Paramount Pictures Corp. v. Miskinis

Levin, J.

(concurring). The question presented is whether the federal¹ and state² constitutional privileges that protect against compelled self-incrimination preclude a court from requiring Joseph Miskinis, one of the defendants in this civil action, to disclose to the plaintiffs corporate and partnership documents in his possession.

We agree with the majority that the United States Supreme Court has ruled that the Fifth Amendment does not bar the compelled disclosure of corporate and partnership documents held in a representative capacity; consequently, we agree that the Fifth Amendment does not protect Miskinis from being compelled to produce the documents. We also concur with the majority’s decision that Miskinis is not protected by the state privilege from compelled disclosure of the documents. We would hold against his claim of the state privilege, however, because the privilege was waived in the contracts entered into between the plaintiffs and the corporate and partnership defendants. In light of that waiver, we need not reach the question whether this Court should adopt as an exception to the state constitutional privilege the exception to the Fifth Amendment privilege that has been so enunciated by the United States Supreme Court.

I

Miskinis, his mother Mary Miskinis, and his now deceased father Joseph Miskinis, Sr., were partners in a partnership and owned 75% of the capital stock of a corporation that exhibited motion pictures. Miskinis, acting for the partnership and corporation, entered into license agreements with most of the nationwide distributors of motion pictures. Under these agreements, the distributors retained ownership of the motion pictures and permitted exhibitors to show the films. In return, the exhibitor agreed to pay the distributor a percentage of his theater’s gross receipts. To protect against an exhibitor’s understating gross receipts, the license agreements included a requirement that the exhibitor prepare and submit statements of the daily gross receipts. The license agreements also required the exhibitor to retain his records for at least four years. The distributors reserved the right in the agreements to inspect the exhibitor’s records at any time.

Believing that the Miskinis partnership and corporation were understating their gross receipts, and hence paying the distributors less than contractually required, the distributors asked to examine the corporate and partnership records. Their request was denied. The distributors commenced this action alleging breach of contract, in failing to allow inspection of the documents and in submitting false statements of gross receipts, and, originally, intentional misrepresentation.

Miskinis, one of several defendants, possesses most of the records sought in this action. He again refused, after the action was commenced, to produce them for inspection by the distributors, claiming his federal and state constitutional privileges against compelled self-incrimination. The circuit court found that neither the federal nor the state privilege applies to corporate or partnership records and ordered Miskinis to produce the records. The distributors were ordered not to disclose any information which they might find in those records to anyone except their legal counsel or the court. The Court of Appeals affirmed.³

We would affirm, although for different reasons.

II

The Fifth Amendment privilege against compelled self-incrimination, applied to the states through the Fourteenth Amendment,⁴ may be claimed in civil proceedings⁵ if the person claiming the privilege is subject to criminal prosecution and disclosure may incriminate him.⁶ Miskinis may be subject to criminal prosecution for the activities disclosed in the documents now sought,⁷ and therefore may assert the privilege in a civil action.⁸

The Fifth Amendment privilege applies to the compelled production of documents to the extent that a person might incriminate himself by producing them.⁹ In this case, Miskinis would be authenticating documents he produces as being the ones that he kept and the ones that the plaintiffs seek. Neither the circuit court nor the Court of Appeals found that Miskinis’ production of these documents would not be incriminating; neither court found that a subsequent criminal prosecution of Miskinis is not possible, or is no more than an imaginary prospect. Accordingly, unless an exception to the Fifth Amendment privilege precludes Miskinis from invoking it, he may not be compelled to produce the documents.

The Fifth Amendment privilege, however, no longer protects corporate or partnership documents from disclosure.¹⁰ The "corporate documents” exception was first stated in Wilson v United States, 221 US 361, 381-385; 31 S Ct 538; 55 L Ed 771 (1911), where the United States Supreme Court held that a person could be compelled to produce corporate documents that incriminated him. The Court said that, by allowing a business to incorporate, the state reserved the right to inspect the corporation’s documents to assure that the corporation was not abusing the privileges granted by the state. The right of visitation, said the court, was an implied aspect of the compact between the corporation and the state, and could be availed of by the federal government. See id., p 382.

The corporate documents exception was then enlarged to require a member of an unincorporated union to produce incriminating union documents. See United States v White, 322 US 694; 64 S Ct 1248; 88 L Ed 1542 (1944). The Court concluded that the state’s need to regulate the economic activities of large organizations justified an expansion of the corporate documents exception. See White, supra, pp 700-701.¹¹

The Court in White looked to whether the character of the organization was personal or impersonal to distinguish those organizations whose business documents were protected by the Fifth Amendment from those organizations whose documents were not so protected. If the organization had "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”, the Fifth Amendment privilege would not apply to its documents. See id., p 701. The Court noted that the union had a perpetual life and that there was a potential for conflict between the organization and its members; it did not discuss the degree to which the union represented its members to third persons, or whether persons doing business with the union thought in terms of doing business with an independent organizational entity. The language of the test enunciated, and the facts relevant to its application, suggested that the Court was concerned with the relationship between the organization and its members rather than the relationship between the organization and those with whom it did business.¹²

In Bellis v United States, 417 US 85, 95-100; 94 S Ct 2179; 40 L Ed 2d 678 (1974), the Court held that a former partner in a dissolved three-member law firm could be compelled to produce self-incriminating partnership documents,¹³ and appeared to abandon the test enunciated in White.¹⁴ The new test announced in Bellis focused on whether the partnership had "an established institutional identity independent of its individual partners”. Rather than inquiring into the relationship between the members of the partnership and the partnership entity, as suggested in White, the Court inquired into, among other things, the formality of the partnership’s organization and its finances, properties, tax liability, and stationery. The Court declared that the partnership had "held itself out to third parties as an entity with an independent institutional identity”. Also important was that the petitioner, like the union member in White, did not own the records directly, but vicariously through his membership in the entity.

