Filed: Jun. 12, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10390 _ IN RE: GRAND JURY PROCEEDINGS _ Appeal from the United States District Court for the Northern District of Texas _ (June 9, 1995) Before KING, JOLLY, and DeMOSS, Circuit Judges. PER CURIAM: The district court below determined that certain "daytimers" sought by the government in an ongoing grand jury investigation were properly characterized as corporate documents and hence beyond the purview of the Fifth Amendment privil
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10390 _ IN RE: GRAND JURY PROCEEDINGS _ Appeal from the United States District Court for the Northern District of Texas _ (June 9, 1995) Before KING, JOLLY, and DeMOSS, Circuit Judges. PER CURIAM: The district court below determined that certain "daytimers" sought by the government in an ongoing grand jury investigation were properly characterized as corporate documents and hence beyond the purview of the Fifth Amendment privile..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10390
_____________________
IN RE: GRAND JURY PROCEEDINGS
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(June 9, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:
The district court below determined that certain "daytimers"
sought by the government in an ongoing grand jury investigation
were properly characterized as corporate documents and hence beyond
the purview of the Fifth Amendment privilege against self-
incrimination. The appellants, John Doe I and John Doe II, are
executives in a company which is the subject of an ongoing grand
jury investigation into possible price fixing within a certain
industry. The appellants filed a timely appeal to this court,
contending that the daytimers were personal documents and therefore
privileged by the Fifth Amendment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We have previously issued two unpublished opinions in
connection with this case, No. 94-11133 (Feb. 6, 1995) and No. 95-
10390 (May 8, 1995), both of which are to remain under seal until
such time as, in the discretion of the district court or this
court, is necessary to prevent disclosure of matters relating to
those proceedings. In our second opinion, rendered May 8, 1995, we
denied the appellants' request for a stay of the district court's
order holding them in contempt for their failure to turnover
certain daytimer calendars sought by the grand jury. Following our
denial of their motion for a stay, on May 11, 1995, appellants
turned over their daytimers to the grand jury and purged themselves
of their contempt. Having now turned over the daytimers, the
appellants seek review on the merits of the district court's
turnover order; specifically, the appellants challenge the
determination that the daytimers were corporate, not personal,
documents and hence not privileged under the Fifth Amendment. See
Braswell v. United States, 487 U.S. 99, 113 (1988); United States
v. White,
322 U.S. 694, 699 (1944).
II. STANDARD OF REVIEW
The question of whether the district court applied the correct
legal standard in determining whether a given document is corporate
or legal in nature is, of course, a question of law over which we
exercise plenary review. However, the parties agree that the
determination of whether a particular document is corporate or
personal is, by its very nature, a factual inquiry. Accordingly,
provided the district court has applied the correct legal standard,
we may reverse its determination as to the corporate or personal
nature of a given document only if it is clearly erroneous. A
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finding is clearly erroneous only if, viewing the evidence in light
of the record as a whole, we are left with the "definite and firm
conviction that a mistake has been committed." United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). Where there
are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous. Anderson v. City of
Bessemer City,
470 U.S. 564, 574 (1985); United States v. Yellow
Cab Co.,
338 U.S. 338, 342 (1949).
III. ANALYSIS
The appellants argue that the district court clearly erred in
finding that the daytimers in question were corporate documents.
Specifically, appellants contend that the district court
impermissibly placed dispositive emphasis on the nature of the
documents rather than placing them in context of numerous relevant
factors, including ownership, access, preparation, and use.
Specifically, they argue that the district court should have used
a multi-factor approach similar to that articulated in In re Grand
Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 522 F. Supp. 977
(S.D.N.Y. 1981), which they characterize as "the most cogent and
thoughtful implementation of these factors . . . . "
It is apparent from the district court's opinion that it
adopted a multi-factor approach analogous to that used in In re
Grand Jury Subpoena Duces Tecum Dated Apr. 23, 1981, 657 F.2d 5 (2d
Cir. 1981), the opinion which established the multi-factor approach
used by the district court on remand in In re Grand Jury Subpoena
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Duces Tecum Dated Apr. 23, 1981, 522 F. Supp. 977 (S.D.N.Y. 1981)--
the case now contended by appellants to represent the correct legal
standard. The district court concluded that, unlike the pocket
calendar deemed to be personal in In re Grand Jury Subpoena Duces
Tecum Dated Apr. 23, 1981,
522 F. Supp. 977, 982-84 (S.D.N.Y.
1981), the appellants' calendars were more akin to the desk
calendar and pocket diaries decreed to be corporate in United
States v. MacKey,
647 F.2d 898 (9th Cir. 1981). While the district
court thought that the facts in MacKey were "more apposite" than
the facts in In re Grand Jury Subpoena Duces Tecum Dated Apr. 23,
1981, it is nonetheless clear that, in determining whether the
appellants' daytimers were corporate or personal in nature, the
district court used a multi-factor balancing approach similar to
that advocated by the appellants.
