The opinion of the court was delivered by: CAHN
Before me are three motions by the government to enforce grand jury subpoenas served upon a target of the grand jury's investigation ("the target"). I will grant the government's motion in part and deny it in part.
The three subpoenas at issue direct the target to appear before the grand jury and bring with him copies of specified corporate records of four corporations. The target is an officer of all four corporations. All three subpoenas were returnable the same day.
On that day, the target appeared before the grand jury and produced five white envelopes which contained what appeared to be corporate records.
The grand jury obtained additional records fitting the descriptions in the subpoena through the target's attorney and through his accountant. In addition, the government alleges that the target's attorney told the government that the target had "lost" certain records which the target's attorney originally represented it would deliver to the government.
Citing his fifth amendment privilege against self-incrimination, the target has refused to identify the documents produced in response to the subpoenas duces tecum, has refused to state for the record that the records he produced were made in the regular course of business, and has refused to identify subpoenaed corporate records that were not produced by him because he did not have possession or control of them when they were subpoenaed.
A. May the target refuse to identify corporate records already produced?
B. May the target refuse to inform the grand jury of corporate records that he did not produce because he did not have possession or control over them when subpoenaed?
A. THE TARGET MUST IDENTIFY CORPORATE RECORDS ALREADY PRODUCED
It is well settled that a corporation is not protected by the constitutional privilege against self-incrimination. A corporate agent has a duty to produce the corporation's records, even where the records might incriminate him personally. Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771 (1911). It is also well settled that an agent of a corporation retains a personal privilege against self-incrimination. Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1957). However, this personal privilege does not include the identification of corporate documents already produced. Such identification is testimony auxiliary to the unprivileged production of corporate documents. United States v. Austin-Bagley Corporation, 31 F.2d 229 (2d Cir. 1929) (L. Hand, J.). Requiring a corporate agent such as the target to identify documents already produced "merely makes explicit what is implicit in the production itself." Curcio v. United States, 354 U.S. at 125, 77 S. Ct. at 1150 (dictum); United States v. O'Henry's Film Works, Inc., 598 F.2d 313, 318 (2d Cir. 1979); In re Grand Jury (Brussel), 435 F.2d 350, 352 (7th Cir. 1971); United States v. Held, 435 F.2d 1361, 1366 (6th Cir. 1970). See Haner v. United States, 440 U.S. 1308, 1309, 99 S. Ct. 1485, 1486, 59 L. Ed. 2d 762 (1979) (confirming above dictum in Curcio ).
I also hold that testimony as to whether each document produced was kept in the regular course of business is auxiliary to the production of documents, and so not ...