The "corporate documents” exception to the Fifth Amendment appears to have grown as the Court has seen a governmental need to regulate the business activities that might be disclosed in documents. This growth has extended an exception to the privilege first recognized in relation to corporations, in light of their incorporation compact with the state, to the documents of large impersonal organizations and then to the. documents of small, personal partnerships. Recently, the Court re-examined¹⁵ the rule that the Fifth Amendment privilege protects the business documents of a sole proprietor.¹⁶ That the Court confronted what once was regarded as a settled issue demonstrates just how fluid the exception has become.

In light of the exception developed by the United States Supreme Court, we concur with the majority’s conclusion that the Fifth Amendment privilege does not apply to the documents now being sought.¹⁷

Ill

By extending the exception to the Fifth Amendment privilege developed by the United States Supreme Court to the state constitutional privilege, the majority declines to follow previous interpretations of the scope and protections accorded by the state privilege.

This Court has stated, and thereafter reaffirmed, that the state constitutional privilege against compelled self-incrimination should be construed liberally. See In re Schnitzer, 295 Mich 736, 740; 295 NW 478 (1940); People ex rel Moll v Danziger, 238 Mich 39, 42; 213 NW 448 (1927); Joslin v Noret, 224 Mich 240, 244; 194 NW 983 (1923). As with the Fifth Amendment privilege, the state "constitutional provisions regarding the privilege against self-incrimination also apply to [disclosure] in a civil proceeding which might subject the witness to criminal prosecution.” A person thus may "assert the privilege in a civil proceeding * * * even though its assertion would work a hardship upon the civil plaintiff who has no interest whatever in a criminal action if brought.” Berney v Volk, 341 Mich 647, 651-653; 67 NW2d 801 (1955).

This Court has said that the state privilege applies to corporate and partnership documents. The scope, as well as the limits, of the state privilege were discussed in In re Moser, 138 Mich 302, 313-315; 101 NW 588 (1904):

"No private individual can be compelled to produce his books or papers for the purpose of affording evidence against himself in a criminal prosecution. Neither can the subterfuge of subpoenaing his clerk, who has access to or temporary possession of the books for the purpose of his employer’s business, be resorted to, to compel a production of the books. The possession of the clerk in such case is the possession of his employer. * * * 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”.

The Court, discussing the "unreported case of Frazer v Circuit Judge”, said that a person’s privilege against compelled disclosure of self-incriminating documents applied to corporate records:

"In that case the officers of the Detroit City Railway Company, in whose possession and control the books were, and who were under investigation by the grand jury, were ordered by a subpoena duces tecum to produce the books. It requires no argument to show that they were thus required to produce testimony against themselves and were therefore within the protection of the Constitution.”

In re Moser was decided shortly after the United States Supreme Court had held that the Fifth Amendment privilege protected a member of a small partnership from being compelled to produce incriminating partnership records that the partnership was required by federal law to keep. See Boyd v United States, 116 US 616; 6 S Ct 524; 29 L Ed 746 (1886). In light of the holding in Boyd, which was cited approvingly in In re Moser,¹⁸ this Court could thus declare with complete accuracy that "[t]he provision in each Constitution is the same”.¹⁹ This Court has reiterated the view that a person may not be compelled to produce incriminating business documents, see People v Marxhausen, 204 Mich 559, 568-574; 171 NW 557 (1919) (quoting Boyd with approval), or incriminating corporate documents, see St John v General Motors Corp, 308 Mich 333, 337; 13 NW2d 840 (1944).

Today the majority limits the application of the state constitutional privilege to those situations where the federal privilege, with its significant limitations by the United States Supreme Court,²⁰ continues to apply.²¹ By so limiting the Michigan constitutional privilege, the majority holds that a state protection once considered to be undoubted no longer exists.

Although this Court may adopt in the construction of the state constitution those Fifth Amendment doctrines developed by the United States Supreme Court that we are persuaded are correct, we are not bound to incorporate all such doctrines as the measure of the state constitutional privilege. We are not prepared to join at this time in adopting a doctrine as fluid as the exception developed in the Wilson, White, and Bellis decisions as the measure of the state privilege. We nevertheless would require Miskinis to produce the corporate and partnership documents on another basis.

IV

We would hold that Miskinis may be compelled to produce the documents because the Miskinis corporation and partnership contractually agreed to disclose the documents to the plaintiffs. The agreements constitute limited waivers of the state privilege. The conditional disclosure order, being within those limits, should on that basis be affirmed.

Federal and state constitutional protections may be waived.²² A person may waive some constitutional rights by renouncing them in a contract before the protections accorded by that right may be claimed. For example, a person may, by signing an instrument authorizing the confession of judgment, waive his due process right to notice and hearing before he is deprived of property.²³ A person may waive his privilege against compelled self-incrimination by failing to claim the privilege and voluntarily disclosing incriminating information.²⁴ A person also may waive a privilege by affirmatively renouncing its protection.²⁵

We are of the opinion that a person may contractually bind himself to provide information to someone with whom he is doing business, and thereby waive his constitutional privilege against self-incrimination.²⁶ Miskinis is contractually bound under the terms of the license agreements, which reserved to the plaintiffs the right to inspect the corporate and partnership documents, to disclose the documents to plaintiffs, notwithstanding his constitutional privilege against compelled self-incrimination.²⁷

The disclosure requirements are reasonable, and therefore enforceable, although contained in what might be contracts of adhesion.²⁸ The contracts between the plaintiffs and the Miskinis corporation and partnership entitled the plaintiffs to a certain percentage of the receipts. The receipts depended on the number of tickets sold each day. Aware that persons in defendants’ position could understate their ticket sales and pay plaintiffs less than required, plaintiffs required defendants to keep accurate records, reserved the right to inspect or "visit” those records, and made spot attendance checks. The reservation of such a visitorial privilege is reasonable under the circumstances,²⁹ and is similar to the visitorial privilege held in Wilson to have been reserved by the state.³⁰

