KAREN SEE AND ALAN R. CUNNINGHAM, PETITIONERS V. UNITED STATES OF AMERICA No. 85-1987 In The Supreme Court Of The United States October Term, 1986 On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Summary of argument Argument: The compelled production of corporate records is not barred by Cunningham's privilege against compulsory self-incrimination A. A person holding corporate documents may not refuse to produce them on the basis of his individual privilege against compulsory self-incrimination 1. The collective entity role is an important and well-established principle of Fifth Amendment law 2. The rationale supporting the collective entity rule is as sound today as ever B. An attorney may not refuse to produce corporate documents on the basis of a client's privilege against compulsory self-incrimination C. Petitioners have not shown that See's act of producing the records could constitute testimonial incrimination of Cunningham Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 5a-14a) is reported at 784 F.2d 857. The opinion of the district court (Pet. App. 15a-20a) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 21, 1986. A petition for rehearing was denied on April 4, 1986 (Pet. App. 4a). The petition for a writ of certiorari was filed on June 2, 1986, and was granted on October 6, 1986 (J.A. 79). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the attorney for a former officer of a defunct corporation may resist a subpoena for corporate records in the attorney's possession on the ground that the attorney's act of producing them would violate the client's privilege against compulsory self-incrimination. STATEMENT 1. Petitioner See, an attorney, has physical possession of certain records of Westech Corp., a corporation that is now defunct. Petitioner Cunningham, an intervenor in this action, is See's client and a former officer of the corporation. A grand jury in the Western District of Missouri is investigating the alleged submission of false claims and false statements to the federal government by Westech, Cunningham, and others. Pet. App. 6a-7a. The investigation arose out of Westech's participation, as the prime contractor, in a multi-million-dollar Department of Defense construction project at the White Sands Missile Range in New Mexico. Fireman's Fund Insurance Co. issued a performance bond for the construction project. The government paid the contract price of more than $6.6 million directly to Westech because Westech had certified that all its subcontractors and vendors had been paid. Pet. App. 6a. In 1983, numerous subcontractors began to file claims with Fireman's Fund under the performance bond. The Defense Contract Audit Agency conducted an audit of the construction project and discovered "major discrepancies" between Westech's general ledger and its financial statements. The government auditors suspected that Westech had submitted false claims to the Department of Defense in connection with the construction project. Id. at 6a-7a. 2. In March 1985 the grand jury issued a subpoena to petitioner See calling for the production of relevant Westech records in See's possession. /1/ The records had been given to See by Cunningham, who had held them as a representative of the corporation and not in his individual capacity. Pet. App. 7a, 11a-12a. See filed a motion to quash the subpoena, arguing primarily that her act of producing the records would compel an incriminating testimonial communication by her client in violation of the Fifth Amendment (J.A. 6-10). In addition, See contended that the production of the records would violate the attorney-client privilege and the work product doctrine (J.A. 10). The parties agreed that See would not have to appear before the grand jury until the district court ruled on the motion to quash. The district court also granted Cunningham's motion to intervene. Pet. App. 7a; J.A. 32. The government opposed the motion to quash on several grounds. Among other things, the government argued that one who holds corporate records may not refuse to produce them on the basis of his individual Fifth Amendment privilege (J.A. 16-18, 43); that See could not assert that her act of producing the records would violate any act-of-production privilege that Cunningham might have (J.A. 45); and that petitioners had not shown that the act of production would rise to the level of testimonial incrimination of Cunningham (J.A. 18-19). At the hearing on the motion to quash, the government also stated that, if See produced the records, the government would not ask her from whom she got them (J.A. 64). The government also suggested that the subpoenaed records could be turned over to the grand jury by FBI agents in order to obviate any Fifth Amendment problem (J.A. 61). The government stated that it would rely on other employees and officers of Westech in order to authenticate the documents (ibid.). The government added that it was "not interested in Cunningham's testimony" or in forcing him to incriminate himself in any way (J.A. 61-62). The district court denied the motion to quash. The district court observed that there was "no evidence, other than a bare allegation, of how producing these records would incriminate Cunningham" (Pet. App. 18a). The district court also held that a custodian of corporate records has no Fifth Amendment privilege to refuse to produce those records pursuant to subpoena on the ground that the act of production would incriminate him (id. at 15a-20a). Finally, the court held that neither the attorney-client privilege nor the work product doctrine barred the compelled production of the Westech records by See (id. at 20a). 3. After an expedited appeal, the court of appeals affirmed (Pet. App. 5a-14a). The court held that, under Fisher v. United States, 425 U.S. 391 (1976), See as attorney could assert any Fifth Amendment privilege possessed by Cunningham, her client (Pet. App. 9a, 20a). Nevertheless, the court held that Cunningham had no Fifth Amendment privilege to assert with respect to the Westech records. In reaching that result, the court relied on the long-established rule, reaffirmed in numerous decisions of this Court, that the books and records of a collective entity such as a partnership or corporation cannot be insulated by a claim of personal privilege on the part of their custodian (Pet. App. 11a-12a). The court rejected the argument that United States v. Doe, 465 U.S. 605 (1984), "created an expanded 'act of production' doctrine for business records generally and thus significantly modified the collective entity rule" (Pet. App. 12a). The court explained that, although Doe recognized that the production of business records by a sole proprietor may be a testimonial act protected by the Fifth Amendment (id. at 12a-13a), it "nowhere suggests its holding should be applied to corporate or other collective entities" (id. at 13a) and should not be interpreted as "implicitly overrul(ing) a rule of such longevity as the collective entity rule" (ibid.). The court also explained that Cunningham, by producing corporate records, would not be implicitly testifying to his personal possession of them but would merely be attesting to their existence and possession by the corporation (id. at 12a). Agreeing with the decision in In re Grand Jury Proceedings (Morganstern), 771 F.2d 143, 148 (6th Cir. 1985) (en banc), cert. denied, No. 85-658 (Dec. 16, 1985), the court held that the government could not later "'attempt to implicate (Cunningham) on the basis of the act of production'" (Pet. App. 12a). SUMMARY OF ARGUMENT A. Petitioners do not claim that the Fifth Amendment protects against disclosure of the contents of corporate documents. They argue, however, that an individual in possession of corporate documents may interpose his own personal Fifth Amendment privilege to resist producing those documents on the ground that the individual's act of production would be both incriminatory and testimonial in nature. Petitioners ask this Court to overrule the "collective entity rule," which holds that a custodian may not block access to corporate documents on the basis of his personal privilege. That rule was established in 1911 and has been reaffirmed repeatedly, most recently in Fisher v. United States, 425 U.S. 391 (1976). The collective entity rule, which is of enormous importance in the investigation and prosecution of white-collar crime, complements the undisputed principle that the corporation itself has no privilege against incriminating itself or its officers or employees. The collective entity rule is as valid today as it has been throughout the past 75 years. The rule is best explained by the recognition, prominent in this Court's past decisions, that a corporate custodian is acting as the agent of the corporation and not as an individual when he produces documents; his freedom from compelled self-incrimination does not protect him against incrimination by the corporation's act of producing documents. Consistent with that rationale, the government may not treat the act of production as an individual rather than a corporate act in any subsequent proceeding. The government may, however, make use of the corporation's act of production to show the authenticity of the documents, their existence, and their possession by the corporation. B. Even if the custodian of corporate documents could assert his personal Fifth Amendment privilege with respect to the act of producing