Macon-Bibb County Hospital Authority v. Continental Insurance

673 F. Supp. 1580, 1987 U.S. Dist. LEXIS 11029, 1987 WL 4425
CourtDistrict Court, M.D. Georgia
DecidedNovember 23, 1987
DocketCiv. A. No. 87-6-3-MAC (WDO)
StatusPublished

This text of 673 F. Supp. 1580 (Macon-Bibb County Hospital Authority v. Continental Insurance) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Macon-Bibb County Hospital Authority v. Continental Insurance, 673 F. Supp. 1580, 1987 U.S. Dist. LEXIS 11029, 1987 WL 4425 (M.D. Ga. 1987).

Opinion

ORDER

OWENS, Chief Judge.

The matter before this court in the above-styled civil action concerns the propriety of a non-defendant individual’s assertion, in his individual capacity, of the Fifth Amendment guarantee against compelled self-incrimination where that individual is producing corporate documents as corporate representative and where that individual is one of three principals in the corporation. Mack Langston, the individual asserting the privilege, contends that a representative of a corporation who is fearful of self-incrimination in his individual capacity may properly refuse to answer questions going to the identity and authenticity of the corporate documents. Plaintiffs contend that Silver Systems, Inc.1 has both an obligation and a duty, pursuant to the deposition subpoena, to designate a representative on behalf of the corporation who can both produce the requested records and answer questions concerning them. The subpoena in question did not designate any particular individual of Silver Systems as the corporate representative. Plaintiffs contend, therefore, that Silver Systems should be required to designate a representative who can supply information without the interference of the Fifth Amendment privilege.

Mack Langston is one of three principals in Silver Systems, Inc., a corporation that allegedly has paid kickbacks to an employee of the Medical Center of Central Georgia, plaintiff in the above-styled action, in exchange for receiving the hospi[1582]*1582tal’s business. The scheme as alleged involves the submission of inflated bills to the hospital for goods or services furnished by Silver Systems and the subsequent remission of the excess payments to one of the hospital’s employees. The hospital has brought an action against its fidelity insurers to recover the excess payments made to Silver Systems and other companies who were victims of or participants in the hospital employee’s criminal venture. In connection with the civil action, the hospital has subpoenaed Silver Systems’ corporate records pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Also in accordance with that Rule, Silver Systems designated Mack Langston to produce the records. Mr. Langston produced certain documents,2 but he has refused to answer questions regarding either the identity or authenticity of the records. Further, Mr. Langston asserted the Fifth Amendment in response to questions concerning the location of certain records, the identity of either the custodian of the records or the bookkeeper of the corporation, the particulars of Silver Systems’ corporate bank accounts, and the nature and extent of Silver Systems’ relationship with both the Medical Center of Georgia and its now deceased employee, Mr. William J. Brown.

The Fifth Amendment privilege against compulsory self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory....” Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). The privilege “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Id. 406 U.S. at 445, 92 S.Ct. at 1656. “The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution....” Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975); see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). In light of evidence provided by Mr. Langston and his attorney, this court finds that Mr. Lang-ston has sufficient grounds for invoking the Fifth Amendment privilege.

Despite the importance and pervasiveness of the Fifth Amendment privilege, the assertion of that privilege by Mack Langston in the matter before this court is complicated by Langston’s position as custodian of the corporate records of Silver Systems, Inc. Clearly, neither a corporation nor its human representative can assert a Fifth Amendment privilege as to the contents of corporate records. Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). Corporate records held in a representational capacity are not privileged “regardless of how small the corporation may be.” Id. 417 U.S. at 100, 94 S.Ct. at 2189.

However, the Supreme Court has made just as clear that a custodian of corporate records does not waive the personal privilege by accepting the position. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).

A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State’s visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.

Id. 354 U.S. at 123-24, 77 S.Ct. at 1149.

As required by Beilis, Silver Systems, Inc., has produced its corporate records.3 [1583]*1583As permitted by Curcio, Mack Langston has asserted his Fifth Amendment privilege against compelled self-incrimination. The question thus becomes what is the extent of the privilege. In Curcio, the Supreme Court stated the following:

The custodian’s act of producing books or records in response to a subpoena duces tecem is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination.

Curcio, 354 U.S. at 125, 77 S.Ct. at 1150. This language intimates that a corporate representative must identify or authenticate, in his representative capacity, the records or documents produced. The Court refused, however, to require the representative “to disclose, by his oral testimony, the whereabouts of books and records which he has failed to produce.” Id. Nor did the Court require the custodian to “name the persons in whose possession the missing books may be found. Answers to such questions are more than ‘auxiliary to the production’ of unprivileged corporate or association records.” Id.

The court takes note of three recent cases that have examined situations similar to the one presented before this court. In Re Grand Jury 83-8 (MIA) Subpoena Duces Tecem (Martin and Hernandez), 611 F.Supp. 16 (S.D.Fla.1985); In Re Grand Jury Subpoena (Shuler), 635 F.Supp. 569 (N.D.Ga.1986); United States v. McDonald, 653 F.Supp. 793 (N.D.Ga.1987). In Martin and Hernandez,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hoffman v. United States
341 U.S. 479 (Supreme Court, 1951)
Curcio v. United States
354 U.S. 118 (Supreme Court, 1957)
Kastigar v. United States
406 U.S. 441 (Supreme Court, 1972)
Bellis v. United States
417 U.S. 85 (Supreme Court, 1974)
Maness v. Meyers
419 U.S. 449 (Supreme Court, 1975)
Fisher v. United States
425 U.S. 391 (Supreme Court, 1976)
United States v. Doe
465 U.S. 605 (Supreme Court, 1984)
In Re Grand Jury No. 86-3 (Will Roberts Corporation)
816 F.2d 569 (Eleventh Circuit, 1987)
In Re Grand Jury Subpoena
635 F. Supp. 569 (N.D. Georgia, 1986)
In Re Grand Jury 83-8 (MIA) Subpoena Duces Tecum
611 F. Supp. 16 (S.D. Florida, 1985)
United States v. McDonald
653 F. Supp. 793 (N.D. Georgia, 1987)
In re Corrugated Container Anti-Trust Litigation
620 F.2d 1086 (Fifth Circuit, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
673 F. Supp. 1580, 1987 U.S. Dist. LEXIS 11029, 1987 WL 4425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macon-bibb-county-hospital-authority-v-continental-insurance-gamd-1987.