V

This Court is not foreclosed from deciding this case on the basis of a contractual waiver of the state privilege by a failure of the plaintiffs to raise the waiver question explicitly. Although the plaintiffs did not argue that Miskinis’ state privilege against compelled self-incrimination was "waived” in the contracts between the plaintiffs and the Miskinis corporation and partnership, they did argue that Miskinis’ duty to disclose the documents now sought is based in part on those contracts. The plaintiffs, relying on the contracts, contended that the Miskinis corporation and partnership had a fiduciary duty to render an accounting because, as the plaintiffs have urged, they were acting as trustees for the plaintiffs. The plaintiffs also maintained that a contractual agreement to disclose documents justifies a court in compelling disclosure where, but for the contractual agreement, disclosure could not be compelled. Plaintiffs further claimed that where a party to a contract expressly agrees to keep and disclose the contents of books and records, he is required to produce such books and records for discovery.

The question whether Miskinis, by entering into the licensing agreements in behalf of the Miskinis corporation and partnership, "waived” his privilege against compulsory self-incrimination in respect to the records that he agreed the Miskinis corporation and partnership would keep and the plaintiffs would be allowed to inspect, is, in our opinion, "necessarily suggested” (GCR 1963, 813.1, 854) in plaintiffs’ "Counter Statement of the Question Involved”. The counterstatement included the statement that appellants had "expressly agreed in the licensing contracts that appellees had the right to examine the books and records of appellants’ theater operations to determine the amount of licensing fees rightfully owed to appellees”. Thus, the counterstatement did not state the question presented solely in terms of the "corporate documents exception” developed by the United States Supreme Court.

VI

In sum, the Fifth Amendment privilege no Ionger protects corporate or partnership' documents from compelled disclosure. This Court has said, however, that the state constitutional privilege protects such documents from compelled disclosure. We would hold that whatever state privilege Miskinis had against being compelled to disclose to the plaintiffs documents of his small, personal, family corporation and partnership was waived in the contracts between the plaintiffs and the Miskinis corporation and partnership.³¹

We need not, in light of the basis of disposition we regard to be appropriate, consider whether the fluid corporate documents exception to the Fifth Amendment privilege should be incorporated in the construction of the state constitution as a limitation on the state privilege. For the foregoing reasons, we concur in the result.

Addendum

Less than two weeks ago, on February 28, 1984, the United States Supreme Court decided United States v Doe, — US —; 104 S Ct 1237; 79 L Ed 2d 552 (1984). In Doe, the Court held that a sole proprietor could not be compelled to produce business records that he had written and continued to possess. In doing so, the United States Supreme Court affirmed the United States Court of Appeals for the Third Circuit, which had held that a sole proprietor could not be compelled to produce his business records when that production would have testimonial aspects that would incriminate him. 1980 Grand Jury, fn 9 supra, pp 334-336.

A majority of the Supreme Court, however, "reversed” the Third Circuit’s alternative holding that the contents of a sole proprietor’s business documents, like a person’s most private diaries, were themselves protected from compelled disclosure by the Fifth Amendment. Doe, supra, 79 L Ed 2d 557-558.

The Third Circuit had noted that, until the Supreme Court decided Fisher v United States, fn 9 supra, the Fifth Amendment had been viewed as protecting from compelled production the contents of a person’s private papers, as distinguished from his business papers. 1980 Grand Jury, fn 9 supra, pp 331-333. The Court of Appeals recognized that in Fisher the Supreme Court "seemingly diverged” from that established view when it said that "the fifth amendment 'applies only when the accused is compelled to make a testimonial communication that is incriminating’. * * * In effect, the focus of the Court had shifted from privacy to the process of compulsion”. 1980 Grand Jury, fn 9 supra, pp 331-332, quoting Fisher, fn 9 supra, p 408.

The Third Circuit nevertheless had continued to adhere to the view "that the fifth amendment privilege applies, even after Fisher, to an individual’s production of his private papers”. Id., p 333. Other courts had similarly read Fisher’s analysis narrowly and held that the Fifth Amendment protects an individual from being compelled to produce private records such as diaries because their contents, rather than the act of producing them, incriminated the individual.³²

Concluding that the contents of a sole proprietor’s business documents were as protected from compelled production by the Fifth Amendment as his private diaries, the Third Circuit had suggested that their production could not be compelled even if the act of producing them did not have incriminating testimonial aspects. Although affirming the judgment of the Third Circuit, a majority of the United States Supreme Court in Doe "reversed” the court’s alternative rationale because that rationale had based the protection of the Fifth Amendment on the private nature of the contents of the documents rather than the incriminating nature of the act of producing them. The majority thus reiterated the Fisher analysis:

"Where the preparation of business records is voluntary, no compulsion is present. * * * Respondent does not contend that he prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents.” Doe, supra, 79 L Ed 2d 559-560.

Justice O’Connor concurred, but wrote separately

"just to make explicit what is implicit in the analysis of [the majority] opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v United States, 116 US 616, 630 (1886), but our decision in Fisher v United States, 425 US 391 (1976), sounded the death-knell for Boyd. * * * [l]ts privacy of papers concept 'had long been a rule searching for a rationale * * *.’ Id., p 409. Today’s decision puts a long-overdue end to that fruitless search.” Doe, supra, 79 L Ed 2d 563-564.

Faced with an opinion of a United States Court of Appeals that had adopted Justice Brennan’s view that the scope of the protections accorded by the Fifth Amendment should be determined in light of the need to protect a person’s privacy, see Fisher, fn 9 supra, pp 414-430 (Brennan, J., concurring in the judgment), a majority of the Supreme Court seems to have gone out of its way in Doe to hold that the content of a document is irrelevant if the compelled act of production does not itself incriminate the individual.³³ In light of the Court’s opinion in Doe, as distinguished from its decision, we believe it is fair to say that only a justice of the United States Supreme Court will have the temerity to continue to suggest that the Fifth Amendment protects a person from being compelled to produce his private diaries when their contents, but not the act of producing them, incriminate that person.