those documents, there would be no valid basis for Cunningham to assert that See's act of production would be protected by the Fifth Amendment or attorney-client privilege. Fisher forecloses any claim that the Fifth Amendment gives an attorney a privilege not to produce documents received from a client. To be sure, Fisher holds that the attorney-client privilege bars the government from compelling an attorney to produce a client's individual records that would be unobtainable if they were in the hands of the client. Because the Fifth Amendment does not foreclose government access to corporate documents, however, Fisher's application of the attorney-client privilege does not extend to corporate documents. Even if has a personal act-of-production privilege, an individual in possession of corporate documents must give them to someone to produce in response to an otherwise valid governmental demand. Unless the attorney claims personal self-incrimination through the act of production, the attorney is as appropriate a person as any to produce the documents. C. Even if Cunningham may assert a personal privilege in this case, and even if he may do so as to his attorney's production of the documents, the judgment of the court of appeals should still be affirmed. The district court found that petitioners had not shown that production would be an incriminating testimonial act, and that finding is supported by the record. The documents sought are standard business documents whose existence is a foregone conclusion, and petitioners, unlike the subpoenaed individual in United States v. Doe, 465 U.S. 605 (1984), have repeatedly conceded the existence and See's possession of the documents. In addition, the record shows that the government will not need to rely on the act of production in order to authenticate the documents, because other persons formerly associated with Westech Corp. are available and legally competent to perform that task. ARGUMENT THE COMPELLED PRODUCTION OF CORPORATE RECORDS IS NOT BARRED BY CUNNINGHAM'S PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION The issue in this case is whether the district court should have granted petitioners' motion to quash the subpoena directed at See because compliance with the subpoena would violate Cunningham's privilege against compulsory self-incrimination. Petitioners do not argue that they can resist the subpoena on the ground that the contents of the subpoenaed documents would incriminate Cunningham. Such an argument would be unavailing in view of this Court's decisions holding that the Fifth Amendment does not protect the contents of business records voluntarily prepared before the subpoena for them was issued. United States v. Doe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). Rather, they argue that the compelled act of producing the subpoenaed documents would incriminate Cunningham in that it would implicitly acknowledge the existence of the subpoenaed documents, their authenticity, and Cunningham's control of them. That argument, however, is foreclosed by this Court's decisions that have repeatedly held that a custodian of corporate records such as Cunningham has no Fifth Amendment privilege to refuse to comply with a subpoena for those records. Petitioners' suggestion that this Court has implicitly abandoned that line of authority is not convincing. A. A Person Holding Corporate Documents May Not Refuse to Produce Them on the Basis of His Individual Privilege Against Compulsory Self-Incrimination 1. The Collective Entity Rule Is An Important and Well-Established Principle of Fifth Amendment Law Petitioners argue that a custodian of corporate documents may refuse to produce those documents on the ground that the testimonial component of the act of production would incriminate him. This Court, however, has repeatedly upheld subpoenas against the custodians of documents belonging to corporations or other collective entities, over claims that the documents will incriminate the custodian, "despite the fact that producing the documents tacitly admits their existence and their location in the hands of their possessor." Fisher v. United States, 425 U.S. at 411. That "collective entity rule" applies directly to this case, for the Court has applied it to ongoing and defunct entities alike. See Wheeler v. United States, 226 U.S. 478 (1913) (defunct corporation); Grant v. United States, 227 U.S. 74 (1913) (same); Bellis v. United States, 417 U.S. 85 (1974) (defunct partnership). /2/ By arguing that the "act of production" doctrine should be extended to corporate custodians, petitioners are in effect asking this Court to overrule the collective entity rule. The step that petitioners ask this Court to take is a large one indeed. The collective entity rule dates back to 1911, when the Court recognized the rule in the seminal case of Wilson v. United States, 221 U.S. 361 (1911). Since that time, the Court has reaffirmed the collective entity rule "time and again" (Fisher, 425 U.S. at 411). The predicate for the collective entity rule is the even older rule that the privilege against compelled self-incrimination extends only to natural persons, not to corporations. That rule, first articulated in Hale v. Henkel, 201 U.S. 43 (1906), is as settled as any principle of Fifth Amendment law. See Bellis v. United States, 417 U.S. at 90; United States v. Kordel, 397 U.S. 1, 7 & n.9 (1970); George Campbell Painting Corp. v. Reid, 392 U.S. 286, 288-289 (1968); Wheeler v. United States, 226 U.S. at 489. /3/ Because a corporation cannot invoke the privilege on its own behalf, and because the privilege may be invoked only by the party who is subject to incrimination (Hale v. Henkel, 201 U.S. at 69-70), it is clear that a corporation cannot invoke the Fifth Amendment to protect against the incrimination of any natural person, including the corporation's officers and employees. Petitioners do not contend otherwise. What remained to be decided after Hale was whether an individual could refuse to produce corporate records on the ground that he would incriminate himself. In Wilson and its companion case, Dreier v. United States, 221 U.S. 394 (1911), the Court held unequivocally that he could not. The Court stated in Wilson (221 U.S. at 384): "The appellant held the corporate books and records subject to the corporate duty. If the corporation were guilty of misconduct, he could not withhold its books to save it; and if he were implicated in the violations of law, he could not withhold the books to protect himself from the effect of their disclosures." Summarizing Wilson, the Court added in Dreier (221 U.S. at 400): "Dreier was not entitled to refuse the production of the corporate records. By virtue of the fact that they were the documents of the corporation in his custody, and not his private papers, he was under obligation to produce them when called for by proper process." The collective entity rule has become firmly entrenched in this Court's juriprudence. Since Wilson, this Court has reaffirmed the rule on 11 occasions, and not a single Justice has questioned the rule. /4/ As recently as 1976 -- in the very case that petitioners claim "rejected (the) conclusion that a custodian's fifth amendment claim is not an assertion of a personal privilege" (Pet. Br. 20) -- the Court reaffirmed that "neither a (collective entity) nor the individual (representatives of the entity) are shielded from compelled production of * * * records (of the entity) on self-incrimination grounds" (Fisher, 425 U.S. at 408). /5/ Besides being well established, the collective entity rule is extremely important. Grand jury subpoenas for corporate documents provide invaluable assistance in the detection and prosecution of white-collar crime, which has been called "the most serious and all-pervasive crime problem in America today." /6/ As this Court has recognized, "(t)he greater portion of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization." United States v. White, 322 U.S. 694, 700 (1944). "Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible" (ibid.; accord Bellis, 417 U.S. at 90-91). "If * * * an officer or employ'e of a corporation * * * could refuse to produce the (corporation's) books and documents * * * it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers" (Hale, 201 U.S. at 74). /7/ Detection of white-collar crime often depends not only on obtaining access to documents, but also on comparing large numbers of facially innocuous documents to discern a pattern that gives rise to an inference of illegal behavior. /8/ Accordingly, broad subpoenas for large and sometimes general categories of documents -- exactly the kind of subpoenas that courts have been reluctant to enforce over a claim of act-of-production privilege -- are often the only means by which crime can be detected. /9/ In sum, the abolition of the collective entity rule, and the recognition of a privilege on the part of custodians of corporate documents, would have a devastating impact on one of the most important areas of law enforcement. Petitioners assert (Pet. Br. 17 n.4, 33-34) that the prosecution of corporate crime would not be impaired by the recognition of a privilege for corporate custodians. Their argument is that the government can obtain corporate documents by immunizing the custodians' act of production under the federal immunity statute, 18 U.S.C. 6002-6003. Grants of immunity, however, could have a severe impact on the