Paramount Pictures Corp. v. Miskinis

344 N.W.2d 788, 418 Mich. 708, 1984 Mich. LEXIS 1045

• Court: Michigan Supreme Court
• Decided: March 19, 1984
• Docket: 67943, (Calendar No. 4)
• Status: Published

Opinions

Boyle, J.

The issue raised by this appeal is whether Joseph Miskinis, Jr., as custodian of corporate and partnership books and records, can withhold production of those documents in a civil action on the ground that there is a possibility that the documents will be personally incriminating to him, thus raising the privilege against self-incrimination protected by the Michigan and United States Constitutions, Const 1963, art 1, § 17 and US Const, Am V.

I. Facts

Plaintiffs-appellees are foreign corporations which have been or are engaged in the business of licensing theater owners and operators to exhibit motion picture films distributed by them. Defendants-appellants owned and operated two motion picture theaters in Detroit and Royal Oak, one a partnership, and the other a Michigan corporation.

Defendant movie theater entities entered into licensing agreements with plaintiff distributors which required the defendants to pay the distributors a percentage of the theaters’ gross receipts of the admission prices collected at the box office in exchange for the right to exhibit plaintiffs’ films. The agreements further provided that the distributors’ share of the proceeds was to be held in trust by the exhibitors for the distributors in a separate and distinct fund. Defendants were contractually obligated to prepare and submit to plaintiffs daily statements of the gross receipts derived from the exhibition of the films and to keep and preserve for at least four years full and accurate books and records. Plaintiffs contractually reserved the right to audit the defendants’ books and records at any time.

Plaintiffs used a spot-checking system to verify the accuracy of defendants’ reports. This checking system revealed discrepancies between the amount of gross receipts shown on the written statements prepared and submitted by defendants and the amount shown by the checking system. As a result, plaintiffs made a written request to examine defendants’ business records. Defendants refused to honor the request, and plaintiffs commenced this action.

The original complaint was filed against "Joseph Miskinis d/b/a Oak Drive-In Theatre and Civic Theatre”. Counts I and III set out causes of action for breach of contract by failing to produce for examination the relevant business records, by submitting false and incorrect statements of gross receipts, and by submitting statements of gross receipts which did not fully and completely disclose the gross receipts. Count II of the original complaint was a claim for intentional misrepresentation.

In his answer to the original complaint defendant Joseph Miskinis, Jr., denied being the sole owner of the theaters in question and answered that the Oak Drive-In was owned by a Michigan corporation, that the Civic Theatre was owned by a Michigan partnership, and that the defendant had a minority interest in each entity. Plaintiffs subsequently moved to add parties defendant. The motion was granted, and plaintiffs filed an amended complaint naming as defendants the Oak Drive-In Theatre and the Civic Theatre in addition to Joseph Miskinis.

During the course of discovery plaintiffs moved the trial court for an order requiring defendants to produce their business books and records for examination. Defendants raised the privilege against self-incrimination in opposition to this motion.¹ The trial court granted plaintiffs’ motion, but limited the scope of discoverable documents to those pertaining to the defendants’ theater operations from January 1, 1976, to December 31, 1978. The court further ordered "that neither the plaintiffs nor their agents, employees, or independent contractors who perform the copying and examination of the aforesaid books, documents, and records shall disclose the information obtained from those books, documents, and records during such copying and examination to anyone except plaintiffs’ legal counsel or this court.”

Defendants sought leave to appeal to the Court of Appeals, which was granted. The Court affirmed the judgment of the lower court in an unpublished per curiam opinion. The Court of Appeals rejected defendants’ claim that the production of documents was protected by the privilege against self-incrimination, Const 1963, art 1, § 17; US Const, Am V. Reasoning that the privilege against self-incrimination applies only to natural persons and that a corporation, a creature of the state, could not assert the privilege to avoid the production of its records, the Court of Appeals held that production was justified because the records were those of a particular corporation as opposed to the personal records of any individual. The officer of the corporation in possession of corporate books could not assert his own privilege against self-incrimination to prevent their disclosure inasmuch as he only held the records pursuant to his duty to the corporation, unless the materials were his own personal records. This reasoning was also found to be applicable to a partnership. The Court of Appeals modified the trial court’s order to the extent that it could be read as requiring production of Joseph Miskinis’ personal tax returns if they should be found by the trial court to be personally incriminating to the individual defendant.

This Court granted defendants’ application for leave to appeal. 414 Mich 868 (1982). We affirm the decision of the Court of Appeals.

