United States v. John Doe 1

This case presents the question of whether an ex-employee of a corporation may assert a Fifth Amendment privilege to refuse to respond to a grand jury subpoena demanding that he produce documents belonging to his former employer on the ground that the act of producing the documents would be both testimonial and incriminating. Because we conclude that a Fifth Amendment privilege is available to the ex-employee in such circumstances, we affirm the order of the district court denying the government’s motion to compel production pursuant to the subpoenas in this case.

BACKGROUND

The essential facts in this appeal are undisputed. The subpoenas the government seeks to enforce were issued by a grand jury in the Southern District of New York in connection with the government’s criminal investigation of a corporation and its employees. The alleged wrongdoing, which included falsification of the corporation’s books and records and the misapplication of funds in the corporation’s custody, occurred between 1993 and 1996 in one division of the corporation. In the spring of 1999, the corporation pled guilty to making false entries in its books and records, and, pursuant to a plea agreement, agreed to cooperate in the government’s ongoing investigation of a number of individuals who may have been involved in the improper corporate activities.

Doe I, Doe II and Doe III were all officers of the corporation during the period in which the illegal activities occurred, and worked in the division where the *175wrongdoing took place. Before the subpoenas sought to be enforced were issued, the employees resigned from the corporation or their employment was terminated.

I. The 1996 Subpoenas

In June, September and October of 1996, the grand jury issued subpoenas to the corporation for records related to the investigation. The June subpoena, which was limited in scope, was not included in the record on appeal and was not presented to the district court. The government moved in this court to supplement the record to include the June subpoena, as well as two severance agreements between the corporation and Doe II and Doe III on the ground that such documents are material to the issues raised in this appeal. For completeness of the record, we grant the motion.1 The September subpoena was broad in scope, covering virtually all of the conduct ultimately investigated; the October subpoena supplemented the September subpoena, calling for the production of two specific documentary items.

Doe I and Doe II were corporate officers when all three subpoenas were served on the corporation and during the time in which the corporation responded to the subpoenas. In fact, an affidavit filed by the corporation’s counsel suggests that an attorney for the corporation met with Does I and II separately and asked them to produce responsive documents. Both Doe I and Doe II produced some responsive documents, but are alleged to have retained others. Doe I and Doe II left the corporation’s employment in March and July of 1997, respectively. When Doe II resigned, he signed a severance agreement in which he agreed to cooperate with the corporation in any investigation to follow.

Doe III resigned from the company in mid-July, 1996, after the June subpoena was issued and served. The corporation’s attorney attempted to contact Doe III to inquire whether she had responsive documents, but was unable to do so. The record is silent, however, on whether Doe III was aware of the June subpoena during the time she was still employed at the company. In any event, the government does not rely on Doe Ill’s awareness of the June 1996 subpoena in its arguments on appeal. Upon her departure, Doe III also entered into a severance agreement with the corporation, dated July 16, 1996, in which she too agreed to cooperate with any investigation that followed.

II. The January 1999 Subpoenas

Upon learning in January 1999 that a former company employee, not a party to these proceedings, had in her possession incriminating corporate records that were responsive to the 1996 subpoenas, but which had not been produced by the corporation, the government served grand jury subpoenas on twelve former employees — including Does I, II and III — whom the government believed maintained relevant records during their employment. The subpoenas each demanded “[a]ny and all records, documents, instructions, mem-oranda, notes and papers (whether in computerized or other form) in your care, custody, possession or control, that were created during the course of, or in connection with, your employment at [the corporation].”

Nine of the twelve former employees produced responsive documents. Doe I, Doe II and Doe III, however, declined to produce such documents, and asserted a Fifth Amendment privilege against their production. Doe II, alone, admitted to possessing responsive documents.2

*176III. Proceedings in the District Court

On February 19, 1999, the government moved in Part I of the District Court to compel Doe I, Doe II and Doe III to produce documents demanded by the January 29, 1999 subpoenas. The motion, filed under seal, argued that the responsive documents were corporate documents and that Doe I, Doe II and Doe III remained corporate custodians of those documents after they left the corporation. Accordingly, the government contended, the former officers’ claim of Fifth Amendment privilege was precluded by Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988), in which the Supreme Court, in an opinion authored by the Chief Justice, rejected a Fifth Amendment act of production privilege claim by a current employee and held that “the custodian’s act of production is not deemed a personal act, but rather an act of the corporation. Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation — which of course possesses no such privilege.” Braswell, 487 U.S. at 110, 108 S.Ct. 2284.