government's ability to detect and prosecute corporate crime. Act-of-production immunity might not be troublesome if it meant only that the government could not make evidentiary use of the custodian's tacit acknowledgment that the documents produced under a grant of immunity existed, were in his possession, and were the documents described in the subpoena. Use immunity, however, normally involves a much more sweeping prohibition: it bars the government from making any derivative use of immunized testimony in its investigation of crime. Kastigar v. United States, 406 U.S. 441, 460 (1972); see also Pillsbury Co. v. Conboy, 459 U.S. 248, 255 (1983). Because of the difficulties of proving at trial that immunized testimonial conduct was not directly or indirectly used in the investigation, it has been noted that "the prohibition against derivative use may have disastrous consequences for the prosecution" (Alito, Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 101, 137 (1986)) and that "this alternative may preclude prosecution of the claimant" (Heidt, supra note 9, 49 Mo. L. Rev. at 482 n.172). For example, when an immunized witness produces documents, but the documents do not show on their face that they are the documents described in the subpoena, the witness has made a tacit statement concerning the nature of the documents. That "statement" may be a valuable investigative lead. Yet, if the corporate representative must be granted act-of-production immunity, including derivative immunity, in exchange for compelling him to produce corporate documents, the government may be foreclosed from following up on that investigative lead unless it is willing to forgo using subsequently uncovered evidence against the immunized witness. See Alito, supra, 48 U. Pitt. L. Rev. at 137-138. As a consequence, the price of obtaining corporate records, when the records are in the possession of a corporate representative who is suspected of involvement in criminal conduct, may be to exempt the corporate representative from prosecution, or at least to make investigation and prosecution, of such a representative even more difficult than it has been in the past. /10/ 2. The Rationale Supporting The Collective Entity Rule Is As Sound Today As Ever Petitioners argue that the collective entity rule is a "rule without a rationale" (Br. 40) and that this Court should jettison the rule as being inconsistent with the Court's Fifth Amendment analysis in Fisher and Doe. We submit, to the contrary, that the rationale underlying the collective entity rule is as viable now as it has ever been, and that there is nothing in either Fisher or Doe that undercuts the rule. a. The Court has set forth four related justifications for the collective entity rule. First, the Court has stated that a custodian of corporate documents is deemed to waive his Fifth Amendment privilege by accepting custody of the corporation's property. See Curcio v. United States, 354 U.S. at 124-125 ("By accepting custodianship of records (the custodian) 'has voluntarily assumed a duty which overrides his claim of privilege' * * * with respect to the production of the records themselves."); Wilson v. United States, 221 U.S. at 380. Second, the Court has reasoned that the corporation, having no privilege of its own, should not be given a de facto privilege by recognizing a personal privilege in the custodian of its documents. In Bellis, the Court explained that "recognition of the individual's claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations" (417 U.S. at 90). See also Wilson v. United States, 221 U.S. at 384-385 ("The reserved power of visitation would seriously be embarrassed, if not wholly defeated in its effective exercise, if guilty officers could refuse inspection of the records and papers of the corporation."). Third, the Court has noted that the collective entity rule is essential to law enforcement and has only a minimal impact on Fifth Amendment values. As the Court explained in United States v. White, 322 U.S. at 700. (t)he scope and nature of the economic activities of incorporated and unincorporated organizations and their representatives demand that the constitutional power of the federal and state governments to regulate those activities be correspondingly effective. * * * The framers of the constitutional guarantee against compulsory self-disclosure, who were interested primarily in protecting individual civil liberties, cannot be said to have intended the privilege to be available to protect economic or other interests of such organizations so as to nullify appropriate governmental regulations. See also Bellis v. United States, 417 U.S. at 90-91; 8 J. Wigmore, Evidence Section 2259b, at 360-361 (J. McNaughton rev. ed. 1961); Alito, supra page 15, 48 U. Pitt. L. Rev. at 143-144; Meltzer, Required Records, the McCarran Act, and the Privilege Against Self-Incrimination, 18 U. Chi. L. Rev. 687, 705-706 (1951); Developments in the Law -- Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227, 1283 (1979); cf. Note, supra note 7, 54 Fordham L. Rev. at 950-951 & nn.118 & 120. Finally, and most importantly, the Court has pointed out that the individual who produces corporate documents on behalf of the corporation does not do so in his individual capacity, but rather as the agent of the corporation, so that the act of production, if incriminatory, constitutes incrimination of the individual by the corporation, rather than incrimination of the individual by his own words or deeds. See Wilson v. United States, 221 U.S. at 385 ("When the appellant became president of the corporation and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize."); Essgee Co. v. United States, 262 U.S. 151, 158 (1923) ("(A)n officer of a corporation in whose custody are its books and papers is given no right to object to the production of the corporate records because they may disclose his guilt. He does not hold them in his personal capacity and is not, therefore protected against their production or against a writ requiring him as agent of the corporation to produce them."). As this Court explained in United States v. White, 322 U.S. at 699, individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally. Since the decision in White, that rationale for the rule has been reiterated on several occasions. See Curcio v. United States, 354 U.S. at 123; Fisher v. United States, 425 U.S. at 430 n.9 (Brennan, J., concurring in the judgment); see also Wheeler v. United States, 226 U.S. at 489-490 (applying the same rationale to a defunct corporation). Taken together, these justifications for the collective entity rule can be summarized as follows: A corporation called on to turn over documents must act through a human being. Necessarily, then, an individual who has undertaken to act for the corporation is cloaked with the corporate mantle when he performs the act of producing documents. The corporation may be compelled to produce documents notwithstanding any incrimination of the corporation or any individual. Therefore, when an individual acts as the agent of the corporation -- as he does whenever he produces corporate documents -- it is the corporation and not the individual who is turning over the documents, and there is no privilege available for either the individual or the corporation to claim. In other words, when a custodian of the records of a collective entity produces those records, he does so as an agent of the entity, not as an individual; his act is not his own but the entity's. And because the act is the entity's, it is not self-incriminating as to the individual, regardless of how damaging the production of the documents might be. Accordingly, the custodian's act of producing corporate records does not implicate his Fifth Amendment privilege. b. We do not understand petitioners to quarrel with this analysis as an accurate statement of the law before this Court's decisions in Fisher and Doe. Rather, their argument is that Fisher and Doe completely changed Fifth Amendment law in a way that requires the rejection of the collective entity rule. An examination of Fisher and Doe rebuts that contention. In Fisher, this Court rejected the argument that an individual may decline to produce his voluntarily prepared business records on the ground that the contents of those records might incriminate him. Because the disclosure of the contents of such records is not testimonial, the Court held, the privilege against compulsory self-incrimination provides no protection against such disclosure. When an individual is called on to produce such records, the Court noted, the only possible source for a claim of privilege is the testimonial aspect of the act of producing the documents. Thus, the Fisher Court held that, when a subpoena seeks the business records of an individual or a sole proprietorship, the Court will not inquire into the contents of the records, but will instead inquire whether the act of production has testimonial, incriminatory aspects (425 U.S. at 410; see also United States v. Doe, 465 U.S. at 612-613). As the Court explained in Fisher, 425 U.S. at 410 (citation omitted): The act of producing evidence in response to a subpoena * * * has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. The Court's focus in Fisher on the incriminatory features of the act of production does not provide the slightest support for the proposition that the Court intended to alter the collective