II. Federal Constitutional Provision: Amendment V

We begin our analysis with an examination of the Fifth Amendment of the United States Constitution² to determine whether federal constitutional law prohibits the compelled production of the documents at issue in this case. The Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another. The privilege applies only to natural persons and thus cannot be utilized by or on behalf of any organization, such as a corporation. United States v White, 322 US 694; 64 S Ct 1248; 88 L Ed 1542 (1944); Hale v Henkel, 201 US 43; 26 S Ct 370; 50 L Ed 652 (1906).

The United States Supreme Court has repeatedly held that the custodian of an organization’s books and records cannot refuse to produce the documents even if they might be personally incriminating to the custodian. In Wilson v United States, 221 US 361; 31 S Ct 538; 55 L Ed 771 (1911), the Court upheld the contempt conviction of Wilson, president of the United Wireless Telegraph Company, for his refusal to obey a grand jury subpoena duces tecum requiring the production of the corporation’s letter-press copy books. The Court focused on the nature of the documents as the books of the corporation and on the capacity in which they were held, despite the fact that Wilson himself had written many of the business entries in his capacity as executive officer of the corporation. The Wilson Court reasoned that because of the corporate form of business activity, with its chartered privileges, the corporation could not refuse the government’s demand to examine books when that demand is expressed in lawful process and is reasonable under the circumstances. "This is involved in the reservation of the visitatorial power of the state, and in the authority of the National Government where the corporate activities are in the domain subject to the powers of Congress.” Wilson, p 382. See also Hale v Henkel, supra, pp 74-75. The reserved power of visitation would be defeated if "guilty officers could refuse inspection of the records and papers of the corporation”, and it was held that the visitatorial power which existed with respect to the corporation necessarily reached the corporate books regardless of the conduct of the custodian.

While the Court’s reasoning in Wilson could fairly be read as applying only to the production of corporate documents, subsequent decisions of the Court make clear that production of documents of other types of organizations may be compelled against Fifth Amendment objections. In United States v White, 322 US 694; 64 S Ct 1248; 88 L Ed 1542 (1944), it was held that an "assistant supervisor” of an unincorporated labor union who had possession³ of books subpoenaed by a federal grand jury could not refuse to produce the documents even though they might have tended to incriminate the union and himself personally. The Court held that individuals, when acting as representatives of a collective group, are not exercising their personal rights, duties, and privileges, but rather assume the rights, duties, and privileges of the entity of which they are agents or officers and are bound by its obligations. The Court explained:

"The reason underlying the restriction of this constitutional privilege to natural individuals acting in their own private capacity is clear. The 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 greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. 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. See Hale v Henkel, supra, 70, 74; 8 Wigmore on Evidence (3d ed), § 2259a. 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.” White, p 700.

Most relevant to our present analysis is the Court’s reasoning that an association’s inability to rely on the privilege against self-incrimination does not depend solely on the fact that the state charters corporations and retains visitatorial powers over them,⁴ but rather on the "inherent and necessary power of the federal and state governments to enforce their laws, with the privilege against self-incrimination being limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records”. White, pp 700-701. The Court articulated the following standard:

"The test, rather, is whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only. If so, the privilege cannot be invoked on behalf of the organization or its representatives in their official capacity.” White, p 701.

Bellis v United States, 417 US 85; 94 S Ct 2179; 40 L Ed 2d 678 (1974), dispels any suggestion that the White test depends solely on the size of the organization. Bellis had been one of the three partners of the law firm Bellis, Kolsby & Wolf. After he left the firm to join another law firm, the partnership was dissolved, and the other two partners formed a new partnership. Almost four years after the dissolution of the earlier partnership, Bellis was served with a subpoena directing him to appear before a grand jury and to bring the partnership records that were in his possession. Bellis asserted his Fifth Amendment privilege as a basis for refusing production of the records, and he was held in contempt.

In Bellis the Supreme Court reasoned that the "organized, institutional activity” language used in United States v White, supra, "presupposes the existence of an organization which is recognized as an independent entity apart from its individual members” that "must maintain a distinct set of organizational records, and recognize rights in its members of control and access to them”. The subpoenaed records must in fact be organizational records held in a representative capacity, and it must be fair to say that the records demanded are the records of the organization rather than those of the individual. Bellis, supra, pp 92-93.

