Constitution and the laws of New Jersey. The trial court,
relying on United States v. Doe, 465 U.S. 605 (1984),
denied the motion. The court further noted its
reluctance to find that the New Jersey privilege against
self-incrimination was broader than the Fifth Amend-
ment. The Appellate Division reversed. The Supreme
Court granted certification. The Court reversed the
Appellate Division’s decision and elected to follow the
United States Supreme Court’s decision in United States
v. Doe, supra.
Under Doe, the Guarino Court noted, “it is clear that
the contents of the business records, whether from a
corporation, a partnership, or a sole proprietorship, are
no longer privileged under the Fifth Amendment.” As in
Doe, Guarino did not contend that the requested records
were prepared involuntarily, or that the subpoena would
force him to affirm the truth of their contents. Moreover,
Guarino was accorded use immunity for the act of
producing the documents. Therefore, the order
compelling the production of the documents did not run
afoul of the Fifth Amendment.
The Guarino Court then turned to the issue whether,
under New Jersey law, the privilege against self-
incrimination extends to the non-required business
records of a sole proprietor. Because New Jersey’s
common law privilege against self-incrimination protects
an individual’s right “to a private enclave where he may
lead a private life,” the Court was required to decide
whether the documents sought by the government fell
within the “sphere of personal privacy” protected under
New Jersey law. To accomplish that task, the Court
reasoned that it must look to the contents of the
documents. In examining the nature of the documents
the Court departed from the teachings of Doe, supra,
which did not recognize a fundamental privacy principle
as a component of the Fifth Amendment privilege against
self-incrimination. Because, however, the subpoenaed
documents were business records, the Court in Guarino
reasoned that they fell outside “that special zone of
privacy” protected by the New Jersey privilege against
self-incrimination.” The Court found that the business
records of a corporation, partnership or sole
proprietorship are not an extension of the more intimate
aspects of one’s life.
A corporation may not invoke the privilege against
self-incrimination, nor may a custodian of corporate
records rely on his or her personal privilege to refuse to
produce the corporation’s records. The principle that a
corporation may not invoke the privilege was reaffirmed
by the Appellate Division in Verneiro v. Beverly Hills, Ltd,
Inc., 316 N.J. Super. 121 (App. Div. 1998), which held
also that a custodian of corporate records may not rely on
his or her personal privilege against self-incrimination as
a basis for refusing to produce corporate records. Thus
the Consumer Fraud Act, N.J.S.A. 56:8-1 to 20, which
confers immunity only on those entitled by law to assert
the privilege, did not confer immunity on the defendant
corporation which was compelled to produce its
documents.- Act of Producing Records
Hubbell v. United States, 530 U.S. 27, 120 S.Ct.
2037, 147 L.Ed.2d 24 (2000), involved a second
prosecution of Webster Hubbell by the Independent
Counsel (IC) to investigate possible violations of federal
law relating to the Whitewater Development Corpora-
tion. As part of Hubbell’s plea bargain disposing of
charges related to Hubbell’s law firm billing practices,
Hubbell agreed to provide information related to the
Whitewater investigation. Attempting to determine if
Hubbell had violated his promise, the IC served him with
a subpoena calling for the production of 11 broad
categories of documents. Hubbell invoked his privilege
against self-incrimination, refusing to state whether he
possessed documents responsive to the subpoena.
Hubbell was granted immunity to the extent allowed by
law. He then produced 13,120 pages of documents and
responded to a series of questions from the prosecutors
that established that those were all of the documents in
his custody or control that were responsive to the
subpoena.The contents of those documents led to this second
prosecution for various tax-related crimes. The District
Court dismissed the indictment, however, because all of
the IC’s evidence derived from the testimonial aspects of
Hubbell’s immunized act of producing those
documents. The IC admitted that he was not
investigating tax-related issues when he issued the
subpoena, which the District Court characterized as “the
quintessential fishing expedition.” Id., quoting United
States v. Hubbell, 11 F.Supp.2d 25, 37 (D.D.C. 1998).The Court of Appeals vacated the district court
judgment and remanded the matter to allow the IC to
demonstrate a prior awareness on the part of the
government that the documents existed and were in
Hubbell’s possession, instead of the government having
learned the information from Hubbell’s compelled
production. United States v. Hubbell, 167 F.3d 552, 581
(D.C. Cir. 1999). The IC acknowledged that he could
not make the showing, and entered into a plea agreement