entity rule. /11/ Indeed, the Fisher Court explicitly reaffirmed the collective entity rule in light of the act-of-production theory (425 U.S. at 411-412; see also id. at 408, 413 & n.14). Moreover, contrary to petitioners' suggestion (Pet. Br. 12), the act-of-production doctrine was not invented by the Fisher Court. That doctrine actually predates Hale v. Henkel, supra. See J. Wigmore, Evidence Section 2264, at 3124 (1904). /12/ It was mentioned in passing in the Wilson case, 221 U.S. at 378, and it received explicit judicial acceptance in the 1920s. People v. Defore, 242 N.Y. 13, 27, 150 N.E. 585, 590 (1926) (Cardozo, J.); see also Haywood v. United States, 268 F. 795, 803 (7th Cir. 1920). The doctrine was recognized in an opinion of this Court in 1957, in a case in which the Court reaffirmed the collective entity rule. Curcio, 354 U.S. at 125 (recognizing testimonial character of act of production); see id. at 122-123 (reaffirming Wilson). Justice Marshall discussed the act-of-production theory in his dissenting opinion in Couch v. United States, 409 U.S. 322, 346-347 (1973), just one Term before writing the opinion of the Court in Bellis, which once again reaffirmed the collective entity rule. See generally Alito, supra page 15, 48 U. Pitt. L. Rev. at 119-120. Although petitioners assert (Pet. Br. 17-20) that the rationale supporting the collective entity rule has less force with respect to the incriminatory act of producing corporate records than it did before Fisher and Doe, they do not explain why that is so. /13/ Before Fisher, the privilege against disclosure of an individual's incriminating business records was much broader than afterwards; Fisher put an end to the argument that a claim of privilege could be tied to the contents of the records and left only the act of production as the basis for the privilege. Doe merely refined the ruling in Fisher that the act of production was the only basis on which an individual or sole proprietor could ground his Fifth Amendment claim. Neither case in any way expanded the act-of-production doctrine as a basis for asserting the privilege. That doctrine attained prominence after Fisher and Doe not because it was given more vitality, but because it was the only ground for resistance that was left. See generally Note, supra note 7, 54 Fordham L. Rev. at 946-949. The elimination of the principal ground on which corporate custodians for six decades had unsuccessfully sought to defeat subpoenas for corporate documents did not suddenly promote the subsidiary act-of-production doctrine into a convincing rebuttal to the collective entity rule. None of the policies underlying the collective entity rule was rendered less persuasive in the face of act-of-production claims than it had been before Fisher. To the extent that the collective entity rule is justified by an implied-waiver theory, a waiver of the more limited act-of-production privilege can surely be inferred at least as readily as a waiver of the broader protection once thought to exist. /14/ To the extent that the rule is justified by the undesirability of giving the corporation a de facto privilege, that de facto privilege remains equally undesirable no matter what form the individual's putative privilege takes. To the extent that law enforcement needs were previously thought to outweigh self-incrimination concerns, the balance must now be struck even more decidedly in favor of law enforcement interests. After Fisher and Doe, the Fifth Amendment interests are much less compelling, since it has now been recognized that there is no Fifth Amendment interest in shielding the contents of documents, but only a Fifth Amendment interest in preventing the much more limited disclosures inherent in the act of production. Finally, to the extent that the collective entity rule is justified by the fact that the witness is acting in a representative rather than an individual capacity, the act-of-production doctrine does not enhance his claim. If the individual producing corporate documents is not acting in his individual capacity, but only as an agent of the corporation, he cannot complain about being incriminated by the corporation's act of producing the documents any more than he can complain about being incriminated by the contents of the documents that the corporation discloses. /15/ c. The foregoing analysis suggests that there is no constitutional bar to compelling the corporation to incriminate an individual who holds its documents, and that the compelled production of corporate documents requires an act by the corporation through that individual rather than an act by that individual himself. We recognize, however, that it remains the individual who must physically produce the documents and that there are situations in which the fact that one particular individual rather than another physically produced the corporation's documents might tend to incriminate that individual. We submit that proper application of the theory underlying the collective entity rule will fully protect that individual against compelled self-incrimination, without allowing him to withhold the documents. Because the collective entity rule is based on the fact that the corporate custodian is acting throughout in his representative rather than his individual capacity, the government may not treat the custodian's conduct as his individual act for other purposes. Thus, because it is not the individual but the corporation that has turned over the documents, the government may not make evidentiary use of the fact that a particular individual within the corporation produced the documents. That is not to say that the individual producing the documents receives "constructive use immunity" for the act of production. Use immunity protects a person who has incriminated himself against evidentiary or derivative use of the immunized communication by which he did so. By contrast, the prohibition against the government's treating the corporation's act of production as the individual's act derives from the fact that the individual, as individual, has performed no such act. /16/ At the same time, the act of production by a corporate representative, if properly treated as the act of the corporation, may have testimonial value at a trial of the representative. It would authenticate the records and establish their existence and possession by the corporation -- evidence that could be used against the representative because it is the corporation's act and the unprivileged contents of the documents that incriminate him. The basis for the collective entity rule is not that the act of production is without testimonial value. In fact, the Fisher Court recognized the testimonial value of that act even while reaffirming the collective entity rule (425 U.S. at 411-412). The rule is instead based on the proposition that the testimony is the corporation's, not the representative's. Because the act of production is the corporation's, there is no reason it may not be used against the representative for whatever purpose the government chooses. The only thing the government may not do is to assert that the act of production was the personal testimonial act of the representative. /17/ In sum, the collective entity rule rests on a solid foundation, and we submit that the Court should reaffirm its holding that a corporate custodian is acting on behalf of the corporation, and not as an individual, uhen he produces corporate records. The individual's privilege against compelled self-incrimination is fully protected by forbidding the government to treat the act of production as something that it is not: an individual act. The individual's desire not to have the corporation incriminate him is not protected, because the Fifth Amendment provides no such protection. B. An Attorney May Not Refuse to Produce Corporate Documents on the Basis of a Client's Privilege Against Compulsory Self-incrimination Even if a corporate custodian could assert a Fifth Amendment privilege not to produce corporate records in certain circumstances, petitioners could not properly invoke the privilege in this case. /18/ Cunningham is asserting a privilege not to be compelled to incriminate himself by the act of producing the subpoenaed documents. But the subpoena does not compel Cunningham to perform that act. It is directed at See, the attorney, who has made no claim that she would incriminate herself by producing the documents. Accordingly, whether or not the collective entity rule is still valid, the act-of-production doctrine does not bar enforcement of the subpoena in this case. This Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of "physical or moral compulsion" exerted on the person asserting the privilege. Fisher v. United States, 425 U.S. at 397; Couch v. United States, 409 U.S. 322, 336 (1973); Perlman v. United States, 247 U.S. 7, 15 (1918); Johnson v. United States, 228 U.S. 457, 458 (1913). For example, in Fisher the taxpayers were under investigation for violating the federal income tax laws. After they obtained documents from their accountants relating to the preparation of their tax returns, the taxpayers transferred the documents to their attorneys, from whom the documents were subpoenaed by the IRS. In holding that the taxpayers' Fifth Amendment privilege was not violated by enforcing subpoenas to the attorneys, the Court explained (425 U.S. at 397) that "enforcement against a taxpayer's lawyer would not 