custodians, may be able to invoke successfully a personal fifth amendment defense to enforcement of the subpoena. However, this does not answer the question whether the corporation may be ordered to appoint another custodian.
Although no controlling precedent is directly on point, review of several recent Third Circuit cases suggests that it is not improper to order the corporation to appoint an agent to produce the documents.
In United States v. Municipal Bond & Coll. Services, 810 F.2d 46 (3d Cir. 1987), the IRS issued a summons to appellant's "Custodian of Records," in connection with an investigation of the company's president, Prusan. Prusan was the custodian, and received use immunity. On appeal, the corporation challenged the district court's failure to accord Prusan derivative immunity. The court noted that several individuals other than Prusan could have produced the documents, id. at 48, that the corporation could not assert Prusan's constitutional rights, id. at 49, and that the corporation had no fifth amendment rights of its own to assert against the granting of immunity to Prusan. Id. at 49. Notwithstanding any rights Prusan might have, the court concluded that the corporation "has no right to refuse examination of the documents demanded by the subpoena." Id. at 48.
In United States v. Rogers Transp., Inc., 793 F.2d 557 (3d Cir. 1986), the district court ordered the corporation to produce records in response to a subpoena. The corporation was permitted to choose any representative it wished to produce such records, but did not produce the documents. At a contempt hearing, the special counsel employed by the corporation to locate the records and comply with the subpoena stated that the corporation's president and sole stockholder, Rogers, refused to speak with or otherwise assist special counsel. Special counsel was advised that Rogers would invoke his fifth amendment privilege. No other employee knew where the records were. The corporation argued that it did all it could to comply with the subpoena, and should not be held in contempt.
The court rejected this argument. "Any other determination in these circumstances would dilute the firmly established principle that the self-incrimination defense is not available to a corporation, even a so-called one person corporation." Rogers, 793 F.2d at 558. Accepting the corporation's argument would mean that "the corporation's obligation to obey such a court order turns on the whim of its principal executive." Id. Rogers rejects the notion that the custodian's fifth amendment rights can shield the corporation from complying with the subpoena.
The distinction between serving a subpoena on an unnamed custodian, as opposed to a named individual, was highlighted in Matter of Special Federal Grand Jury, 819 F.2d 56 (3d Cir. 1987). In that case, the court noted
The district court ordered appellant [an individual] to produce the documents sought. Compare United States v. Municipal Bond & Coll. Services, Inc., 810 F.2d 46, 48-49 (3d Cir. 1987), and United States v. Rogers Transp., Inc., 793 F.2d 557, 558 (3d Cir. 1986), in which corporations were ordered to comply with subpoenas that permitted any representative of the corporation to produce the records sought. Nothing that we say today forecloses the government from pursuing that approach. Nor is it foreclosed from pursuing its earlier suggestion in this case that another agent be appointed to produce the records.