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IN RE GRAND JURY SUBPOENA DUCES TECUM

September 9, 1981

In re GRAND JURY SUBPOENA DUCES TECUM DATED APRIL 23, 1981


The opinion of the court was delivered by: SOFAER

OPINION AND ORDER

On April 23, 1981, a grand jury in the Southern District of New York served a subpoena on the witness involved in this proceeding. The witness refused to provide the documents called for by the subpoena. The government then took the witness before the Honorable Edmund L. Palmieri, acting as Part I Judge. After briefing, argument, and an in camera examination of the documents, Judge Palmieri ordered the witness to produce the subpoenaed documents. When the witness again refused, Judge Palmieri held him in contempt, but stayed enforcement pending an appeal. A panel of the Second Circuit Court of Appeals, 657 F.2d 5, heard the appeal and remanded the matter for further proceedings.

 The subpoena calls for all of the witness's "original pocket calendars and desk calendars reflecting business appointments between January 1, 1973, and December 31, 1978." The witness, an officer at Warner Communications, Inc. ("Warner"), asserted that the calendars are private papers and therefore exempt from subpoena by virtue of the fifth-amendment privilege against self-incrimination. Judge Palmieri disagreed: relying on his in camera, ex parte examination of the documents, Judge Palmieri held that the privilege was inapplicable both because the documents are corporate, and therefore outside the privilege under long-standing doctrine, and because the subpoena sought "no testimony." Joint Appendix at 38, In re Grand Jury Subpoena Duces Tecum Dated April 23, 1981, 657 F.2d 5 (2d Cir. 1981). On appeal, the witness reasserted that the calendars are private and therefore privileged. The government asked the Circuit Court to affirm the District Court's ruling that the calendars are corporate and, as such, not privileged; the government also argued that after Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976), even if the calendars are private, such documents no longer come within the fifth-amendment privilege. See, e.g., The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 76-78 (1976). Addressing the first of the government's contentions, the Court of Appeals concluded that

 
in determining whether the documents are personal or corporate, the issue is whether by requiring their production, the witness is being compelled to testify against himself. The following nonexhaustive list of criteria is relevant to this determination: who prepared the document, the nature of its contents, its purpose or use, who maintained possession and who had access to it, whether the corporation required its preparation, and whether its existence was necessary to the conduct of the corporation's business.

 In re Grand Jury Subpoena Duces Tecum Dated April 23, 1981, 657 F.2d at 5, at 8 (2d Cir. 1981). The Court remanded the case for further consideration of the specified criteria. In its remand order, the Court also noted that in the Second Circuit the fifth-amendment privilege applies, even after Fisher v. United States, supra, to an individual's production of his private papers pursuant to a subpoena. Because the government has accepted that ruling as binding in this case, the issue on remand to the District Court is whether the subpoenaed calendars are private and therefore privileged, or corporate and therefore subject to call.

 When the matter was returned to the District Court, some extraordinary procedural steps became necessary to compile a record responsive to the Circuit Court's order. A hearing was held to determine the nature of the calendars' contents, the relevant criterion on which the Court of Appeals appeared to find the greatest uncertainty. Warner's Senior Vice President in charge of administrative affairs testified about company policy on desk and personal calendars. In addition, the witness's former secretary testified in the presence of both parties to what she knew of how both sets of calendars had been maintained and of what they contained. After both sides were permitted to examine the secretary on these general matters, the government left the proceeding, as it had no right to know the actual contents of the calendars prior to their surrender. The District Court then questioned the secretary in the presence of the witness and his attorneys about the actual contents of the desk calendars, to which the secretary had been given access in the course of her employment by the witness. The Court and the secretary together examined three full months of entries in each of two different calendar years, as well as many randomly selected entries from other years. The secretary testified that the portions examined were representative of the desk calendars she had actually seen. Transcript of Hearing at 47, 54-55, 57-58 (Aug. 19, 1981) (hereinafter cited only as Transcript). In the course of examining the desk calendars the secretary also examined and responded to questions about pieces of paper interspersed among the pages of the desk calendars; the Court of Appeals had referred to the pieces of paper in its opinion, but the express terms of the subpoena did not cover them. The witness's attorney conceded that any material actually affixed to the desk calendars should be treated as part of the calendars.