'compel' the taxpayer to do anything -- and certainly would not compel him to be a 'witness' against himself." See also Couch v. United States, supra (Fifth Amendment rights of taxpayer not violated by enforcement of documentary subpoena directed to her accountant and requiring production of taxpayer's own records). Likewise here, production of the subpoenaed documents by See would not force Cunningham to do anything at all and thus would not implicate Cunningham's Fifth Amendment right not to be compelled to incriminate himself. We recognize that in Fisher the Court held that, when a person could incriminate himself by the act of producing his individuals records, a transfer of those records to his attorney in order to obtain legal assistance leaves the documents "unobtainable by summons directed to the attorney by reason of the attorney-client privilege" (425 U.S. at 405). Nothing in Fisher, however, suggests that the compelled production of corporate records given to an attorney would violate any privilege of the individual who transferred the corporate records to the attorney. Indeed, as we have noted, the Fisher Court expressly recognized the different standards that apply to the production of corporate records and the production of individual records (id. at 408, 411-412, 413 & n.14). The difference between individual records and corporate records for purposes of applying the attorney-client privilege analysis of Fisher is fundamental. The Fisher Court held that, in order to protect the attorney-client privilege, the Court would not require the production of individual records that had been transferred to the individual's attorney for the purpose of securing legal advice, if the materials would otherwise have been unavailable to the government. To permit the government to obtain documents from the attorney that could not be obtained from the client, the Court held, would discourage resort to attorneys for legal advice (425 U.S. at 404). Corporate records, however, stand on a different footing. Because there is no corporate privilege against compelled self-incrimination, the Fifth Amendment never prevents the government from obtaining corporate documents; the sole question is who may be compelled to produce them. A corporate officer in possession of subpoenaed documents is legally obligated to give them up to someone else to produce if any act-of-production privilege would protect the officer against being compelled to produce the documents himself. Cf. United States v. Kordel, 397 U.S. 1, 8 (1970) (corporation asked to answer interrogatories must select an agent to do so who will not invoke his Fifth Amendment privilege). /19/ The Second Circuit's decision in In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52 (1985), makes precisely this point. There, the government directed a subpoena for corporate records to the corporation's custodian of records, who attempted to quash the subpoena on the ground that the act of producing the documents would be self-incriminating. In response, the district court specifically excluded any grand jury target from having to produce the records and provided that the corporation itself could select an employee to produce them. The court of appeals held that those steps "remove(d) any danger that the custodian * * * (would) have to incriminate himself by an act of producing records" (769 F.2d at 57). The court went on to say (ibid.) that there is "simply no situation in which the fifth amendment would prevent a corporation from producing corporate records," because, lacking a Fifth Amendment privilege, the corporation has the obligation to appoint an agent who will produce the records on the corporation's behalf. See also United States v. Lang, 792 F.2d 1235, 1240-1241 (4th Cir. 1986), cert. denied, No. 86-420 (Dec. 1, 1986); In re Grand Jury Subpoenas Issued to Thirteen Corps., 775 F.2d 43, 47 (2d Cir. 1985). Accordingly, by seeking corporate records from an attorney in possession of them, the government does not seek to obtain material that would be unobtainable if it were in the hands of the client, as in Fisher; instead, it seeks material that the client would be legally required to give to some other representative of the corporation who would not incriminate himself by the act of producing it. If the attorney is such a person, there is no reason why the attorney should not be compelled to produce the records. /20/ Since the records are obtainable anyway, there is no valid reason that the client should hesitate to turn the records over to the attorney to obtain legal advice. Therefore, the purpose of the attorney-client privilege -- "to encourage clients to make full disclosure to their attorneys" (Fisher, 425 U.S. at 403) -- would not be frustrated by a rule requiring attorneys to produce corporate documents subpoenaed from them. /21/ Not even the Third Circuit's opinion in Brown would provide relief for petitioners in these circumstances. The court in Brown stated that "most business entities will have agents who can provide (authentication) testimony without self-incrimination," but it noted that "(t)he government did not in this case request the court to direct that the corporation appoint such an agent" (768 F.2d at 529 & n.4). To the contrary, in the Brown case the government had refused an offer from Brown to submit the records to the grand jury through his attorney, conceding that it wanted to use Brown's act of production in later proceedings (id. at 526, 529). The court's discussion suggests that, if the government had proposed the use of an agent to produce the subpoenaed records or had accepted production from Brown's attorney, the result in Brown would have been different. See also Rogers Transportation, Inc. v. Stern, 763 F.2d 165 (3d Cir. 1985) (en banc). In short, the subpoena in this case is directed only at corporate records of Westech Corp., an entity that has no privilege against compulsory self-incrimination. If Cunningham, a corporate custodian, has any privilege at all -- contrary to our argument in Section A above -- the privilege is Cunningham's only, and his claim of privilege can arise only from the testimonial nature of his act of producing the documents. Yet the subpoena in this case does not request that Cunningham produce the documents. Instead, it seeks the documents from an agent who has made no claim that she would incriminate herself by producing them. In these circumstances, there is no reason to uphold Cunningham's Fifth Amendment claim. Even if See would not be an appropriate substitute custodian under Fisher, that should not relieve petitioners of any obligation whatsoever under the subpoena. Rather, petitioners should still be required to appoint another person to comply with the subpoena, whether a former officer or employee of Westech or an outside agent. The possibility of appointing a substitute custodian was considered in the district court, and the record indicates that there are former employees of Westech who could perform that function (J.A. 61, 65). Because the appointment of a substitute custodian and the transfer of Westech's records from See to that substitute custodian for purposes of responding to the subpoena would not violate Cunningham's privilege against compulsory self-incrimination, that step should be ordered even if Fisher's analysis of the attorney-client privilege is applicable to the corporate documents at issue in this case. /22/ C. Petitioners Have Not Shown that See's Act of Producing the Records Could Constitute Testimonial Incrimination of Cunningham Thus far we have argued (1) that a custodian of corporate records cannot resist a subpoena for those records on Fifth Amendment grounds even if he would be personally incriminated by their production, and (2) that, in any event, the subpoena in this case was directed at See and therefore did not impose any compulsion on Cunningham, the only party who claims he would be incriminated by the act of production. Even if those arguments were incorrect, there would be yet another reason why petitioners' Fifth Amendment claim must fail: they have not shown how the production of the subpoenaed documents would constitute an incriminating testimonial act. Because we are assuming for purposes of this argument that the compelled production of corporate records given to an attorney would violate any privilege of the client who transferred the records to the attorney, the pertinent inquiry is whether Cunningham would have an act-of-production privilege if the subpoenaed records were in his hands. As we have noted, this Court has held that the act of production may be incriminating in any of three ways: by conceding "the existence of the papers demanded"; by conceding "their possession or control by the (subpoenaed individual)"; or by indicating the subpoenaed person's "belief that the papers are those described in the subpoena" (Fisher, 425 U.S. at 410). The question whether the act of production would be incriminating in a particular case depends on the "facts and circumstances" of that case (ibid.). In Doe, the Court accorded great deference to the explicit finding of the district court that the act of producing the documents at issue there would involve testimonial self-incrimination (465 U.S. at 613-614). Here, be contrast, the district court concluded that petitioners had failed to establish that "producing these records would incriminate Cunningham" (Pet. App. 18a). /23/ That finding is supported by the record. 