Court Dusts Off Test for Determining if a Record Is “Corporate” or “Personal”

 In a little-noticed decision issued on June 3, 2020, In re: Grand Jury Proceeding, 961 F.3d 138 (2d Cir. 2020) (Grand Jury Proceeding), the U.S. Court of Appeals for the Second Circuit returned to a subject it has not addressed in nearly 40 years: how to determine whether a record is “corporate” or “personal” for Fifth Amendment purposes. That determination can be consequential both for prosecutors and the subjects of criminal investigations—because while an individual can withhold personal records from the government under the Fifth Amendment’s “act of production” privilege, corporate records garner no such protection.

In Grand Jury Proceeding, the court reaffirmed its practical approach to the issue; but in finding the records were corporate in nature, the court also departed from the lower court’s rationale, citing the limits of the “collective entity” exception to Fifth Amendment protection.

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