The opinion of the Court in Doe underscores the importance of this Court not adopting the decisions of the United States Supreme Court concerning the Fifth Amendment privilege as the measure of the state privilege without independent consideration by this Court.

Kavanagh and Cavanagh, JJ., concurred with Levin, J.

1 US Const, Am V.

2 Const 1963, art 1, § 17.

3 In affirming the circuit court, the Court of Appeals noted that the order of the circuit court, “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”. The Court of Appeals directed that, "[sjhould 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”. Id. Unpublished opinion per curiam, decided August 26, 1981 (Docket No. 53143).

4 See Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964).

5 A witness may invoke the Fifth Amendment "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory”. Kastigar v United States, 406 US 441, 444; 92 S Ct 1653; 32 L Ed 2d 212 (1972). See also Comment, Plaintiff as Deponent: Invoking the Fifth Amendment, 48 U Chi L Rev 158, 160 (1981).

The Fifth Amendment privilege applies in discovery proceedings in a civil action. See Black Panther Party v Smith, 213 US App DC 67, 94-98; 661 F2d 1243 (1981), vacated 458 US 1118 (1982); SEC v First Financial Group of Texas, Inc, 659 F2d 660, 668 (CA 5, 1981); Baker v Limber, 647 F2d 912, 916-918 (CA 9, 1981); United States v US Currency, 626 F2d 11, 14-18 (CA 6, 1980), cert den 449 US 993 (1980); Wehling v Columbia Broadcasting System, 608 F2d 1084, 1086-1089 (CA 5, 1979); Thomas v United States, 531 F2d 746, 749-750 (CA 5, 1976).

The Federal Rules of Civil Procedure do not provide for the compelled discovery of privileged information. Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of all relevant information "unless the information is privileged”. FR Civ P 26(b)(1). Rule 37, which provides for court-imposed sanctions if a party refuses to permit discovery, applies only to valid Rule 26 discovery orders.

The state constitutional privilege against compelled self-incrimination likewise applies in civil discovery proceedings. See, e.g., State ex rel Washtenaw County Prosecuting Attorney v Western Union Telegraph Co, 336 Mich 84; 57 NW2d 537 (1953). Following the lead of the Federal Rules of Civil Procedure, the General Court Rules limit the scope of discovery to non-privileged matters. See GCR 1963, 302.2(1), 310.1(1), (2).

6 A court will uphold a witness’s claim only when the witness faces criminal sanctions giving rise to "substantial and 'real’, and not merely trifling or imaginary, hazards of incrimination”. United States v Apfelbaum, 445 US 115, 128; 100 S Ct 948; 63 L Ed 2d 250 (1980). A witness therefore may not invoke the Fifth Amendment where subsequent prosecution for acts about which he is being questioned is no longer possible because of the Double Jeopardy Clause or the running of the statute of limitations on prosecutions. Reina v United States, 364 US 507, 513; 81 S Ct 260; 5 L Ed 2d 249 (1960); Little Rock School Dist v Borden, Inc, 632 F2d 700, 704 (CA 8, 1980); In re Folding Carton Antitrust Litigation (Appeal of Brown), 609 F2d 867, 872 (CA 7, 1979) (per curiam); Ellis v United States, 135 US App DC 35, 46, fn 29; 416 F2d 791 (1969); United States v Miranti, 253 F2d 135, 138 (CA 2, 1958); Strachan, Self-Incrimination, Immunity, and Watergate, 56 Tex L Rev 791, 796 (1978). Similarly, the Fifth Amendment's not applicable when an executive pardon or grant of immunity precludes future criminal prosecution of the witness on the basis of the compelled testimony. Kastigar v United States, fn 5 supra, 406 US 441 passim; Brown v Walker, 161 US 591, 598-599; 16 S Ct 644; 40 L Ed 819 (1896).

7 Miskinis argued below that he could be prosecuted for embezzlement under MCL 750.174; MSA 28.371. The circuit court compelled the disclosure of the documents in part because it concluded that "there was no likelihood of criminal proceedings”. A person’s Fifth Amendment privilege is not lost, however, merely because subsequent prosecution is not likely. The inquiry, rather, is two-pronged: (1) whether the witness’s disclosures might indicate his participation in criminal activity, and (2) whether any answers given subject the witness to a possibility of criminal prosecution. See Comment, Prospective Determinations of Derived Use in Civil Proceedings: Upsetting the Immunity Balance, 50 Fordham L Rev 989, 994, fn 23 (1982). Before a court may reject a Fifth Amendment claim and compel testimony, the court must determine that there is not a real possibility of prosecution. See Hoffman v United States, 341 US 479, 486-487; 71 S Ct 814; 95 L Ed 1118 (1951); Rogers v United States, 340 US 367, 374-375; 71 S Ct 438; 95 L Ed 344 (1951); Comment, Prospective Determinations of Derived Use, supra, p 994, fn 23.

8 Absent a finding that the compelled disclosures would not serve as a link in the acquisition of incriminating information, or that there was not a real possibility of criminal prosecution, we assume for the purposes of decision in the instant case that the disclosures sought by the plaintiffs are incriminating and may possibly expose Miskinis to criminal prosecution.

9 The applicability of the Fifth Amendment privilege to documents has been the subject of much comment. See Andresen v Maryland, 427 US 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976); Fisher v United States, 425 US 391, 407-412; 96 S Ct 1569; 48 L Ed 2d 39 (1976); In the Matter of Grand Jury Empanelled March 19, 1980, 680 F2d 327, 329-336 (CA 3, 1982), aff'd in part and rev’d in part sub nom United States v Doe, — US —; 104 S Ct 1237; 79 L Ed 2d 552 (1984); United States v Fox, 721 F2d 32 (CA 2, 1983); McKenna, The Constitutional Protection of Private Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind L J 55 (1977-1978); Note, The Rights of Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v United States, 95 Harv L Rev 683 (1982). As set forth in Fisher, and reiterated in Doe, a person may refuse to produce documents under the Fifth Amendment when production would have testimonial aspects, such as the authentication of the documents, that would be incriminating.