1. It seems clear that admitting the existence and possession of standard corporate records rarely will amount to testimonial self-incrimination within the protection of the Fifth Amendment. In Fisher, after noting that the papers at issue were "the kind usually prepared by an accountant working on the tax returns of his client," the Court concluded (425 U.S. at 411 (quoting In re Harris, 221 U.S. 274, 279 (1911))): The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons "no constitutional rights are touched. The question is not of testimony but of surrender." Justice Marshall, concurring in the judgment, added that "(s)ince the existence of corporate records books is seldom in doubt, the verification of their existence, inherent in their production, may fairly be termed not testimonial at all" (425 U.S. at 432). The reasoning of Fisher applies equally to the documents sought by the subpoena in this case, which include standard labor records, financial statements, general ledgers, check registers, bank statements, contracts, and cost details for work performed. Such documents are kept by virtually every corporation. Conceding their existence and possession therefore "adds little or nothing to the sum total of the Government's information" (425 U.S. at 411). As the court of appeals stated in In re Grand Jury Proceedings United States (Martinez), 626 F.2d 1051, 1055 (1st Cir. 1980), the facts admitted by honoring such a subpoena "in most cases will be so trivial that the Constitution is not implicated." See also, e.g., Lang, 792 F.2d at 1241; United States v. Davis, 636 F.2d 1028, 1041 (5th Cir.), cert. denied, 454 U.S. 862 (1981); United States v. Praetorius, 622 F.2d 1054, 1063 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980); United States v. Authement, 607 F.2d 1129, 1132 (5th Cir. 1979); United States v. Osburn, 561 F.2d 1334, 1339 (9th Cir. 1977). Beyond that, petitioners have never disputed the existence of the subpoenaed documents or their possession by See as counsel for Cunningham (see Lang, 792 F.2d at 1241); to the contrary, they repeatedly have admitted those facts. For example, in her motion to quash, See stated expressly that "Karen See, as an attorney, has been entrusted with (the subpoenaed documents) by Alan Cunningham" and that "Karen See is in fact holding these documents" (J.A. 6). Similarly, in his application to intervene, Cunningham stated that the "subpoena calls for documents which have been given to Karen See in the course of her representation of Mr. Cunningham" (J.A. 24; see also J.A. 73-75). And again, in their brief in the court of appeals (at 1), petitioners stated that "See had been entrusted with the requested documents by Alan Cunningham, a former officer of Westech Corporation, Paragon Corporation and other entities whose records were mentioned in the subpoena." Those admissions, without more, make it a "foregone conclusion" that the subpoenaed documents exist and that they are in See's possession. That conclusion is entirely consistent with Doe, in which the Court declined to overturn the district court's finding that Doe's act of production would tacitly admit the subpoenaed documents' existence and Doe's possession of them (465 U.S. at 614 n.13). In so doing the Court noted (ibid.) that "(r)espondent did not concede in the District Court that the records listed in the subpoena actually existed or were in his possession." As we have shown, petitioners have made precisely that concession in this case. Moreover, in Doe the Court cited the inference by the court of appeals, based on the government's ignorance of whether Doe was even connected to the business entities under investigation, that the government was using the subpoenas to "'compensate for its lack of knowledge by requiring (Doe) to become, in effect, the primary informant against himself'" (465 U.S. at 613-614 n.12 (quoting In re Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 335 (3d Cir. 1982))). Here, by contrast, the government already knows and readily can prove that Cunningham was an officer of Westech; that Westech was the prime contractor in the White Sands construction project; that the government paid the contract price on Westech's certification that all subcontractors and vendors had been paid; that numerous subcontractors subsequently filed claims based on nonpayment; and that an audit by the government turned up major discrepancies between Westech's general ledger and its financial statements. In light of what the government already knows, it cannot be argued that the mere act of producing the subpoenaed documents would supply the government with any "missing link" in its evidentiary chain, as was the case in Doe (see 680 F.2d at 335 n.12). An individual claiming the Fifth Amendment privilege must be "confronted by substantial and 'real,' and not merely trifling or imaginary, hazards or incrimination." Marchetti v. United States, 390 U.S. 39, 53 (1968); see also, e.g., Hoffman v. United States, 341 U.S. 479, 486 (1951) (Fifth Amendment "protection must be confined to instances where the witness has reasonable cause to apprehend danger"); Rogers v. United States, 340 U.S. 367, 373 (1951) ("real danger of legal detriment"); Mason v. United States, 244 U.S. 362, 365 (1917) ("real danger" must be shown, not just "remote possibilities out of the ordinary course of law"). Although the unprotected contents of the subpoenaed documents may be inculpatory, the admission of possession and control implicit in the act of producing them does not in this case pose any such substantial, realistic threat. 2. Nor would the act of production in this case be incriminating by providing a means of authenticating the subpoenaed documents. Authentication is a narrow and technical requirement for the admissibility of evidence at trial. See E. Cleary, McCormick on Evidence Section 218, at 686-687 (3d ed. 1984). Under the Federal Rules of Evidence, authentication is a "condition precedent to admissibility" at trial that must be "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). While testimony that a custodian of corporate records produced certain documents in response to a subpoena for the records of the corporation would ordinarily suffice for authentication, in the vast majority of cases such records can also be authenticated in other ways. /24/ The difficulty of authenticating standard business records at trial is not great and seldom proves to be an obstacle to admission of the records. See 5 D. Louisell & C. Mueller, Federal Evidence Section 505, at 12 (1981). Indeed, at a trial of Cunningham the government would in all likelihood be required to provide authentication evidence apart from the act of production in order to introduce the subpoenaed documents into evidence. Since documents are hearsay when offered to prove the truth of their contents, they are admissible only if they fall within an exception to the hearsay rule (Fed. R. Evid. 801, 803). The basis on which such records are usually admitted is the hearsay exception for regularly kept records. Rule 803(6) of the Federal Rules of Evidence, which codifies this exception, requires testimony that the records were made at or near the time of the events recorded, that they were made "by, or from information transmitted by, a person with knowledge," and that "it was the regular practice of that business * * * to make (such) record(s)." Although evidence that a custodian of corporate records produced them in response to a subpoena would not be enough to satisfy the requirements of Rule 803(6), the same testimony that would satisfy the Rule would also authenticate the documents; authentication is implicit in admissibility under the Rule. Accordingly, it is difficult to see how any authentication inherent in the act of production would be incriminating in most cases; in order to have the documents admitted, the government would be required to authenticate them by other means. In short, the possibility of incrimination by tacit authentication is not a real risk about which petitioners and other similarly situated witnesses are truly concerned; instead, it is a surrogate for petitioners' real concern -- to shield the contents of the records from the grand jury's scrutiny. And while the contents of the documents -- unlike the theoretical risk of authentication -- may be highly incriminating, those contents are not shielded by the Fifth Amendment. It is true that the Doe Court, in declining to overturn the district court's finding that the act of production would be incriminating, stated (465 U.S. at 614 n.13) that, "(b)y producing the documents, (Doe) would relieve the Government of the need for authentication." But in Doe, as the court of appeals there noted (680 F.2d at 335 (footnote omitted)), "(t)he record contain(ed) no explanation by the United States as to how documents of this sort could be authenticated without (Doe's) explicit or implicit participation." Here, by contrast, the government explicitly represented in the district court that it would not need to rely on the act of production to authenticate the documents because "numerous other corporate employees and officers of * * * Westech * * * would be able to authenticate (them)" (J.A. 61). Petitioners did not dispute that representation. Hence, the government here did precisely what this Court found it had failed to do in Doe: It showed -- to as great an extent as it will ever be possible to do before seeing the documents -- that "authentication (was) a 'foregone conclusion'" (465 U.S. at 614 n.13; see Lang, 792 F.2d at 1241 (holding tacit authentication not incriminating because "the Government need not rely on Lang's act to verify that the documents are in fact what they purport to be"); Brown, 768 F.2d at 529 (noting that the government had "never explored alternate means of * * * authentication of the documents")). Accordingly, this case is governed not by Doe, but by Fisher, where the Court found the risk of incrimination by authentication to be too insubstantial to support the witness's Fifth Amendment claim. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted, CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ROY T. ENGLERT, JR. Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney DECEMBER 1986 /1/ The subpoena sought eight categories of corporate records: correspondence, memoranda, and interoffice notes to and from subcontractors and vendors about the White Sands construction project; labor records, including canceled payroll checks and payment vouchers, for the project; cost details for any costs charged directly or indirectly to the project; financial statements and adjusting entries and workpapers in support of the certified financial statements for Westech Corp. for the period December 1, 1981 to February 1, 1984; the corporation's general ledger and associated books of account for that period; its check registers for that period; its bank statements for that period; and contract documents, labor records, and cost information for four specified Westech Corp. projects. J.A. 5. /2/ It is the "character of the books and papers as corporate records and documents which justifie(s) the court in ordering their production," and "the character of the books (is) not changed for this purpose, because the corporation ha(s) gone out of existence" (Wheeler, 226 U.S. at 490). Petitioners nonetheless argue in passing that a recent decision of the Second Circuit has revived the distinction between ongoing and defunct concerns. Pet. Br. 24 n.8 (citing In re Grand Jury Subpoenas Duces Tecum (Saxon Industries), 722 F.2d 981 (1983)). Although we think that Saxon Industries was wrongly decided, it can in any event be distinguished. The Second Circuit did not hold, as petitioners suggest (Pet. Br. 28), that as a general matter former corporate officers may invoke a privilege even though current corporate officers may not. Rather, it held that, when a former officer's possession of records "would tend to corroborate evidence that he misappropriated this evidence" and could be used as evidence that he "absconded with them because they were 'smoking gun' evidence of his guilt," the former officer has a privilege against tacitly admitting the incriminating fact of his possession of the documents (722 F.2d at 987). Cunningham's possession of the records at issue in this case could give rise to no such inferences. /3/ The Court has also held that the Fifth Amendment privilege may not be asserted when the records of other artificial entities are involved, such as those of labor unions, United States v. White, 322 U.S. 694, 700 (1944), political parties, Rogers v. United States, 340 U.S. 367, 371-372 (1951), or business partnerships, Bellis v. United States, supra. /4/ See Wheeler, 226 U.S. at 489-490; Grant, 227 U.S. at 79-80; Essgee Co. v. United States, 262 U.S. 151, 155-158 (1923); United States v. White, 322 U.S. 694 (1944); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 205-206, 208, 210 (1946); Rogers v. United States, 340 U.S. 367, 371-372 (1951); Curcio v. United States, 354 U.S. 118, 122-125, 128 (1957); McPhaul v. United States, 364 U.S. 372, 380 (1960); George Campbell, 392 U.S. at 288-289; Bellis, 417 U.S. at 89-92; Fisher, 425 U.S. at 408, 411-412, 413 & n.14. Not all of those decisions were unanimous, but in each case the dissent either specifically endorsed the collective entity rule (see, e.g., McPhaul, 364 U.S. at 387; George Campbell, 392 U.S. at 290) or took issue with the majority on other grounds without discussing the validity of the collective entity rule. Justice McKenna dissented alone in the Wilson case, but he subsequently joined the Court's opinions in Wheeler, Grant, and Essgee, all of which reaffirmed the holding of Wilson. /5/ Justice Brennan and Justice Marshall, in separate opinions, took issue with the majority opinion in Fisher in several respects, but they explicitly agreed with the Court that a custodian of the records of a collective entity may not claim his privilege as a ground for refusing to produce the entity's records. 425 U.S. at 426 (Brennan, J., concurring in the judgment); id. at 432 (Marshall, J., concurring in the judgment). /6/ Conyers, Corporate and White-Collar Crime: A View by the Chairman of the House Subcommittee on Crime, 17 Am. Crim. L. Rev. 287, 288 (1980). The annual cost of white-collar crime is estimated to be between $40 billion and $200 billion, in contrast to the annual cost of $4 billion attributable to crimes against property (id. at 288, 297). /7/ Accord 8 J. Wigmore, Evidence Section 2259b, at 360-361 (J. McNaughton rev. ed. 1961) ("Groups frequently are powerful and their illegal doings frequently are provable only by their records; and, since economic crimes (as contrasted with common law crimes) are usually not even discoverable without access to business records, a rule which privileged the production of such records whenever they incriminated the custodian would result in many (rather than few) of the violators going free."). See generally Note, Fifth Amendment Privilege and Compelled Production of Corporate Papers After Fisher and Doe, 54 Fordham L. Rev. 935, 935-936 (1968). /8/ See Applegate, The Business Papers Rule: Personal Privacy and White Collar Crime, 16 Akron L. Rev. 189, 195-198 (1982); Vaira, Use of the Grand Jury to Obtain Business Records, 59 Chi. B. Rec. 32 (1977). /9/ Applegate, supra note 8, 16 Akron L. Rev. at 198; Heidt, The Fifth Amendment Privilege and Documents -- Cutting Fisher's Tangled Line, 49 Mo. L. Rev. 439, 488 (1984). /10/ It is no answer to say that the government should subpoena corporate records from a custodian who is not subject to potential incrimination. It is often the case that only the subjects of an investigation know the location of the corporate records most pertinent to the criminal investigation. In the case of small corporations, every qualified custodian may be subject to potential criminal liability. Petitioners argue that a corporate employee asserting his Fifth Amendment privilege should have no duty to assist an appointed corporate custodian in locating the corporate records that are the subject of the subpoena (Pet. Br. 43-44). If that rule is adopted, the threat of a contempt sanction against corporate employees for failing to comply with the subpoenas to the corporation will be meaningless. In that setting, it is not difficult to imagine how often incriminating documents will lose their way between the corporation's files and the grand jury room. /11/ In In re Grand Jury Matter (Brown), 768 F.2d 525 (3d Cir. 1985) (en banc), the court of appeals reached a contrary conclusion by reasoning that Fisher and Doe created new Fifth Amendment doctrine by "mak(ing) the significant factor, for the privilege against self-incrimination, * * * the communicative or noncommunicative nature of the arguably incriminating disclosures sought to be compelled" (768 F.2d at 528). But it has always been necessary, in order to invoke the Fifth Amendment, to show that the arguably incriminating disclosure sought to be compelled is communicative. It was fully recognized at the time of Wilson that the Fifth Amendment privilege applies only to testimonial communications (see, e.g., Holt v. United States, 218 U.S. 245 (1910)), and the contents of documents were at that time regarded as testimonial communications. The Court nonetheless saw fit to make an exception to the privilege for the contents of corporate documents, even when production would incriminate the subpoenaed corporate representative himself. The communicative nature of the act of production, as recognized in Fisher and Doe, affords a corporate representative no more of a privilege to refuse to produce subpoenaed corporate records today than the communicative nature of the records themselves afforded him such a privilege at the time of Wilson. /12/ In light of petitioners' claim that the Court's focus on the act of production in deciding document subpoena cases somehow undercuts the collective entity rule (Pet. Br. 20), it is particularly noteworthy that the Wigmore treatise, which gave birth to the act-of-production theory in 1904, also supports the collective entity rule. See 8 J. Wigmore, Evidence Section 2259b (J. McNaughton rev. ed. 1961). /13/ Petitioners note (Pet. Br. 15-16) that on one occasion this Court "attempted to recast" the collective entity rule as one based on a rationale that corporate papers lack protection because they are not private. See Bellis, 417 U.S. at 91-92. Fisher, however, undermined the "privacy" rationale for the collective entity rule by holding that privacy concerns do not protect the contents of individual or corporate records. In order to prevail, petitioners therefore must rebut the traditional justifications for the collective entity rule, not just the "privacy" explanation suggested