 After examining the desk calendars, the district judge showed the secretary the pocket calendars, which she identified as belonging to the witness. Counsel for the witness objected to allowing the secretary to examine the contents of the pocket calendars, noting that she had no prior access to them. The Court asked the secretary to demonstrate how close she had come to the calendars when the witness had made entries. She answered that she had been able to see the inside of the calendars but unable to read any of the writing or numbers on the pages. Transcript at 60. The district judge then read to the secretary some names that were written in the pocket calendars; the secretary testified that several were names of corporate officers, or of business associates, or of entities related to the witness's work. Transcript at 63-65. Following that inquiry, the secretary left the hearing room, and the district judge examined parts of the pocket calendars in the presence of the witness and his attorneys. After being satisfied that the calendars had been adequately scrutinized, the Court invited comments on the need for further examination. The Court responded to the comments offered and proceeded to make findings concerning the nature of the calendars' contents. Those findings, Transcript at 79-83, incorporated here by reference, were later provided to the government, and the Court heard brief arguments from the parties on whether the calendars are corporate or private.

 It is long-established doctrine that the fifth-amendment privilege against self-incrimination is inapplicable to corporate papers. In the first important American case on the subject, the papers held subject to subpoena the contents of a copy ledger were owned by the corporation and had been demanded from the individual involved by both the government and the corporation's board of directors; in addition, the district judge in the case had agreed to delete any personal papers inside the copy ledger. See Wilson v. United States, 221 U.S. 361, 378, 31 S. Ct. 538, 543, 55 L. Ed. 771 (1911). In subsequent cases, the Supreme Court has made clear that the doctrine applies to corporate papers possessed and owned by a defunct corporation's former officers, Wheeler v. United States, 226 U.S. 478, 33 S. Ct. 158, 57 L. Ed. 309 (1913), to papers of associations such as labor unions, United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944), and to papers of a small law firm operating as a partnership, Bellis v. United States, 417 U.S. 85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974). The doctrine, as its rationale was articulated by Mr. Justice Thurgood Marshall in his opinion for the Court in Bellis v. United States, rests on two premises: (1) that subpoenas for non-private papers do not involve the coerced personal testimony historically protected by the fifth amendment; and (2) that access to the papers of an association is both less intrusive of privacy and more essential for public or private control of the association than access to private papers. The privilege is personal and therefore limited to materials held solely in an individual's personal capacity, wrote Justice Marshall, and "a substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity." Id. at 90, 92, 94 S. Ct. at 2184, 2185.

 Although the broad parameters and rationale of the corporate-private distinction are now clear, particular documents sought in subpoenas can give rise to considerable uncertainty. No fifth-amendment privilege applies when the government seeks the books and records of a company or association, such as ledgers, receipt books, minutes of directors' meetings, and other official or quasi-official documents. And documents "created or authenticated by a State or the Federal Government ... would seem ordinarily to fall outside the protection of the privilege. They hardly reflect an extension of the person." Fisher v. United States, supra, 425 U.S. at 426, 96 S. Ct. at 1588 (Brennan, J., concurring). By contrast "non-business economic records" (including non-business cancelled checks or tax records), personal letters, and papers "in the nature of a personal diary" are private, and therefore presumably protected. Id. at 427, 96 S. Ct. at 1589. Problems are posed by cases falling between these two extremes: for example, when the books sought are not required to be kept by the corporation or by any regulatory agency, but are kept merely for the individual corporate officer's convenience, particularly when the books or papers are preserved by the officer and maintained in his own possession and control outside the office.