All three appellees opposed the motion, not on the ground that the Fifth Amendment protected the contents of the subpoenaed documents, but rather on the ground that they had a Fifth Amendment right not to produce the documents because that act of production itself was (1) compelled, (2) testimonial, and (3) incriminating, in that compliance was the equivalent of forced testimony as to the existence, unlawful possession, and/or authenticity of the documents, as well as a belief that the produced documents matched those requested by the subpoena. See Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

After full briefing and oral argument, Judge Sprizzo denied the government’s motion to compel in a ruling issued from the bench. The district court relied on our pre-Braswell decision, In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 and June 22, 1983, 722 F.2d 981, 986-87 (2d Cir.1983) [hereinafter] (“Saxon Industries ”), and the Fifth Amendment act of production doctrine established by the Supreme Court in cases such as Fisher and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), to hold that “the act of testimonial [production] on behalf of a person who is no longer with the corporation is self-incrimination in its classic sense of the word, and the Constitution does not permit it.” Judge Sprizzo stated further that the “question of testimonial incrimination is at its height when [the document] is produced by a person who is no longer employed by the corporation, because there is an inference that [he] may have stolen [it].” He noted that his holding was “predicated not only upon Saxon, but upon what I would do if Saxon were not even on the books.... Saxon just happens to hold the same way, but in fact if Saxon were not on the books, I would have reached the same conclusion.”

DISCUSSION

On appeal, the government contends that the district court erred in refusing to apply Braswell to reject a Fifth Amendment act of production privilege claim by former employees holding corporate documents. For the reasons that follow, we disagree. Some legal background is needed.

The Fifth Amendment provides, “No person ... shall be compelled in any criminal case to be a witness against himself.” Beginning with the case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and continuing until the Supreme Court’s decisions in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), this right against self-incrimination was construed:

*177to protect an individual from compulsory production of all of his personal records that might tend to incriminate him. The rationale ha[d] been that a person’s papers represent his personal communications and that without such protection he could be subjected to coercion designed to extract the evidence from him in the same manner as if he were forced to testify against himself.

Saxon Industries, 722 F.2d at 983 (citing Couch v. United States, 409 U.S. 322, 327-28, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973)).

Thus, under the now-discredited Boyd and its progeny, the Fifth Amendment inquiry centered on the nature and content of the subpoenaed documents: if papers were deemed private and were in the personal possession of the person claiming the privilege, the papers were protected, see Couch, 409 U.S. at 330-31 & nn. 10, 12, 93 S.Ct. 611; if, on the other hand, the papers were the records of an organization or “collective entity,” no Fifth Amendment privilege attached, see, .e.g., Wilson v. United States, 221 U.S. 361, 374-75, 31 S.Ct. 538, 55 L.Ed. 771 (1911) (corporation); United States v. White, 322 U.S. 694, 701-04, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944) (labor union); Bellis v. United States, 417 U.S. 85, 93-101, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (law partnership). It was in this context that the Court’s “collective entity doctrine” was established.

In Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), the Supreme Court rejected the argument that a corporate officer served with a subpoena for corporate documents (but personally immunized) could assert a Fifth Amendment privilege on behalf of the corporation. The Court held that a corporation was “a creature of the state” with powers limited by the state, and, thus, that the state could, in its oversight of the corporation, demand production of corporate documents. Id. at 74-75, 26 S.Ct. 370. Hale thus “carved an exception out of Boyd by establishing that corporate books and records are not ‘private papers’ protected by the Fifth Amendment.” Braswell, 487 U.S. at 105, 108 S.Ct. 2284.

Later, in Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), the Court held that a corporate president could not refuse to produce corporate records on the grounds that the books were personally incriminating. The Court stated:

[Wilson] held the corporate books subject to the corporate duty. If the corporation were guilty of misconduct, he could not withhold its books to save it; and if he were implicated in the violations of the law, he could not withhold the books to protect himself from the effect of their disclosures. The [State’s] reserved power of visitation would seriously be embarrassed if not wholly defeated in its effective exercise, if guilty officers could refuse inspection of the records and papers of the corporation. No personal privilege to which they are entitled requires such a conclusion.... [T]he visitatorial power which exists with respect to the corporation of necessity reaches the corporate books without regard to the conduct of the custodian....

When [Wilson] became president of the corporation and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place, his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize.

Id. at 384-85, 31 S.Ct. 538 (emphasis added); see also Dreier v. United States, 221 U.S. 394, 400, 31 S.Ct. 550, 55 L.Ed. 784 (1911) (applying Wilson where subpoena was addressed to the corporate custodian).

Later, the Court expanded the reach of the collective entity doctrine beyond the *178corporate circumstances presented in Hale and Wilson, by holding that entities such as labor unions, see White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, and partnerships, see Bellis, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678, were bound by the collective entity rule. In doing so, “the Court jettisoned reliance on the visitatorial powers of the State over corporations owing their existence to the State — one of the bases for earlier decisions.” Braswell, 487 U.S. at 108, 108 S.Ct. 2284. Instead, the Court relied on the fact that the individual subpoenaed held the collective entity’s records in “ ‘a representative capacity,’ ” rendering “ ‘his personal privilege against compulsory self-incrimination ... inapplicable.’ ” Id. (quoting Bellis, 417 U.S. at 101, 94 S.Ct. 2179).

