Walk the Line

There is a thin line when attempting to distinguish between personal records and corporate records. Some would argue that there is no line at all because it is very difficult to sustain a claim that documents prepared in connection with employment are "personal."  The distinction between personal records and corporate records is legally significant because the Fifth Amendment's privilege against self-incrimination can be used to protect personal records.  Because the Fifth Amendment can only be asserted by individuals, corporate records are typically compelled to be produced in response to a subpoena.

The risk to corporate clients is significant when employees maintain records outside of normal record keeping procedures. This issue often arises when employees improperly assume that a record is "personal" because it contains some personal content. Common examples include employee calendars or address books that contain personal information. 

One of the leading cases in this area, In re Grand Jury Proceedings, 349 F. Supp. 417 (N.D. Ohio 1972), established that a desk calendar maintained by executives and/or secretaries is a "corporate document." In that case, a doctor maintained a date book containing both business and personal data. The court held that the calendar could be compelled to be produced because no collective entity, such as a corporation, labor union or partnership, can resist a subpoena for its business records on Fifth Amendment grounds. The court reasoned that the information contained in the requested documents was relevant, stressing that the privilege does not protect any privacy interest in the contents of business records.

Therefore, corporate attorneys should remember that if any element of a document pertains to the business, the whole document may have to be produced in court if it is called for by subpoena. As such, it is best to encourage employees to plan as if all records will be considered as corporate records that are not entitled to the Fifth Amendment protection against self-incrimination.  Employees must understand that all records maintained by that employee can be considered corporate documents, even if personal information is also included in those "corporate" documents, and therefore, those records must be maintained uniformly in compliance with the company's record retention policy.