U.S. Supreme Court Dreier v. United States, 221 U.S. 394 (1911)
Dreier v. United States
No. 358, 359
Argued March 2, 3, 1911
Decided May 15, 1911
221 U.S. 394
ERROR TO AND APPEAL FROM THE CIRCUIT COURT OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK
Wilson v. United States, ante, p. 221 U. S. 361 , followed to effect that an officer of a corporation cannot refuse to produce books and papers of the corporation in response to a subpoena duces tecum on the ground that the contents thereof would tend to incriminate him personally.
Quaere whether, if a privilege to refuse to produce documents of a corporation
in response to a subpoena duces tecum does exist, the person entitled to claim it may not waive it by his conduct.
The facts, which involve the validity of a subpoena duces tecum issued to the custodian of the books of a corporation, and the right of such custodian to refuse to produce the documents required by such subpoena on the ground that they would incriminate him, are stated in the opinion.
MR. JUSTICE HUGHES delivered the opinion of the Court.
The plaintiff in error and appellant, William Dreier, was subpoenaed to produce before the grand jury in the circuit court certain books and papers of the Lichtenstein Millinery Company, a New York corporation, of which he was the secretary. The grand jury was conducting an inquiry with respect to alleged violations of the customs laws by N. Hayes and others. The subpoena contained the ad testificandum clause, but the only question presented is with respect to the demand for the corporate documents. For his refusal to produce them for the inspection of the grand jury, Dreier was committed for contempt. The first case (No. 358) is a writ of error to the circuit court to review the judgment holding him to be in contempt, and directing his commitment, and the second (No. 359) is an appeal from an order dismissing a writ of habeas corpus. The contention of Dreier in both cases is
that the contents of the books and papers would tend to incriminate him, and that the proceedings to compel their production were in violation of the Fifth Amendment of the Constitution of the United States.
It is urged that, if he had a privilege, his conduct was such as to constitute a waiver. But it is not necessary to consider the case in this aspect. Dreier was not entitled to refuse the production of the corporate records. By virtue of the fact that they were the documents of the corporation in his custody, and not his private papers, he was under obligation to produce them when called for by proper process. Wilson v. United States, decided this day, ante, p. 221 U. S. 361 . In that case, the writ was directed to the corporation, and here it was addressed to the custodian. As he had no privilege with respect to the corporate books and papers, it was his duty to obey.
MR. JUSTICE McKENNA concurs in the result upon the ground of waiver.