The Court held that partnerships could represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership’s financial records. With respect to the small size of the partnership,⁵ the Court found that the partnership had an established institutional identity independent of its individual members observing, among other things,⁶ that the firm held itself out to third parties as an entity with an independent existence. The Court flatly rejected any suggestion that the Court’s formulation in White, supra, could be reduced to a simple proposition based solely upon the size of the organization. The Court found that Beilis held the subpoenaed partnership records in a representative capacity.

From the federal precedent discussed above we distill a three-step inquiry for determining whether the Fifth Amendment privilege against self-incrimination prohibits the compelled production of an organization’s documents:

1. Are the documents the records of the organization rather than those of the individual who has possession of them?

2. Does the custodian hold the records in a representative, rather than a personal, capacity?

Assuming affirmative answers, in the case of a corporation the inquiry is ended because of the special nature of the corporate form and the state’s reservation of visitatorial powers over corporations. See Bellis v United States, supra; United States v White, supra; Grant v United States, 227 US 74; 33 S Ct 190; 57 L Ed 423 (1913); Wilson v United States, 221 US 361, 382; 31 S Ct 538; 55 L Ed 771 (1911). In the case of non-corporate organizations, however, a third question arises:

3. Does the organization have an established institutional identity which is recognized as an entity apart from its individual members?

With respect to the first question, i.e., the identity of the documents, we note that there has been no assertion by defendants that the documents for which production was compelled are the personal documents of Joseph Miskinis, Jr., the individual asserting the privilege. The trial court’s order,⁷ as modified by the Court of Appeals,⁸ required the production of corporate and partnership records only.

Nor is there any argument that Joseph Miskinis, Jr., holds these records in a personal capacity. In their answers to interrogatories and in their brief in support of this appeal, defendants admit that Joseph Miskinis, Jr., had possession of the records of the partnership and corporation.⁹ Thus, regardless of whether he held these documents as the official or authorized custodian of the corporate and partnership records, since he had possession of all of the desired documents, Miskinis must be deemed, for purposes of this litigation, to be holding the records on behalf of the organization. See United States v White, supra, and fn 3 supra. Otherwise, an organization could shield itself from the compulsory production of documents merely by the expedient of dividing possession of the documents among more than one of its members, none of whom is regarded as the official custodian of records.

Our finding that the documents are corporate documents held by Joseph Miskinis, Jr., in a representative capacity makes unnecessary any further analysis with respect to the documents of the corporate defendant, Oak Drive-In Theatre Company. We hold that the production of these documents is not prohibited by the Fifth Amendment.

With respect to the documents of the partnership Civic Theatre Company, however, our analysis does not end here, and we must determine whether the partnership has an established institutional identity which is recognized as an entity apart from its individual members. We find that it does have such an independent identity.

Defendants argue that plaintiffs always dealt with defendants as if they were dealing solely with Joseph Miskinis, Jr., and that this action was initially commenced solely against him. The test for determining whether an entity had an independent identity for Fifth Amendment purposes, however, is not the knowledge of the plaintiffs, but rather how the defendants were perceived by the public at large and whether the organization held itself out to third parties as an entity with an independent existence. See text accompanying fn 6.

In support of our finding we rely upon the fact that the Civic Theatre Company maintained separate partnership records and had a separate bank account. Bellis, supra. The Civic Theatre employed more than one hundred temporary employees during the four-year period of 1977 to 1980. Most persuasive, however, is the fact that at the commencement of this litigation the individual defendant asserted the partnership structure of the Civic Theatre as a bar to his personal liability. Indeed, he answered the original complaint by stating that he owned only a minority interest in both business entities, thereby relying upon the separate partnership identity of the Civic Theatre Company to avoid personal liability. Having done so, it is proper to permit all of the parties to rely on the existence of the partnership.

Defendants have repeatedly argued in support of the Fifth Amendment privilege that the plaintiffs always believed that they were dealing exclusively with Joseph Miskinis, Jr.¹⁰ This argument and the facts of this case would lead to the incongruous result that the business was identified with Joseph Miskinis, Jr., a minority interest owner, and that the owners of the majority interest were not even identified as the individuals who comprised the business. The logical result of defendants’ argument would be that the minority owner could assert his privilege against self-incrimination because he was known to plaintiffs, but that the owners of the majority interest could not assert this privilege to protect the production of records because their ownership interest was unknown, leaving unprotected those against whom the documents would probably be most incriminating.

Hence, adopting defendants’ reasoning would require reformulating the relevant inquiry. The issue would turn not on the objective reality of the business relationship, but rather on how the relationship was subjectively perceived. The availability of the Fifth Amendment privilege would rest then on ad hoc determinations which would make the privilege available to certain members of an organization with respect to some parties and not with respect to others.

