held that if the entity’s custodian could not produce records without implicating his article 12 rights, then an alternate record keeper should be appointed. See, In Re John Doe Grand Jury Investigation, 418 Mass. 549, 553 (1994).

The Court foreshadowed the practical problems which may face a prosecutor, in its closing line in In Re John Doe Grand Jury Investigation, stating: "[i]t should be understood that an order to appoint an alternate keeper of the records is not a mandate to the witnesses to say or do anything." Id. at 554. Chief Justice Wilkins, in his concurring opinion, posed the problem more explicitly:

Certainly the witnesses have no obligation to point to or to identify the records. Such conduct could be testimonial and self-incriminatory. The person appointed as alternate keeper, therefore, may have no knowledge of where to look for the records or how to gain access to them. Although I disagree with the dissent’s statement that the plurality opinion embraces a fiction, an order compelling the appointment of an alternate keeper of the records may be illusory because it will serve no worthwhile purpose of the Commonwealth.

Id. at 555 (Wilkins, J., concurring).

As suggested by Chief Justice Wilkins, the appointment of an alternative keeper may have no practical benefit for a prosecutor seeking the production of records. Although the owner-witness who invokes his own article 12 rights may be compelled to appoint an alternative record keeper, he may not be compelled to identify the records or to direct the keeper to them. In a recent unreported case, the president and sole owner of a defunct corporation declined to provide identifying information to the court-appointed alternate recordkeeper, thereby preventing the production of subpoenaed records. Commonwealth v. Anusavice (Worcester Superior Court WOCR 96-0030. Top

Individual Records
While an individual has a Fifth Amendment privilege, there are situations in which the Government may obtain some of his or her records. Some examples are set forth below.

(a) Foreign Bank Accounts
Often, banks in certain countries will not cooperate with the United States in producing bank records. In Doe v. United States, 487 U.S. 201 (1988), after a witness refused to produce foreign bank documents to a grand jury, the United States sought a court order compelling the witness to execute a consent to be sent to the foreign bank. Ruling that such a directive was not testimonial and thus did not implicate the Fifth Amendment, the Supreme Court reasoned that the form, as executed, did not amount to an admission that an account existed, and ordered the witness to sign the document. In so holding, it overruled the First Circuit case of In re Grand Jury Proceedings (Ranauro), 814 F.2d 791 (1st Cir. 1987), where a divided panel had held that such a court-ordered directive violated a witness’ Fifth Amendment rights. Our state courts would likely follow the Doe case. Top

(b)Tax Returns
It is common for law enforcement officers to seek tax returns to prove an element of a crime; it is just as common that a target will not want to furnish them if they exist. Generally, a federal prosecutor may obtain federal tax records in a non tax case by following the procedures in Title 26 U.S.C. §6103(i)(1). To enforce a federal grand jury to obtain state tax returns, the prosecutor must show that: (1) there is reasonable cause to believe that a federal crime has been committed; (2) that the information sought will be probative of the matter in issue; and (3) that the same or equally probative information cannot be obtained elsewhere through reasonable efforts. See In Re: Hampers, 651 F.2d 19 (1st Cir. 1981).

A state prosecutor, however, cannot ordinarily subpoena federal tax returns directly from the Internal Revenue Service and, thus, can only get them through the defendant. In Commonwealth v. Burgess, 426 Mass. 206 (1997), the Supreme Judicial Court considered the issue of whether a court may order a defendant to execute an authorization form directing the IRS to release tax records to the prosecutor. Following the lead of the Supreme Court in Doe v. United States, 487 U.S. 201 (1988), the Court ruled that execution of such a form is not sufficiently testimonial to implicate the self-incrimination privilege, reasoning such an act does not amount to a factual assertion that the tax returns were filed, or a certification that he or she signed the returns. Burgess, 426 Mass. at 213-214. The SJC did order the lower court to assure that execution of these authorization forms would not be used in a testimonial manner at trial. Burgess, 426 Mass. at 221. Top

(c) Private Business Records
In a dated, but not yet overruled opinion, the First Circuit held that an attorney, who was a sole practitioner, could not be compelled to produce certain business records. In Re: Kave, 760 F.2d 343 (1st Cir. 1985). The records sought in that case included the attorney’s notes and memoranda, office diaries, billing records, time logs, and letters and notes written by her client to her. The Court held that production of these documents could not be compelled because: (1) they were personal business records; (2) in Kave’s personal possession (not in any representative capacity); and (3) production would entail testimonial aspects, in that it would authenticate evidence. Kave, 760 F.2d at 358. Top
(d) Private Papers
Pre-existing private papers likely have no more privilege than corporate ones under law. Citing United States v. Doe, 465 U.S. 605, 610 (1984), the First Circuit expressed doubt that the Fifth Amendment applies to the contents of private papers, and stated that, if it does, it would apply only to rare situations involving a breach of privacy. See In re Grand Jury Subpoena, 973 F.2d 45, 51 (1st Cir. 1992). Yet, despite the restrictions narrowing Fifth Amendment rights concerning documents, the testimonial aspect of production may still be protected. In 1997, the United States District Court in Massachusetts suggested that strictly personal, non-business documents may enjoy Fifth Amendment protection. In re Grand Jury Proceedings (Tanger), 173 F.R. D. 336, 337 (D. Mass. 1997). In that case, the Court refused to compel an individual to produce an affidavit which he had drafted for his attorney and which had never been filed in any proceeding. Tanger, 173 F.R.D. at 339; see also United States v. Katin, 109 F.R.D. 406 (D. Mass. 1986) (quashing subpoena for documents including, memoirs, diaries, correspondence, and photographs for use in an immigration proceeding, stating "intimate personal papers" are protected by the Fifth Amendment). Top

(e) Standing
Ordinarily, an individual may not intervene and seek to quash a subpoena served upon a third party for documents held by the third party, but belonging to the individual. Exceptions do exist under the so called "Perlman Rule" which stems from the Supreme Court’s ruling in Perlman v. United States, 247 U.S. 7 (1918), where the Court permitted intervention where it is unlikely that the party served will have any incentive to contest the subpoena. The application of this rule has been limited. For example, the First Circuit has refused to permit intervention to a client who objected to a subpoena directed to his lawyer. In re Grand Jury Subpoena, 411 Mass. 489 (1992) (where government records of accounting firm’s clients, the client could not pursue appeal of the order); In re Oberkoetter, 612 F.2d 15 (1st Cir. 1980) (client could not appeal order directing his attorney to testify before the grand jury); but see In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (permitting client to pursue appeal where lawyers filed affidavit stating they would not risk contempt). Top
Conclusion
While the grounds for resistance to a grand jury subpoena for documents have narrowed or even disappeared in the case of organizations, it is worthwhile resisting a subpoena in an effort to protect extraordinarily intrusive document demands, or where your client individually is at risk if he or she produces the documents. As noted, state court practice provides more opportunity than federal law to resist production.