The opinion of the court was delivered by: SAND
On December 12, 1985, we delivered an oral Opinion (attached hereto in redacted and slightly modified form and incorporated by reference), in which we held that Theresa J. Shieh ("Shieh") was required to turn over to the Federal Deposit Insurance Corporation ("FDIC") any documents in her possession that are "required records" as that term has been defined. See Appendix infra. We then referred the matter to Magistrate Dolinger to determine which, if any, of the questioned documents could be so categorized. After making an in camera inspection of the documents and receiving an affidavit from Shieh, the Magistrate issued a Report and Recommendation finding none of the documents to be "required records."*
Over the objection of the FDIC, we hereby adopt and approve in full the Magistrate's well-reasoned Report. Whatever the FDIC may have shown about requirements that the Golden Pacific National Bank ("the Bank") record the information contained in the questioned documents, they have failed to demonstrate that these specific documents themselves were required to be kept.
Oral Decision of Judge Sand:
This proceeding is brought by the Federal Deposit Insurance Corporation ("FDIC") to enforce a subpoena duces tecum issued pursuant to 12 U.S.C. sections 1818(n) and 1820(c) as part of an investigation to determine whether the Golden Pacific National Bank ("the Bank"), which closed on or around June 21, 1985, had complied with federal banking laws and regulations.
Most of the material facts leading up to this proceeding are not in dispute. As part of its investigation, on September 3, 1985 the FDIC served both a subpoena ad testificandum and a subpoena duces tecum on Theresa J. Shieh ("Shieh"), who had been cashier and Executive Vice President of the Bank prior to its closing. The subpoenas were served on Shieh in her individual capacity and not as a representative of the Bank.
The subpoena duces tecum called for the production of:
any and all documents embodying, reflecting, relating or referring in any way to the former Golden Pacific National Bank, New York, New York, including, but not limited to, yellow certificates, international banking facility deposits, loan production office deposits, bank statements, account ledgers, canceled checks, deposit slips, and other records of any kind embodying, reflecting, relating or referring in any way to Golden Pacific National Bank.
it is the FDIC's position that Shieh may have taken the subpoenaed bank records "with her when she left the bank after it was closed." Memorandum in Opposition to Petition of FDIC to Enforce the Subpoena, page 9 (quoting counsel for the FDIC). Shieh, who neither confirms nor denies that she currently possesses the records, stands willing to respond to the subpoena ad testificandum but resists the subpoena duces tecum. One of her principal contentions is that even though the contents of the documents are not privileged, the act of producing the documents is privileged because such an act would violate her Fifth Amendment right against self-incrimination.
At the request of counsel for shieh, and over the objection of the FDIC, the court afforded counsel an opportunity in an ex parte proceeding, the transcript of which the court has ordered sealed, to advise the court of the existence of any special circumstances not disclosed in open court which would cause production of the documents to be incriminatory. There are two aspects of that in camera presentation. One aspect relates to the nature of the documents themselves and whether they may fairly be characterized as "required records," and we will deal with that later in this opinion. The other aspect of that presentation relates to whether or not the production of the documents, assuming them to be "required records," would be incriminatory under circumstances which would permit the valid invocation of Fifth Amendment rights. with respect to that latter issue, there was a reassertion of the views expressed by counsel for Shieh, appearing at page 9 of the Memorandum in Opposition to the Petition of FDIC to Enforce Subpoena:
"The reasonableness of Shieh's fear in this case is poignantly demonstrated by the words of counsel for the FDIC at oral argument on December 3, 1985, when he stated, 'They are documents that she took with her when she left the bank after it was closed.' Whether or not this is a factually accurate statement, it speaks for itself as an incriminating conclusion inferred from the fact of possession. Aside from the inference that the documents were wrongfully acquired, there may be inferences as to motive--to hide incriminating evidence (guilty knowledge of their contents), intent to obstruct justice by removing evidence, perhaps an element of conspiracy in that taking the documents was an act in furtherance of some illegal scheme, and so on. Surely it is not hard to see that there is a possibility that the fact of Shieh's possession and production may provide a link in a chain of evidence that may incriminate her, especially when there are both federal and state criminal investigations of the Golden Pacific National Bank in addition to the FDIC investigation."
Assuming for these purposes, and at this point in our analysis, that the subpoenaed records fall within the category of "required records," it remains to determine whether the Fifth Amendment to the United States Constitution accords a privilege against the requirement that they be produced because they might ...