10 See Bellis v United States, 417 US 85; 94 S Ct 2179; 40 L Ed 2d 678 (1974); United States v White, 322 US 694; 64 S Ct 1248; 88 L Ed 1542 (1944); Wilson v United States, 221 US 361; 31 S Ct 538; 55 L Ed 771 (1911).

11 The view that the privilege against self-incrimination should not be held hostage to perceived necessity was expressed in Entick v Carrington, 19 Howell’s State Trials 1029; 95 Eng Rep 807 (KB, 1765), quoted with approval in Boyd v United States, 116 US 616, 629; 6 S Ct 524; 29 L Ed 746 (1886):

"Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. ** * * There is no process against papers in civil causes. It has often been tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instances as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libeling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself * *

This Court has voiced a similar view:

"That 'the end justifies the means’ is a doctrine which has not found lodgment in the archives of this court. The search and seizure * * * was an unauthorized trespass and an invasion of the constitutional rights of this defendant. These rights of the individual in his person and property should be held sacred, and any attempt to fritter them away under the guise of enforcing drastic sumptuary legislation (no matter how beneficial to the people it may be claimed to .be) must meet with the clear and earnest disapproval of the courts.” People v Marxhausen, 204 Mich 559, 567; 171 NW 557 (1919).

The government’s asserted need, as expressed in White, is to regulate the economic activities of organizations, not to imprison members of the organization engaged in wrongdoing. See White, supra, p 700; Communist Party of the United States v United States, 127 US App DC 389, 395, fn 9; 384 F2d 957 (1967) (discussing White’s reference to the regulation of “economic” activity of organizations). That need can be satisfied through a prosecutorial grant of immunity to the person in possession of the documents. Federal prosecutors are empowered to grant immunity under 18 USC 6001-6003. Immunity may be granted in Michigan pursuant to MCL 780.701; MSA 28.1287(101), MCL 767.6; MSA 28.946. Once granted immunity, the person is required to produce the documents because they no longer can be "self-incriminating”. See Kastigar v United States, 406 US 441; 92 S Ct 1653; 32 L Ed 2d 212 (1972) (discussing federal use and derivative use immunity); In re Colacasides, 379 Mich 69; 150 NW2d 1 (1967) (discussing state transactional immunity).

12 See United States v Cohen, 388 F2d 464 (CA 9, 1967) (referring to the organization whose records were being sought as an "impersonal” one); Communist Party of the United States v United States, fn 11 supra, p 396 ("A standard of differentiating between organizations in terms of their 'impersonal’, as distinct from their 'personal’, character is admittedly elusive in meaning and difficult of application. It is clear, however, that the [United States] Supreme Court [in White] was not prepared to say that the privilege was without significance in respect of any and all organizations under any and all circumstances.”); United States v Cogan, 257 F Supp 170, 172-174 (SD NY, 1966) (focusing on the extent and character of the partnership ownership group, the court held that the Fifth Amendment applied to documents of “small and personal” partnerships); 13 Fordham L Rev 238, 239 (1944) ("The instant case [United States v White, fn 10 supra], while novel to the extent that it dealt with the claim of privilege on behalf of a semi-corporate organization, is not a departure from settled principles of constitutional law. This decision is not an innovation * * *. Rather the decision turns upon the application of those principles after a consideration of the relationship which exists between an unincorporated labor union and its members.”) (emphasis added). See also Bellis, fn 10 supra, pp 102-105 (Douglas, J., dissenting) (reviewing the characteristics of the union that had led the Court to conclude it was an "impersonal organization”); United States v Silverstein, 314 F2d 789, 791 (CA 2, 1963) ("The inquiry is * * * essentially a factual one into the nature of the particular entity”. Having examined the relationship between the general partners, the limited partnerships, and the partnership itself, the court concluded that the partnership entity was not a small family business and that its documents therefore were not protected by the privilege.).

13 Historically, partnership documents were often protected by the Fifth Amendment privilege against compelled self-incrimination. See United States v Slutsky, 352 F Supp 1105, 1107 (SD NY, 1972); United States v Cogan, 257 F Supp 170, 172 (SD NY, 1966); In re Subpoena Duces Tecum, 81 F Supp 418, 420-421 (ND Cal, 1948); United States v Brasley, 268 F 59 (WD Pa, 1920); 13 Fordham L Rev 238, 242, fn 33 (1944) ("[T]he draftsman of the Uniform [Partnership] Act[ ] is of the opinion that the Act treats a partnership as a mere aggregate [of its members] and his conclusions seem to be warranted * * *. The courts have sustained the privilege against self-incrimination in favor of a partnership. Internal Revenue Agent v Sullivan, 287 F 138 [WD NY, 1923]”.) See generally cases cited in United States v Silverstein, 314 F2d 789, 790 (CA 2, 1963). But see generally Anno: Right of Partners to Assert Personal Privilege Against Self-Incrimination With Respect to Production of Partnership Books or Records, 17 ALR4th 1039. As Justice Douglas noted in his dissent in Bellis, supra, p 105, the subpoena in Boyd v United States, 116 US 616; 6 S Ct 524; 29 L Ed 746 (1886), which the Supreme Court refused to enforce over a Fifth Amendment claim, "was directed at a partnership and not an individual. As the Government here concedes * * *, both parties and the Court assumed in Boyd that the partnership documents there sought were personal property.” But see Bellis, supra, p 95, fn 2 (refusing to be bound by Boyd). It is unclear why a member of a small law partnership should be treated differently than a sole proprietor or a single practitioner. See Bellis, supra, pp 87-88; 1980 Grand Jury, fn 9 supra, p 330; In re Grand Jury Subpoena, 646 F2d 963, 968 (CA 5, 1981); In re Matter of Grand Jury Empanelled February 14, 1978, 597 F2d 851, 859 (CA 3, 1979). As Justice Douglas observed, "[i]f [the petitioner in Beilis] had been conducting a solo practice, his claim of privilege could not be overridden, as the Government here necessarily conceded. I am unable to perceive why he should be held to have forfeited that constitutional right by joining with two others in a partnership.” Bellis, supra, p 104 (Douglas, J., dissenting). But see generally In re Grand Jury Proceedings United States, 626 F2d 1051, 1054-1059 (CA 1, 1980) (suggesting that, because sole proprietors are indistinguishable from partnerships, the business records of neither should be protected by the privilege).