It was against this backdrop that the Supreme Court held in 1976 in Fisher v. United States, 425 U.S. at 405-09, 96 S.Ct. 1569, and in 1984 in United States v. Doe, 465 U.S. at 610-12, 104 S.Ct. 1237, that the “foundations for the [Boyd ] rule have been washed away,” Fisher, 425 U.S. at 409, 96 S.Ct. 1569, and that the contents of voluntarily-prepared records are not protected by the Fifth Amendment against compelled production, see Doe, 465 U.S. at 610-12, 104 S.Ct. 1237. However, in Fisher, the Court recognized that a person, in the act of producing a document, may communicate information apart from its contents, and that the communication may amount to compelled testimony:

The act of producing evidence in response to a subpoena ... has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [person subpoenaed]. It would also indicate the [personj’s belief that the papers are those described in the subpoena. Curdo v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).

Fisher, 425 U.S. at 410, 96 S.Ct. 1569; see also Doe, 465 U.S. at 612, 104 S.Ct. 1237 (“A government subpoena [for documents] compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect.”). Accordingly, it is now settled that an individual may claim an act of production privilege to decline to produce documents, the contents of which are not privileged, where the act of production is, itself, (1) compelled, (2) testimonial, and (3) incriminating. See Doe, 465 U.S. at 612-14, 104 S.Ct. 1237. In Doe, the Court upheld an act of production privilege claim upon the district court’s factual finding that production of the documents in question would be both testimonial and self-incriminating. See id. at 613-14, 104 S.Ct. 1237.

United States v. Braswell

In Braswell, the Court addressed the question of whether a current corporate employee could claim a Fifth Amendment act of production privilege to refuse to produce corporate documents. The Court held that the employee — an officer of two closely-held corporations — who had been individually subpoenaed to produce corporate books and records, could not invoke the Fifth Amendment to refuse production even though the documents might provide the government with evidence that could incriminate him. See Braswell, 487 U.S. at 109-10, 108 S.Ct. 2284. The Court stated:

[T]he custodian of corporate or entity records holds those documents in a representative rather than a personal capacity. Artificial entities such as corporations may act only through their agents, and a custodian’s assumption of his representative capacity leads to certain obligations, including the duty to produce corporate records on proper demand by the Government. Under those circumstances, the custodian’s act of production is not deemed a personal act, but rather an act of the corporation. Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the *179corporation — which of course possesses no such privilege.

Id. (citation omitted). In short, the Court applied the collective entity doctrine, introduced by Hale and developed in Wilson and its progeny, to preclude the claim of an act of production privilege by a current corporate employee. In doing so, the Court employed something of a fiction — to wit, that a corporate employee acts only as an agent or custodian of the corporation when he produces corporate documents in response to a subpoena, even a subpoena directed to the employee personally. See Braswell, 487 U.S. at 126-28, 108 S.Ct. 2284 (Kennedy, J., dissenting).

While a current employee is not entitled to raise the Fifth Amendment as a shield against producing corporate documents under the rule set forth in Braswell, the Braswell Court created a mitigating evi-dentiary privilege to reduce the risk that the individual will incriminate himself in the course of producing such documents. The Court stated that:

Although a corporate custodian is not entitled to resist a subpoena on the ground that his act of production will be personally incriminating, we do think certain consequences flow from the fact that the custodian’s act of production is one in his representative rather than personal capacity. Because the custodian acts as a representative, the act is deemed one of the corporation and not the individual. Therefore, the Government concedes, as it must, that it may make no evidentiary use of the “individual act” against the individual. For example, in a criminal prosecution against the custodian, the Government may not introduce into evidence before the jury the fact that the subpoena was served upon and the corporation’s documents were delivered by one particular individual, the custodian. The Government has the right, however, to use the corporation’s act of production against the custodian. The Government may offer testimony — for example, from the process server who delivered the subpoena and from the individual who received the records — establishing that the corporation produced the records subpoenaed.

Id. at 117-18, 108 S.Ct. 2284.

We have since had occasion to apply Braswell to deny to a current employee of a collective entity a Fifth Amendment privilege to decline to produce documents. In In re Grand Jury Subpoenas Dated October 22, 1991, and November 1, 1991, 959 F.2d 1158, 1163 (2d Cir.1992), following Braswell, we held that “the custodian of corporate records has no Fifth Amendment privilege to refuse to produce those records on the ground that the act of production itself would tend to incriminate him.” See also New York State Nat’l Org. for Women v. Terry, 886 F.2d 1389, 1356 (2d Cir.1989).

