Responding to Document Subpoenas

Applying the 5th Amendment privilege to document subpoenas can be difficult, but there are a few fundamental rules that are clear, one of which is the fact that although individuals have a 5th Amendment privilege, corporations, unincorporated associations, partnerships, and other types of organizations do not.

Any well-trained Sacramento criminal defense attorney will tell you that the process of choosing and producing documents has certain testimonial aspects, because it shows that the recipient retains control over the documents, that the documents are genuine, and that the documents produced meet the descriptions contained in the subpoena. Thus, a person has a right to claim the 5th Amendment privilege and decline to produce certain documents, unless he obtains an “act of production” immunity.

Simply put, if you are served with a document subpoena in your individual capacity, you can declare the 5th Amendment privilege, and the government, in order to overcome the privilege, must grant you an act of production immunity. Moreover, if you are required to testify to validate the documents (which typically doesn’t happen), your Sacramento criminal defense attorney may ask for an act of production immunity (unless there is no risk to you of self-incrimination) and insist that you are allowed to leave the grand jury room and confer with him or her after each question so that the prosecutor does not attempt to go any farther than asking questions to validate the documents.

With respect to corporations and organizations, whenever an entity is served a document subpoena, that entity must select someone to produce the documents, even if it only has one shareholder and employee who are the target of the investigation. Keep in mind, though, that the custodian’s production of the responsive documents cannot be used against him. However, the 5th Amendment privilege does not protect the contents of business records that were voluntarily created, nor does it protect most personal records.

If your company gets served with a document subpoena, your attorney will probably advise you that you cannot be involved in going through and choosing the documents to respond to the subpoena. If the entity has no other employees, you and your attorney will have to select an outsider to be the document custodian and search for the documents. Furthermore, the prosecutor can insist that the custodian testify not only to the authenticity of the documents, but also to describe his or her efforts when looking for and choosing the requested documents, and you definitely do not want that testimony to include anything about him or her having conversations with you.

If you need a dedicated Sacramento criminal defense attorney, please call Param Pabla at (916) 285-7900 for a consultation.