14 See Bellis, supra, p 100.

15 See Doe, fn 9 supra.

16 See Bellis, supra, pp 87-88 (recognizing that "[t]he privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life”); Wilson v United States, fn 10 supra; United States v Fox, 721 F2d 32 (CA 2, 1983) (holding that the Fifth Amendment privilege applies to sole proprietor’s tax records); United States v Porter, 711 F2d 1397, 1400-1402 (CA 7, 1983) (holding that the Fifth Amendment applies to the production of "business records generated by a sole proprietor taxpayer”); 1980 Grand Jury, fn 9 supra (holding that the Fifth Amendment privilege applies to business records of sole proprietors); United States v Davis, 636 F2d 1028, 1042-1044 (CA 5, 1981). But see Andresen, supra; Fisher, supra; 1980 Grand Jury, fn 9 supra, p 864 (reserving question whether individual can apply privilege to his tax records). See generally United States v Willis, 565 F Supp 1186, 1195-1218 (SD Iowa, 1983).

17 We are not persuaded — applying the rationale developed by the United States Supreme Court — that a family partnership is analytically distinguishable from a small, personal, three-member law partnership. Accordingly, we are of the opinion that the Fifth Amendment privilege does not protect documents of family partnerships. Under the White test family partnerships might have been considered sufficiently personal in nature so that the Fifth Amendment protected documents of such partnerships. Under Bellis, p 95, however, the Fifth Amendment is inapplicable to a partnership which has "an established institutional identity independent of its individual partners”. Because family partnerships may have such an independent identity to the same extent as non-family partnerships, they presumably should be treated no differently. Other courts have refused to distinguish small family partnerships from the small, three-member law firm in Bellis, and have held that partnership documents were not protected by the Fifth Amendment privilege. See United States v Alderson, 646 F2d 421, 422-423 (CA 9, 1981); United States v Hankins, 565 F2d 1344 (CA 5, 1978); United States v Mahady & Mahady, 512 F2d 521, 524 (CA 3, 1975); In re Sentinel Financial Instruments, 553 F Supp 71, 72-76 (SD NY, 1982); In the Matter of September, 1975 Special Grand Jury, 435 F Supp 538, 542-546 (ND Ind, 1977); South Carolina Tax Comm v Reeves, 278 SC 658; 300 SE2d 916, 916-917 (1983); People v Lynch, 83 Ill App 3d 479, 481-485; 404 NE2d 814 (1980).

To be sure, the majority in Bellis, p 101, wrote that "[t]his 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)”. Nevertheless, the Court failed to suggest an analytic reason why a different result might be justified.

In In re Subpoena Duces Tecum, pp 420-421, one of the two cases cited in Bellis, a United States district court held that documents that belonged to a small family partnership were protected by the Fifth Amendment. The court first, noted that, under state law, ownership and possession of partnership documents were both shared and personal. The court held that the test in White, supra, which had extended the "corporate documents” exception to impersonal unincorporated organizations, did not apply to small family partnerships:

"It is only when a group or association of persons is 'so impersonal in the scope of its membership and activities that it cannot * * * represent the purely private or personal interests of its constituents’, that the right is unavailable.

"I am of the opinion that the doctrine of United States v White * * * cannot be extended to the members of a partnership * * * whose only purpose is to conduct the personal business of the partners and to divide and share their profits and losses for their mutual benefit and protection.

"It may be that some partnerships, which have a large number of partners * * * might * * * take on the habiliments of an association or corporation.

"But certainly this small family partnership does not reach such a stature. The nature of this partnership is not of the kind that the partners’ ownership of their own papers in common, is any less personal [than their own individually owned documents].”

In United States v Slutsky, pp 1106-1109, the other case cited in Beilis, two brothers, who had formed a partnership to run a business started by their father, refused to produce the partnership’s business records. The partnership, consisting solely of the two brothers, operated a resort hotel country club. The club had a payroll of approximately $1,000,000, gross receipts of $4,000,000, and buildings worth approximately $4,400,000. It employed several full- and part-time cashiers, a full-time bookkeeper, and a full-time accountant. The two partners and their two sons lived on and personally managed the resort premises. Applying the test enunciated in White, the United States district court held that the partners could not be compelled to produce partnership documents. The court recognized that the size of a partnership was not determinative under that test. "The Supreme Court in White emphasized the nature of the group associated, as well as its size.” Examining the nature of the association of the brothers’ partnership, the court wrote:

"This small family partnership is not so impersonal in the scope of its membership and activities that it cannot represent the purely private or personal interests of its constituents. Some partnerships consisting of a large number of partners, some special or limited as well as general, might be so impersonal in the scope of the membership and activities that the firm does not embody the personal or private interest of the constituent partners. Surely this two-brother family partnership does not reach such status * * *. [The resort] appears to be a personal family business, albeit large and successful. The records sought here, therefore, are not merely 'impassive and impersonal records of business events transacted between the firm and those with whom it dealt’.”