Moreover, we find that the existence of "secret” or unknown partners supports a finding of an established institutional identity apart from the individual members. Obviously, the unknown partners have no individual identity with respect to the business operations to confer upon the organization.

We are mindful of the following language in Bellis v United States, supra, 417 US 101, relied upon by defendants:

"This might be a different case if it involved a small family partnership, see United States v Slutsky, 352 F Supp 1105 (SD NY, 1972); In re Subpoena Duces Tecum, 81 F Supp [418, 421 (ND Cal, 1948)], or, as the Solicitor General suggests, * * * if there were some other preexisting relationship of confidentiality among the partners.”

Having examined the cases cited, we conclude that the language merely was meant to restate that the papers required to be produced must not be the private and personal papers of the individuals held in a personal capacity. While this is a "family” partnership, we read the Court’s use of this word to denote a partnership so small and informal that the partnership’s records and papers are inseparable from the personal and private papers of its members. Such is not the case here.

Accordingly, we hold that the compelled production of the corporate and partnership records and books does not violate the Fifth Amendment privilege against self-incrimination.

III. Michigan Constitutional Provision: Article 1, Section 17

Defendants argue alternatively that even if production of the records and books is not protected under the federal constitution, it is protected under the Michigan Constitution, Const 1963, art 1, § 17, which provides:

"Sec. 17. No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.”

Plaintiffs respond that the Michigan constitutional provision is identical to the federal provision and has been treated similarly by this Court. The precedents relied upon by defendants are distinguishable on the ground that they involve disclosures in the context of criminal proceedings. Plaintiffs argue that public policy does not warrant an application of the Michigan Constitution disparate from that of the United States Constitution and that to adopt the principles urged by defendants would result in the establishment of imponderable barriers to effective civil discovery.

Having examined prior decisions of this Court, we find nothing which requires an interpretation of our constitutional privilege against self-incrimination different from that of the United States Constitution. "The provision in each Constitution is the same.” In re Moser, 138 Mich 302, 305; 101 NW 588 (1904).

Initially we note that our holding does not depend on the fact that all of the precedent relied upon by defendants involves cases where production was required in a criminal proceeding, as plaintiffs suggest. The constitutional privilege against self-incrimination applies to evidence in a civil proceeding which might subject the witness to criminal prosecution. Berney v Volk, 341 Mich 647, 651; 67 NW2d 801 (1955).

This Court has previously addressed the issue of the production of corporate documents in two cases. In In re Moser, supra, a grand jury investigating corruption among municipal officers subpoenaed the books and records of the company of which Moser was president. Moser had possession of the subpoenaed books and records. He refused to produce the books, but not for the reason that they would incriminate him.¹¹ Moser was convicted of contempt of court. His conviction was affirmed by this Court. Noting that the documents could not have been incriminating to Moser since he was not associated with the corporation during the relevant time period, this Court found that the sole basis for the petitioner’s refusal to produce the books was his desire to protect the officers of the corporation during the time under investigation. The Court stated the rule thus:

"We think the rule is this: One cannot be compelled to produce his own books, or the books of another, which are under his control as agent or otherwise, where their production would tend to criminate him; neither can his clerk, whose possession is his possession, be required to produce them; but when, as the agent of another, he chooses to make entries on the books of that other, and those books are in the actual and legal possession and control of another officer of the corporation, or of the corporation itself, such officer may be compelled to produce them, in a proper case, under a subpoena duces tecum.” (Emphasis added.) In re Moser, pp 314-315.

St John v General Motors Corp, 308 Mich 333; 13 NW2d 840 (1944), was a civil action commenced by 28 female employees of the defendant to recover the difference between wages paid them and those paid to male employees engaged in similar employment. The plaintiffs sought the defendant’s employment records by subpoena duces tecum, and the defendant objected to the introduction at trial of the records on the ground of self-incrimination because the alleged wage discrimination was a misdemeanor.

The St John Court, p 337, cited Moser for the proposition that "the privilege against self-incrimination is personal to a witness and cannot be claimed in behalf of another, inclusive of an employing corporation, unless guilt of the witness producing the record is also involved”. (Emphasis added.) This Court held that the privilege did not apply to the subpoenaed documents.

