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.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]