 For guidance in interpreting the corporate-private distinction in the area of uncertainty, one must examine the first of the Supreme Court decisions expounding the distinction, Wilson v. United States, supra, which contains the only reasonably extensive judicial discussion of the issue. In that case, the president of a company was served with a subpoena demanding that he produce "letter press copy books", which contained copies of correspondence he had written. "(T)here can be no question of the character of the books here called for," said the Court. 221 U.S. at 377, 31 S. Ct. at 543. They were "books of the corporation," and copies of letters written by the president in the course of the company's business "were as much a part of its documentary property, subject to its control and to its duty to produce when lawfully required in judicial proceedings, as its ledgers and minute books." Id. The witness had asserted in the district court that the copy book contained, not only copies of his corporate correspondence, but his personal correspondence as well. The Court, however, noted that the witness's personal letters were not demanded and could readily have been removed. "Plainly he could not make these books his private or personal books by keeping copies of personal letters in them." Id. at 378, 31 S. Ct. at 543. Yet the witness refused to produce even the corporate letters contained in the book, arguing among other things that, because the corporate correspondence contained his own thoughts and words, his own testimony, he should not be forced to provide it pursuant to subpoena. The Court rejected that argument on the ground that a corporate document is no less subject to production because it consists in part of the writing of the individual subpoenaed to produce it.

 
(W)here an officer of a corporation has possession of corporate records which disclose his crime, there is no ground upon which it can be said that he will be forced to produce them if the entries were made by another, but may withhold them if the entries were made by himself. The books are no more his private books in the latter case than in the former; if they have been held pursuant to the authority of the corporation, that authority is subject to termination.

 Id. As a final argument, the witness contended that the records were protected because they were in the custody of an individual. In rejecting this argument, the Court held that access to corporate documents by people other than the individual having custody is part of the price of doing business in the corporate form, and that the corporate status of particular documents turns not on the corporation's ownership of them, nor on whether a regulatory agency or the corporation required them to be prepared, but on their "nature" and "the capacity in which they are held." Id. at 378-82, 31 S. Ct. at 543-45. The documents in Wilson were letters written to conduct corporate business and, as such, were corporate.

 In Wheeler v. United States, supra, the Court underscored the central holding of Wilson. The Wheeler Court held that documents corporate in their "essential character" must be produced under subpoena, even if they are held and owned by the witness. 226 U.S. at 490, 33 S. Ct. at 162. If ownership and right of access have any evidentiary significance for determining the corporate or private status of documents, therefore, they appear relevant primarily as of the time the documents are actually in use, when the corporation's possible ownership or right of access would likely have been manifested. Cases following Wilson and Wheeler have similarly emphasized the nature of the documents and the capacity in which they are held, rather than any particular facts such as ownership or right of access, in determining the corporate or private character of documents. See United States v. White, supra, 322 U.S. at 698-705, 64 S. Ct. at 1251-1254; Bellis v. United States, supra, 417 U.S. at 97-101, 94 S. Ct. at 2187-2190.

 Wilson and its progeny are not the only sources of guidance on the relevance and relative importance of particular circumstances in determining whether documents are corporate or private. The Supreme Court has considered cases involving "required records," e.g., Shapiro v. United States, 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948); Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968), and the lower federal courts have heard cases involving records very similar to those sought in this case. The required-records doctrine provides little guidance. It is an exception to the rule that a person doing business as an individual proprietor may assert a fifth-amendment privilege even with respect to business records. The exception to the privilege covers those records that the government requires an individual business proprietor to prepare, and the only limitation on the government's power to demand access to (and preparation of) specified records is that they involve some "public aspects." See e.g., Shapiro v. United States, supra, 335 U.S. at 32-35, 68 S. Ct. at 1391-1393; Grosso v. United States, supra, 390 U.S. at 67-69, 88 S. Ct. at 713-714. Wigmore has cogently argued that, for fifth-amendment purposes, it simply does not matter who required the record to be kept, who actually prepared the record, where it was maintained, why it was ...


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