Can an individual who acts as an agent of a corporate defendant assert a privilege against self-incrimination when asked to produce documents in a personal injury action?

Insofar as the individual applicants are required to produce documents in the present action as agents of a corporate defendant, no Fifth Amendment issue is raised. Individuals who act as custodians of corporate records may not assert a privilege against self-incrimination with respect to that: Braswell v. United States, 487 U.S. 99 at 109 (1988). The documents are possessed by the individual in his representative capacity, and it is in that capacity that he or she must produce them.

Because such individuals are not viewed as having produced incriminating documents in their individual capacities, evidence concerning the act of production is inadmissible against the individual at a criminal trial: United States v. Dean, 989 F.2d 1205 at 1207 (D.C. Cir. 1993).

The custodian of corporate records may be compelled to testify against the corporation in the United States regarding his or her production of those records for the purpose of authenticating them: Curcio v. United States, 354 U.S. 118 at 125 (1957). However, it appears that the obligation to testify against a corporation to authenticate its documents does not extend any further than that. The corporate officer does not "waive his constitutional privilege as to oral testimony by assuming the duties of his office": Curcio, supra, at p. 124. In the United States, a corporate representative who is also a personal defendant could not be compelled to undergo an examination for discovery except with respect to this limited question of the production and authentication of corporate records.