More than twenty years ago the Supreme Court decided the case of Braswell v. United States, 487 U.S. 99 (1988), in which the Court extended to even small, closely-held corporations the principle that corporate entities have no Fifth Amendment privilege to assert in opposition to a subpoena seeking corporate records. In its famous, and tantalizing, footnote 11, however, the Court left open the possibility that a corporate records custodian could oppose a corporate documents subpoena if he/she could show that a jury would conclude inevitably, as with a one-person corporation, that this custodian personally produced the records. The Court has never revisited this question, leaving the ambiguity hanging.

Defense attorneys have ever since assiduously sought to use footnote 11 when defending sole shareholder corporations to argue that records need not be produced, else the custodian/sole shareholder would be implicating himself/herself by production of incriminating records. However, circuit courts of appeal and district courts have consistently resisted entering the wormhole of footnote 11, preferring to view the language as dictum, and falling back on the easily-applied principle that no corporate entity -- regardless of its size -- enjoys a Fifth Amendment privilege against production of documents.

The latest court of appeal to take the easy road through the Fifth Amendment jurisprudence is the Second Circuit in In re Grand Jury Subpoena, June 18, 2009 (Account Services Corp.), 593 F.3d 155 (2nd Cir. 2010). There, the court affirmed a contempt order entered against two corporations, wholly owned by an individual named Rennick, who was under indictment, because they refused on Fifth Amendment grounds to produce records. The court, calling Braswell's footnote 11 a "non-decision," id. at 158, aligned itself with numerous other courts in reaffirming the no-privilege principle as applied to corporations of any size.

But there is a staggering inconsistency in the resulting Fifth Amendment jurisprudence. The Supreme Court has made quite clear that where a subpoena names as respondent not a corporation but a particular corporate officer or shareholder, that individual respondent enjoys a Fifth Amendment act-of-production privilege to decline to produce documents. United States v. Hubbell, 530 U..S. 27 (2000). It is difficult logically to distinguish between Scenario A, where Rennick's corporation or the "custodian of records"of the corporation is named as respondent in a grand jury records subpoena and cannot resist the subpoena, even though the world will conclude that since there is only Rennick, he must have possessed and produced the inculpatory documents; and Scenario B, where the subpoena clumsily names Rennick as respondent and he may interpose the privilege. This is a classic distinction without a difference, and an elevation of form over substance. And that is the state of Fifth Amendment jurisprudence today.