Defendants rely on the language from Moser and St John, emphasized above, to support their contention that the books and records are privileged if they will be personally incriminating to Miskinis. We agree that these opinions lend themselves to such an interpretation. Nevertheless, we find, as did the Court of Appeals, that the emphasized portions of these opinions are dicta to the extent that they state that a custodian of corporate and partnership records can refuse to produce them on the grounds that they are personally incriminating to him because neither Court was faced squarely with, nor fully addressed, the issue.

Now being faced squarely with the. issue in this context, we decline to construe art 1, § 17 more liberally than the Fifth Amendment. This constitutional provision "should be construed to effect a practical and beneficial purpose”. In re Watson, 293 Mich 263, 275; 291 NW 652 (1940). So sweeping an interpretation is not dictated by, nor consonant with, public policy. Such a ruling would drastically impede the investigation of white collar crime, e.g, tax evasion, embezzlement, bribery, and corruption. Moreover, discovery in civil cases would be severely restricted whenever the conduct underlying the civil liability might also give rise to criminal liability, e.g., antitrust violations and securities fraud. See St John v General Motors Corp, supra. This would be contrary to Michigan’s "strong historical commitment to a far-reaching, open and effective discovery practice”. Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974). Permitting custodians of an organization’s records to assert their privilege to bar production of the documents would encourage persons contemplating criminal conduct to carry it out under the name of a corporation or partnership, thus guaranteeing immunity from personal civil liability while enjoying the personal privilege against self-incrimination. Indeed, as we noted earlier, the individual defendant, Joseph Miskinis himself, raised the separate legal status of the theater, answering the original complaint by denying personal liability on the grounds that the Oak Drive-In Theatre and the Civic Theatre were owned by a corporation and by a partnership, respectively, and that he had a minority interest in each entity. Defendant, having shielded himself from civil liability behind the veil of the corporate and partnership entities, cannot now lift the veil to gain the benefit of using his personal privilege to conceal business records.

Defendants also argue, however, that an amendment to the provision made in the constitution precludes the production of the documents here. Prior to adoption of the Constitution of 1963, the analogous provision of the Constitution of 1908 was as follows:

"No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.” Const 1908, art 2, § 16.

The Constitution of 1963 kept the above-quoted language intact and added the following language:

"The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.”

Defendants rely on the inclusion of the word "individuals” and argue that by including individuals, without distinction, with firms, corporations, and voluntary associations, it is clear that an individual who is an officer of a corporation or a partner in a firm who is in control of, and in charge of, and who is responsible for the composition, contents, possession and authorship of documents and records, is fully entitled to the benefits of the privilege against self-incrimination. We disagree.

The record of the Constitutional Convention makes clear that this added language. was intended as a new guarantee of fair and just treatment in legislative and executive investigations.¹² This amendment was not intended to modify the scope of the privilege against self-incrimination.

Finally, since the minority opinion avoids the issue of the scope of the Michigan constitutional provision against self-incrimination by finding that there was a contractual waiver of the privilege against self-incrimination, a comment on this analysis is appropriate. The contractual waiver provision was never raised by any party and was neither briefed nor argued before this Court. We would not hold that this Court should never address an issué not raised by the parties. Indeed, this Court has done so, rarely, in limited circumstances where justice so required. See, e.g., City of Dearborn v Bacila, 353 Mich 99, 118; 90 NW2d 863 (1958). Nevertheless, where it appears that there may be a cognizable response to an issue, the preferable course of action would be a remand to permit the trial court to resolve the issue. The minority has cited no case for the proposition that this Court can resolve a case on the basis of an issue not raised by the parties in order to avoid resolution of a constitutional issue.

IV. Conclusion

Accordingly, we hold that the compelled production of the books and records of the Oak Drive-In Theatre Company and the Civic Theatre Company is not violative of Const 1963, art 1, § 17. The trial court’s order, as modified by the Court of Appeals, adequately protects the individual defendant’s right against self-incrimination with respect to non-corporate and non-partnership records. The judgment of the Court of Appeals is affirmed.

Williams, C.J., and Ryan and Brickley, JJ., concurred with Boyle, J.

1 Because defendant Joseph Miskinis was the only named defendant at the time his objections to plaintiffs’ motion for production of documents were filed, this Court assumes that he raised this issue only as to himself and not as to the corporation and partnership.

2 "No person * * * shall be compelled in any Criminal Case to be a witness against himself.”

3 The subpoena was served on the union president. The assistant supervisor was not the authorized custodian of the union’s books, but had possession of the books demanded.