The majority states that in Slutsky "the partnership’s records and papers [were] inseparable from the personal and private papers of its members”. Ante, p 725. The Slutsky opinion emphasized, however, the close relationship between the two brothers and their partnership rather than the connection between the papers of the brothers and the papers of the partnership. The Court in Slutsky, p 1106, stated that it was hearing a motion "to compel the production of business records * * * of a two-man partnership”. (Emphasis added.) The conclusion in Slutsky was that "[t]he partners were intimately involved with the operation of the business, so much so that the district court was convinced that the partnership records were the purely private and personal records of the partner-brothers”. United States v Greenleaf, 546 F2d 123, 128 (CA 5, 1977) (refusing to except family partnerships from the Beilis rule because none of the partners involved were related). Accord, Wilson v California Health Facilities Comm, 110 Cal App 3d 317, 322, fn 4; 167 Cal Rptr 801 (1980), app dis 450 US 1036 (1981). See also United States v Onassis, 125 F Supp 190, 210 (D DC, 1954).

The asserted distinction between small family partnerships and impersonal partnerships is not, as the majority states, merely a restatement of the doctrine that "the papers required to be produced must not be the private and personal papers of the individuals held in a personal capacity”. Ante, p 725. Rather, it is urgent that, in light of the close, personal relationship between family members, the records of a partnership formed by a few close relatives constitute, in fact, the partners’ private documents.

In sum, family partnerships generally are personal, rather than impersonal, business organizations. Under White, therefore, the Fifth Amendment generally would have protected the documents of such a partnership. The new test, promulgated in Beilis, is whether the partnership has an established institutional identity separate from its individual members. We agree with the majority’s conclusion that the Miskinis partnership had a separate institutional identity; consequently, we agree with the majority’s holding that the Fifth Amendment does not apply to the partnership documents now sought.

18 See In re Moser, supra, pp 313-314.

19 Id., p 305.

20 See ante, pp 732-742; Andresen v Maryland, 427 US 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976); Fisher v United States, 425 US 391, 407-412; 96 S Ct 1569; 48 L Ed 2d 39 (1976); United States v Schlansky, 709 F2d 1079, 1082-1084 (CA 6, 1983); 1980 Grand Jury, fn 9 supra, pp 329-336; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 497 (1977); Note, The Aftermath of Fisher, fn 9 supra, pp 684-686.

21 Although the majority suggests that the state privilege should not be interpreted differently than the Fifth Amendment privilege, see ante, p 726, we do not read that suggestion literally. If it were, today’s decision would do more than appear to overrule sub silentio the views expressed in In re Moser. If today’s decision really anchors the state privilege to the Fifth Amendment, the majority overrules a line of decisions holding that the state privilege protects a witness from being compelled to give self-incriminating testimony unless he receives a grant of transactional immunity that precludes his subsequent prosecution for activities about which he testifies under the immunity grant. See, e.g., In re Watson, 293 Mich 263; 291 NW 652 (1940) (only full transactional immunity supplants state privilege). This contrasts with recent interpretations of the Fifth Amendment, which hold that it protects a person only against being compelled to give self-incriminating testimony that can be used, directly or indirectly, against that person. See Kastigar v United States, 406 US 441; 92 S Ct 1653; 32 L Ed 2d 212 (1972).

A witness granted use and derivative use immunity, in contrast with one granted transactional immunity, can be prosecuted for activities about which he was compelled to give self-incriminating testimony under the grant of immunity. Prosecutors are prohibited only from using the testimony, directly or indirectly, in a subsequent criminal prosecution of the witness. See id.; Comment, Prospective Determinations of Derived Use, fn 7 supra. Because a question regarding the kind of immunity necessary to supplant the state privilege is not presented, and Watson has not been overruled, the language of the majority opinion concerning the relationship between the Fifth Amendment and the state privilege against compelled self-incrimination should be read in the context of the issue decided today. •

22 See, e.g., D H Overmyer Co, Inc, of Ohio v Frick Co, 405 US 174, 185-186; 92 S Ct 775; 31 L Ed 2d 124 (1972).

In Michigan, confession of judgment is provided for by statute. MCL 600.2906; MSA 27A.2906.

23 Id., pp 185-187; Bryant v Jefferson Federal Savings & Loan Ass’n, 166 US App DC 178; 509 F2d 511 (1974). See also Sambo’s Restaurants, Inc v Ann Arbor, 663 F2d 686, 690-691 (CA 6, 1981) (discussing contractual waiver of First Amendment, citing D H Overmyer Co, fn 22 supra); Bonner v B-W Utilities, Inc, 452 F Supp 1295, 1303 (WD La, 1978) ("In commercial situations, persons frequently agree contractually to forego rights secured by the Constitution.”); Allied Artists Pictures Corp v Alford, 410 F Supp 1348, 1354 (WD Tenn, 1976) (recognizing validity of waiver by local film exhibitors of First Amendment rights in their agreement with local board providing for board screening).

In Overmyer, supra, p 186, the United States Supreme Court observed that "[t]his is not a case of unequal bargaining power or over-reaching. The * * * agreement, from the start, was not a contract of adhesion.” The relevance of those circumstances to the Court’s decision to sustain the confession of judgment clause as a contractual waiver of due process rights was emphasized by the Court: "Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.” Id., p 188. See also Fuentes v Shevin, 407 US 67, 94-97; 92 S Ct 1983; 32 L Ed 2d 556 (1972).

A United States district court found that the due process right to notice and hearing was not contractually waived where the person who allegedly waived the right by signing a mortgage contract that provided for foreclosure proceedings in the event of default was a consumer rather than a businessperson and the waiver clause "was contained in a paragraph which, like most of the language of the deed of trust, was printed in minute, 8-point type. Defendants have made no showing that [the consumer] was actually aware or made aware of the legal significance of the language.” Turner v Blackburn, 389 F Supp 1250, 1260-1261 (WD NC, 1975). Accord, Ricker v United States, 417 F Supp 133, 139-140 (D Me, 1976). See also Gonzalez v County of Hidalgo, Texas, 489 F2d 1043 (CA 5, 1973) (emphasizing that contract including waiver clause was signed by uneducated migrant worker seeking necessary shelter).