in Bellis. They have not done so. /14/ In attacking the "implied waiver" rationale, petitioners cite cases in which this Court has held that the government may not condition public employment on the waiver of Fifth Amendment rights or deem participation in an illegal activity to imply a waiver of Fifth Amendment rights (Pet. Br. 18-20 & n.5). Nothing in those cases, however, suggests that the government may not condition access to documents on the waiver of any right to interpose a self-incrimination bar to production of those documents, as it does when it deems acceptance of a corporate office to be a waiver of the right to withhold from production the documents that are obtained only through that corporate office. To the contrary, the cases that petitioners cite have for years coexisted with the cases in which the collective entity rule has been stated and reaffirmed. /15/ Reliance on the act-of-production doctrine as a basis for overturning the collective entity rule would be particularly curious, because the reason a corporate custodian resists a subpoena for corporate documents seldom has much to do with the incriminating aspect of the act of production. Instead, it is safe to say that the vast majority of all disputes in which the act-of-production privilege is invoked are really attempts to avoid having to produce documents because of their incriminatory content (see Couch v. United States, 409 U.S. 322, 348 (1973) (Marshall, J., dissenting); Alito, supra page 15, 48 U. Pitt. L. Rev. at 120, 122). To overturn the collective entity rule through the device of the act-of-production doctrine would thus in effect revitalize the incriminating nature of the contents of documents as a basis for resisting subpoenas -- an odd result to be attributed to a case that purported to reject that ground for resisting subpoenas once and for all. /16/ We take the approach adopted by the Sixth Circuit and the court below (Pet. App. 12a) to be equivalent to the analysis that we suggest. The Sixth Circuit based its ruling on the fact that "(t)he custodian of corporate or partnership records acts only in a representative capacity, not as an individual, and production of the records is not a testimonial act of the custodian (but) * * * communicates nothing more than the fact that the one producing them is a representative of the corporation or partnership." In re Grand Jury Proceedings (Morganstern), 771 F.2d 143, 148 (1985), cert. denied, No. 85-658 (Dec. 16, 1985); see also In re Grand Jury Empanelled March 8, 1983, 722 F.2d 294, 297 (6th Cir. 1983), cert. dismissed, 465 U.S. 1085 (1984). /17/ Accordingly, although the Third Circuit reached the incorrect result in In re Grand Jury Matter (Brown), 768 F.2d 525 (1985) (en banc), the court was rightly disturbed by the government's suggestion that it could compel the witness in that case personally to produce the documents and then use his personal act of production against him, and by the government's refusal to accept delivery of the documents by someone other than the witness (768 F.2d at 526, 529 n.4). The proper result in Brown would have been for the court to compel production of the documents by Brown as the agent of the corporation, but to bar the government from making evidentiary use of the fact that it was 0rown who turned over the documents. Likewise, in In re Grand Jury Subpoenas Duces Tecum (Saxon Industries), 722 F.2d 981 (2d Cir. 1983), the court should not have remanded for the district court to decide whether to quash the subpoena on the ground that the former corporate officer's possession of the records could be used as evidence that he absconded with them. Rather, the court should have refused to quash the subpoena but, if the issue subsequently arose, the court should have prevented the government from making use of the fact that it was the former president, rather than someone else associated with the corporation, who produced the documents. /18/ On this issue, we disagree with the court of appeals, which held that, if a corporate custodian could have a valid act-of-production privilege, the claim of privilege would have been available in this case (see Pet. App. 9a, 20a). /19/ The district court in this case implicitly recognized that point when it suggested at the hearing on the motion to quash (J.A. 65) that the government subpoena another officer of Westech and order him to produce the records. The Court explained (ibid.) that because the records are the corporation's and not Cunningham's "(a)ll (the substitute custodian would) have to do is go down and say, See, you give us these records. She couldn't keep from them those records." /20/ In fact, possession of the records by the individual's attorney actually provides the greatest protection to the individual. The documents must be obtainable from some individual in order to fulfill the corporation's obligation to produce documents. If the documents are obtained from anyone other than the individual's attorney, the person producing the documents may be questioned about how he received the documents, since there is no privilege not to be incriminated by someone else. If the attorney is the person who produces the documents, however, the attorney-client privilege may provide some protection against questioning the attorney about the manner in which the attorney received the documents. /21/ The only advantage to the client from having the materials in his possession rather than having them in the possession of his attorney is an illegitimate one: that the client could flout the subpoena by failing to comply with his legal duty to provide the materials to another agent of the corporation to be turned over in response to the subpoena. But the attorney-client privilege, like other evidentiary rules, cannot be invoked when it would serve only to protect the corrupt destruction or withholding of evidence. See Craig v. A.H. Robins Co., 790 F.2d 1 (1st Cir. 1986); In re Sealed Case, 754 F.2d 395 (D.C. Cir. 1985); United States v. Sutton, 732 F.2d 1483 (10th Cir. 1984), cert. denied, 469 U.S. 1157 (1985); see also Clark v. United States, 289 U.S. 1, 15 (1932); Segura v. United States, 468 U.S. 796, 815-816 (1984). /22/ Petitioners object (Pet. Br. 45) that the appointment of a substitute custodian is not a viable alternative because, "due to the scope of the subpoena, Cunningham would have to assist his substitute to determine which records were requested by the subpoena." However, petitioners do not explain in what way the "scope" of the subpoena -- which is confined for the most part to standard corporate documents relating to the White Sands project -- would prevent a former employee of the corporation or an expert outside agent, such as an experienced corporate bookkeeper, from identifying the subpoenaed records. At minimum, a substitute custodian should be allowed to attempt to identify the relevant records. If the substitute custodian determines that Cunningham's assistance is necessary, it will be time then to decide whether and how the Fifth Amendment bears on Cunningham's duty to assist the substitute custodian. Cunningham certainly should not be allowed to block the appointment of a substitute custodian altogether on the ground that some of the custodian's functions might require Cunningham's assistance. /23/ It is up to the individual claiming the Fifth Amendment privilege to "show a realistic possibility that his answer will be used against him." Pillsbury Co. v. Conboy, 459 U.S. 248, 266n.1 (1983) (Marshall, J., concurring). /24/ Many business documents maintained by a corporation are written by persons other than the custodian of the documents and can therefore be authenticated by the author's testimony. 5 D. Louisell & C. Mueller, Federal Evidence Section 507, at 27 (1981). If the author cannot or will not testify, authentication may be provided through the testimony of another person who witnessed the document being written or who received, typed, delivered, mailed, filed, read, or otherwise acquired familiarilty with it. Ibid. A corporation's business ledgers and journals can be authenticated by any employee, former employee, or other individual who made entries or saw them being made. E. Cleary, supra, Section 219, at 688. Such documents may also be authenticated by a person who merely had supervisory authority over or is familiar with the company's recordkeeping procedures. 4 D. Louisell & C. Mueller, supra, Section 466, at 662-667 (1980); E. Cleary, supra, Section 219, at 688. Even documents prepared exclusively by the custodian and never seen by any other person may be authenticated by testimony identifying the custodian's handwriting (Fed. R. Evid. 901(b)(3)); indeed, the trier of fact may draw its own conclusion about authenticity after comparing the documents with a specimen of the custodian's handwriting (ibid.). Documents may be authenticated even on the basis of their "appearance, contents, substance, internal pattern, or other distinctive characteristics, taken in conjunction with circumstances" (Fed. R. Evid. 901(b)(4)). Authentication may also be based on distinctive language patterns evident in a document (see Fed. R. Evid. 901(b) advisory committee note), and "a coincidence or 'match' between content and a course of events or behavior, as established by other evidence, sometimes serves as circumstantial evidence of authentication." See 5 D. Louisell & C. Mueller, supra, Section 515, at 78.