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Florida Law Review

Abstract

The Fifth Amendment’s Self-Incrimination Clause prevents those under criminal or civil investigation from being compelled to incriminate themselves, but there is a major exception: the collective entity doctrine. The collective entity doctrine provides that no person may refuse to produce corporate documents under the Self-Incrimination Clause when he holds those documents in a representative capacity on behalf of a corporation. The United States Supreme Court, in its most recent decision on the issue, reasoned that an employee holding corporate documents in this manner produces them on behalf of the corporation and not in his own personal capacity. Thus, the Self-Incrimination Clause cannot apply.

However, federal circuit courts have split on whether this is the case for former corporate employees as well, or, in other words, whether the collective entity doctrine requires former corporate employees to respond to documentary subpoenas. This Note examines which side of the split is most consistent with Supreme Court precedent. To that end, it examines the history of the collective entity doctrine, its reasoning, and its recent applications. Ultimately, this Note concludes that the collective entity doctrine should not apply to former corporate employees because the Court has consistently identified the agency relationship between an employee and his corporation as the key element required for the doctrine to apply. Therefore, a former employee with no remaining agency relationship with his former corporation should not be compelled to produce personally incriminating documents. This Note then assesses avenues for the investigation of corporate crimes in the absence of the collective entity doctrine.

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