The question now squarely presented before this court is one
of first impression in this circuit-- namely, whether the district
court's use of a multi-factor balancing approach in determining
whether a document is corporate or personal in nature is the
correct legal standard. We think so.
A multi-factor balancing approach attempts to answer the key
question: what is the essential nature of the document? It
attempts to answer this question in light of the entire context of
the ownership, preparation and use of the document. We agree with
the Second Circuit that the following nonexhaustive list of
criteria is relevant in this inquiry: who prepared the document;
the nature of its contents; its purpose or use; who possessed it;
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who had access to it; whether the corporation required its
preparation; and whether its existence was necessary to or in
furtherance of corporate business. In re Grand Jury Subpoena Duces
Tecum Dated Apr. 23, 1981, 657 F.2d at 8; accord United States v.
Wujkowski,
929 F.2d 981, 984 (4th Cir. 1991).
Having agreed with the appellants' that the multi-factor
approach is the correct legal standard to be applied in such cases
does not end our inquiry. The appellants contend that, in applying
the multi-factor standard, the district court clearly erred in its
conclusion that the daytimers were corporate documents.
Specifically, the appellants contend that the district court failed
to take into account the statements made by appellants in their
affidavits and relied upon evidence submitted by the government in
camera without providing the appellants' an opportunity to test the
veracity or credibility of such evidence.
The affidavits submitted by the appellants asserts that the
appellants considered their daytimers to be personal documents,
prepared and maintained primarily for personal aspects of their
lives rather than for business purposes. Moreover, they argue that
"the ratio of personal to business entries does not determine a
document's essential nature," and that "an otherwise personal
document is not transformed into a corporate document merely
because it contains business-related entries . . . ." We agree
that the determination of the essential character of a document
does not hinge upon some magical percentage of personal versus
corporate entries. However, this does not mean that the ratio of
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personal to corporate entries is irrelevant. As a general rule,
the greater proportion of personal entries, the more likely it is
that the trier of fact could reasonably conclude that it was
prepared, used, and maintained as a personal document. Conversely,
the greater proportion of business-related entries, the more likely
it is that the trier of fact could reasonably conclude that the
document was prepared, used, and maintained as a corporate
document. This is not to say, however, that other evidence
regarding the preparation, use, and maintenance of a given document
may not tilt the balance in the other direction. Indeed, a multi-
factor approach to the determining the nature of a document
requires a court to view all relevant factors in context, giving
greater or lesser weight to a given factor as the quality or
quantity of evidence demands.
In this case, the district court implicitly determined that
the potentially self-serving affidavits of the appellants were not
credible in light of other, more objective evidence. For example,
the district court noted that, on their face, the daytimers
contained primarily business-related entries. Our review of the
daytimers confirms this impression as reasonable. The overwhelming
majority of entries in these daytimers concern such things as
employee bonuses and raises, staff meetings, business-related
travel itineraries, car mileage, daily business "to do" lists, and
summaries of meetings. In addition, we find it telling that John
Doe I's daytimers for 1988, 1990, and 1991 contained a sheet which
stated that, "if found," the daytimer should be returned to John
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Doe I at his company address.1
The district court also noted that it was influenced by the
evidence submitted by the government in camera. Our review of this
evidence indicates that it supports the district court's
conclusion. Because of the great need for continued secrecy in the
grand jury investigation, the district court decided to receive
this evidence in camera and we do not think that the district
court's decision to proceed in this manner was an abuse of
discretion. Cf. United States v. Zolin, 491 U.S. 554, 572 (1989)
(stating that, in context of determining the applicability of the
crime-fraud exception to an assertion of the attorney-client
privilege, "the decision whether to engage in in camera review
rests in the sound discretion of the district court."). The
appellants had ample opportunity to provide any information to the
district court which they believed supported their contention that
the daytimers were personal documents and indeed, they submitted
affidavits to that effect. The appellants' essentially challenge
the district court's credibility determination favoring the
government's more objective evidence over their own affidavits.
The appellants have proffered no evidence which suggests that the
district court's credibility choice was an abuse of discretion and
we therefore find this argument to be without merit.
In the totality of these circumstances, the district court's
conclusion that the daytimers were prepared, maintained, and used
1
This "if found" sheet was left blank in daytimers for the
other years in question.
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for business, not personal, purposes is not clearly erroneous.2
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
2
Appellee has moved this court to impose sanctions pursuant
to Rules 27(a) and 38 of the Federal Rules of Appellate Procedure,
as well as 28 U.S.C. ยง 1912, on grounds that the appeal is wholly
frivolous.
While appellee's motion presents an arguably close call, we
decline to grant the motion as our opinion on the merits
necessitates the pronouncement of a legal standard for which there
was no prior precedent in this circuit. Although the legal
standard we ultimately adopt was favorably mentioned in our prior
opinion denying the appellants' motion to stay the district court's
order of contempt, No. 95-10390 (May 8, 1995), the appeal on the
merits undoubtedly raised an issue of first impression and the
appeal should therefore not be characterized as frivolous.
Accordingly, appellee's motion to impose sanctions is hereby
DENIED.
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