4 See also Bellis v United States, 417 US 85, 89; 94 S Ct 2179; 40 L Ed 2d 678 (1974).

5 Bellis involved a three-person partnership, the same size as the Civic Theatre Company partnership involved in this case.

6 The Court also cited the 15-year continuing existence of the firm, a bank account maintained in the partnership name, the use of stationery with the firm’s name on the letterhead, the firm’s employment of six persons in addition to the three partners, including two lawyers who practiced law on behalf of the firm, and the firm’s filing of separate partnership federal tax returns.

7 The trial court ordered that the defendants produce for copying and examination by plaintiffs the following documents "pertaining to the defendants’ operation of the Civic Theatre and Oak Drive-In Theatre for the period of January 1, 1976, through December 31, 1978

"1. All records of ticket sales;

"2. All cash receipts, journals and ledgers in which the proceeds of ticket and concession sales are recorded;

"3. All bank account statements and deposit receipts for proceeds derived from ticket and concession sales;

"4. All books, records, and documents showing the computation and payment of license fees to plaintiffs and other distributors;

"5. All records prepared by the individual employees of defendants showing their respective daily ticket sales;

"6. All records and documents pertaining to the purchase of tickets by defendants for sale to their customers;

"7. All federal, state, and local tax returns on which the proceeds from ticket and concession sales were reported;

“8. All reports to federal, state, and local governmental agencies pertaining to ticket and concession sales;

"9. The general ledger for each theater;

"10. All daily box office statements and reports;

"11. All booking sheets and reports;

"12. All unused tickets; and

"13. All admission returns and records.”

It further provided "that neither the plaintiffs nor their agents, employees, or independent contractors who perform the copying and examination of the aforesaid books, documents, and records shall disclose the information obtained from those books, documents, and records during such copying and examination to anyone except plaintiffs’ legal counsel or this court”.

8 The Court of Appeals modified the discovery order as follows:

"To the extent the trial court’s discovery order includes corporate and partnership records, these principles require that it be affirmed. Defendant Miskinis’s personal right against self-incrimination has no application to those documents, inasmuch as he holds them as corporate officer and/or partner. Our reading of the discovery order leaves us with the impression that all of the requested records fit within this holding. Nonetheless, it is conceivable that item #7, requiring production of 'Federal, state, and local tax returns on which the proceeds from ticket and concession sales were reported’, could include defendant Miskinis’s personal tax returns, as opposed to just those of the corporation and partnership. Should the order turn out to cover personal tax returns and should defendant Miskinis be convinced that such returns contain incriminating information, Miskinis may present the returns to the trial court to determine whether that is the case. The trial court, upon determining that such returns are incriminating personal records, shall delete any incriminating portions and permit plaintiffs to examine and copy the remaining parts to the extent they are pertinent to this lawsuit.”

9 Defendants admit that Joseph Miskinis, Jr., has possession of all of the partnership’s records, but it is not clear whether he has all of the corporation’s records.

10 We note that the original complaint named "Joseph Miskinis d/ b/a Oak Drive-In Theatre and Civic Theatre” as the defendant, and names only "Joseph Miskinis” throughout the complaint. Thus, it is not clear whether the plaintiffs were naming as the original defendant Joseph Miskinis, Sr., or Joseph Miskinis, Jr. The complaint was answered by Joseph Miskinis, Jr. However, the notice of death of defendant filed in this case reads:

"Notice is hereby given that Joseph Miskinis, Senior, one of the partners who owned and operated the Civic Theatre, and the defendant in this case, died on November 17, 1979, leaving the sole surviving partner, Joseph Miskinis, Junior.

"By virtue of the partnership Memorandum, dated January 2, 1941, the death of either partner dissolved the partnership.” (Emphasis added.)

It appears that defendants have taken inconsistent positions with respect to whom they consider to be the individual defendant.

11 In fact, Moser repeatedly stated to the grand jury that the books and records called for by the subpoena could in no way tend to incriminate him.

12 "This is a revision of Sec. 16, Article II of the present constitution. The second sentence incorporates a new guarantee of fair and just treatment in legislative and executive investigations. This recognizes the extent to which such investigations have tended to assume a quasi-judicial character.

"The language proposed in the second sentence does not impose categorically the guarantees of procedural due process upon such investigations. Instead, it leaves to the Legislature, the Executive and finally to the courts, the task of developing fair rules of procedure appropriate to such investigations. It does, however, guarantee fair and just treatment in such matters.” 2 Official Record, Constitutional Convention 1961, p 3364.