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Guarantee of No Self-Incrimination Applies to Former Corporate Employee
Description Appeals court held that former employees of a corporation, who were asserted to have company records in their possession relevant to a criminal investigation about the company, could claim Fifth Amendment protection and not be compelled to produce the documents.
Topic Constitutional Law
Key Words Self-Incrimination; Employees; Business Documents
C A S E   S U M M A R Y
Facts A company pled guilty to criminal charges for making false entries in corporate books and agreed to cooperate in the investigation of various individuals who were involved in the improper activities. Warrants were issued to three John Does who had been corporate officers at the time the activities took place. The three resigned or were fired before the subpoenas were issued. The district court ruled that the three individuals, who were in possession of corporate documents, could refuse to produce the documents by claiming self-incrimination. The government appealed.
Decision Affirmed. The Supreme Court's decision in Braswell v. U.S. in 1988 held that a current employee could be compelled to produce company documents, but that does not apply to former employees as they are no longer agents of the corporation. Any corporate records that they have in their possession are held in their personal, not representational, capacity. They do not have to incriminate themselves and are protected by the Fifth Amendment.
Citation In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999, - F.3d - (1999 WL 692023, 2nd Cir.)

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