In a May 15, 2015 opinion, In re: In the Matter of the Grand Jury Empaneled on May 9, 2014, the US Court of Appeals for the Third Circuit clarified that the privilege against self-incrimination guaranteed by the Fifth Amendment to the US Constitution is not applicable to a corporation or corporate custodian, no matter the corporation's size (No. 15-1264, (3d. Cir. May 15, 2015)).

As part of an investigation into the corruption of a medical contractor, the government issued a subpoena for documents held by a medical practice. The practice was formed as a professional association under New Jersey law by a medical doctor, who operated his practice through that corporate entity. The medical doctor, the sole owner of the practice, served as the practice's custodian of records. The practice employed a staff of six as of October 2011. The doctor, as custodian, moved to quash the subpoena based on his Fifth Amendment privilege against self-incrimination. The district court denied his motion. After the doctor's continued refusal to comply with the subpoena, the district court held the medical practice in contempt. The medical practice appealed.

Shortly before the opening appellate briefs were filed, all of the practice's employees were fired and the medical doctor became its sole employee. Despite this development, the Third Circuit, examining US Supreme Court precedent, concluded that the Fifth Amendment privilege does not apply to corporations, no matter their size. The court noted that the medical doctor's act of producing documents was in his official capacity as the document custodian of the practice and recognized that the Supreme Court clearly stated that there is no Fifth Amendment privilege available to corporate custodians.

The court briefly discussed the difference between incorporated and unincorporated entities. The court noted that an unincorporated sole proprietorship would have its business records protected by the privilege against self-incrimination. Here, however, the medical doctor incorporated his solo practice and therefore lost the ability to claim Fifth Amendment privilege over his business documents.

The Third Circuit's decision is in accord with similar decisions taken in the US Courts of Appeals for the First, Second and Fourth Circuits, which have all agreed that a corporate custodian may not refuse to comply with a subpoena on Fifth Amendment grounds merely because he is also that corporation's sole owner and employee. Practitioners should note that courts in these jurisdictions will not allow any corporation to claim a Fifth Amendment privilege against self-incrimination.