Court Dusts Off Test for Determining if a Record Is "Corporate" or "Personal"
It's the first time the Court has applied the test since articulating it in 1981.
August 27, 2020 at 10:00 AM
5 minute read
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.
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