Applicability of Braswell in Context of Former Employees

The question presented by this appeal, however, is different from that presented in Braswell. It is whether former employees of a corporation, who have corporate documents in their possession, may claim an act of production privilege notwithstanding Braswell. To hold, as the government suggests, that Braswell governs this appeal would require an extension of Braswell to the former employee based upon a conception that the former corporate employee who has corporate records holds them solely in a representative capacity, and acts as the corporation’s agent when he or she produces them, even though the employment relationship has ended. Such a holding would also require us to overrule our decision in Saxon Industries, which is otherwise on point.

Saxon Industries, 722 F.2d 981 (2d Cir.1983), involved an appeal by a former corporate officer who was held in civil contempt for his refusal to comply with a grand jury subpoena duces tecum commanding production of corporate records retained by him after he left the corporation. Though decided before Braswell, the *180Saxon Industries panel anticipated its holding, stating that “if the witness were still a [corporate] officer or employee he would normally be obligated as a representative of the company to produce its documents, regardless of whether they contained information incriminating him.” Id. at 986. We held, however, that “[o]nce the officer leaves the company’s employ, ... he no longer acts as a corporate representative but functions in an individual capacity in his possession of corporate records.” Id. at 986-87. Thus, in Saxon Industries, we remanded the case to the district court to determine “whether appellant’s production of the [corporate] documents, regardless of their contents, might have [a] self-incriminatory effect.” Id. at 987. We further noted that should the district court determine that the production would prove incriminatory, “the government could either by stipulation or by obtaining a grant of immunity pursuant to 18 U.S.C. §§ 6002-6003, immunize the act of production; such immunity would preserve the appellant’s Fifth Amendment rights with respect to his conduct in producing the documents, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).” Id. at 988.

The government and the dissent attempt to distinguish Saxon Industries, by noting that, in this case, unlike in Saxon Industries, (1) the documents were originally commanded via subpoenas directed at the corporation at a time, in 1996, when Does I, II and III were still employed by the corporation,3 and (2) Doe II and Doe III signed severance agreements with the former employer which obligated them to cooperate in any ongoing investigations. We do not agree that these facts provide a basis for distinguishing Saxon Industries.

As to the first contention, we fail to see how the service of subpoenas on the corporation in 1996, even assuming that the Doe employees knew of the subpoenas, converted all three Does into corporate custodians for any corporate records they might possess after they left the corporation and for an indefinite period into the future. As to the second contention, neither the government nor the dissent has presented any authority for the proposition that a severance contract can create anything other than contractual duties between an employee and his or her former employer. Such a contract would not affect otherwise applicable Fifth Amendment rights, absent some form of voluntary and express waiver of such rights not present here. While the severance agreements required Doe II and Doe III to cooperate with the corporation in connection with any future investigations, the agreements do not include a waiver of Fifth Amendment rights. We do not agree with the dissent’s assertion that, “[i]n light of the agreements, ... it is fair to argue that the former employees continued to ‘act[ ] as corporate representative[s],’ Saxon Industries, 722 F.2d at 986-87, at least for the limited purposes of holding any responsive documents.... ” See infra at 182. There is simply no basis in law for interpreting the severance agreements as giving rise to a continuing agency relationship between the former employees and their former employer. Thus, we are unable to find a principled reason to distinguish Saxon Industries from this case.

Alternatively, the government suggests that Saxon Industries does not survive Braswell. The government asserts that Braswell’s reasoning is equally applicable in the context of a former employee, because: (1) simply stated, Braswell stands for the principle that the collective entity doctrine overcomes the act of production principle whenever the documents subpoenaed are corporate documents; (2) Braswell ’s reliance on cases such as Bellis and Wheeler v. United States, 226 U.S. 478, 489-90, 33 S.Ct. 158, 57 L.Ed. 309 (1913) suggests that Braswell’s holding extends *181to former employees; and (3) Braswell, by creating the evidentiary privilege discussed above, resolved the problem that concerned us in Saxon Industries regarding how to protect a former employee against the personal consequences of producing corporate documents when his act might prove personally incriminating.

We disagree that Braswell affects our holding in Saxon Industries and hold that the latter remains good law. The rule in Braswell was predicated on the rationale that corporate custodians hold and produce documents only in a representational capacity and that when a corporate custodian produces subpoenaed corporate records, at bottom, “the corporation pro-ducéis] the documents subpoenaed.” Braswell, 487 U.S. at 118, 108 S.Ct. 2284. It follows, as we noted in Saxon Industries, that once the agency relationship terminates, the former employee is no longer an agent of the corporation and is not a custodian of the corporate records. When such an individual produces records in his possession he cannot be acting in anything other than his personal capacity. In no sense can it be said, as Braswell requires, that