Recognizing the reasonableness of such provisions in commercial transactions, courts have sustained the waiver of the right to notice and hearing contained in a mortgage agreement in cases where the mortgagor alleged "that there was no room * * * to negotiate or bargain about the standard clauses” that contained the alleged waiver. United States v Mountain Village Co, 424 F Supp 822, 825 (D Mass, 1976). See also United States v Wynn, 528 F2d 1048, 1050 (CA 5, 1976) ("The question of the validity of a purported waiver turns on the facts of a particular case. * * * The relative bargaining power of the parties, the borrower’s ability to understand the provisions of the contract, and the clarity of the contractual language itself are some of the factors to be considered in deciding whether the lender may constitutionally forego prior notice and hearing.”). The Court in Overmyer, fn 22 supra, p 188, similarly noted that "a cognovit provision may well serve a proper and useful purpose in the commercial world and at the same time not be vulnerable to constitutional attack.”

In Mountain Village, supra, the court wrote that the mortgagor had extensive experience in real estate and that he therefore "should not be heard to now complain that he did not understand what he was signing.” The court sustained the validity of the waiver even though the contract might have been one of adhesion and there was an alleged inequality of bargaining power, concluding: "Nor can it be said that the government has no right to protect its investments by inclusion of such a provision in its contracts. Without federal backing there would probably have been no loan and no mortgage. Consideration was therefore given for this provision’s inclusion in the mortgage agreement.”

In contrast to the persons who were claimed to have waived their due process rights in Turner and Ricker, Miskinis is a businessperson. The license agreements that provided for the disclosure of the documents of the Miskinis corporation and partnership were between businesspersons involved in a commercial transaction, rather than consumers. The most relevant facts of this case more closely resemble those in Overmyer and Mountain Village than those in Turner, Ricker, and Gonzalez. See also Garner v Tri-State Development Co, 382 F Supp 377, 380-381 (ED Mich, 1974) (distinguishing between alleged waivers of constitutional rights by consumers buying consumer goods and alleged waivers by sophisticated businesspersons involved in commercial property transactions). See generally 16 CJS, Constitutional Law, § 89.

24 "[I]f a witness under compulsion to testify makes disclosure instead of claiming the privilege, the government [ordinarily] has not 'compelled’ him to incriminate himself. 'The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been "compelled” within the meaning of the Amendment’ ”, Garner v United States, 424 US 648, 654-655; 96 S Ct 1178; 47 L Ed 2d 370 (1976), quoting United States v Monia, 317 US 424, 427; 63 S Ct 409; 87 L Ed 376 (1943).

25 See Garner v United States, fn 24 supra, p 654. See also Anno: Self-Incrimination — Loss of Privilege, 47 L Ed 2d 922 (discussing the development of the law regarding waiver of the privilege against compelled self-incrimination).

26 See generally D H Overmyer Co v Frick Co, fn 22 supra (upholding confession of judgment contract clause as a constitutional waiver of due process rights, citing as analogous waivers of the right against compelled self-incrimination); Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984) (upholding constitutionality of contractual arbitration agreement).

27 One could argue that the contractual provision requiring the disclosure of the documents to plaintiffs does not constitute a "waiver” of Miskinis’ privilege against compelled self-incrimination on the ground that a person’s constitutional rights cannot be waived in an agreement between other persons. This argument might be meritorious if this case concerned an employee outside the corporate or partnership management. Miskinis, however, was the representative of the corporation and the partnership who actually dealt with plaintiffs and entered into the license agreements in behalf of the corporation and partnership. As he has argued, the corporation and the partnership were in reality small, personal, family businesses. He cannot claim that he was so uninvolved with the management of those organizations and their ongoing business relationships with plaintiffs that the contractual waivers of the privilege should not apply to him.

One might also argue that the contractual provisions requiring disclosure of the corporate and partnership documents cannot constitute a "waiver” of the state constitutional privilege because the provisions did not evidence an "intentional relinquishment or abandonment of a known right or privilege”. People v Grimmett, 388 Mich 590, 598; 202 NW2d 278 (1972) (following Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 [1938]). Both Grimmett and Johnson were concerned with waivers of constitutional rights in the context of a criminal prosecution. This Court has not applied that test where the issue is the validity of a contractual waiver of a constitutional right. See Morris v Metriyakool, fn 26 supra (upholding constitutionality of contractual arbitration agreement). Cf. Schneckloth v Bustamonte, 412 US 218 passim; 93 S Ct 2041; 36 L Ed 2d 854 (1973) (discussing the standards to be applied to asserted waivers of different constitutional rights in various circumstances); D H Overmyer Co, Inc, of Ohio v Frick Co, fn 22 supra, p 185 (stating that “the standard for waiver in a corporate-property-right case of this kind [may not be] the same standard applicable to waiver in a criminal proceeding”, but assuming arguendo that it was); Watson v Branch County Bank, 380 F Supp 945, 974 (WD Mich, 1974), rev’d without opinion 516 F2d 902 (CA 6, 1975) ("There is no universal standard that must be applied in every situation where an individual foregoes a constitutional right. * * * The Supreme Court has not yet stated the standards which govern the waiver of due process rights in the context of civil actions for the possession of property. * * * The standard to be applied will depend upon the nature of the right being waived and the circumstances under which the alleged waiver was made.”).

28 See Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355, 370-380; 314 NW2d 440 (1982). See also fn 23 supra.

29 It is unclear whether the plaintiffs’ legitimate business needs could be protected only through an unlimited waiver of the state privilege rather than one limited to a disclosure of the documents to the plaintiffs. We would not be prepared to say, therefore, that plaintiffs could have provided by contract for the disclosure of incriminating documents to a prosecutor. Similarly, we would not be prepared to hold that plaintiffs must be allowed to furnish to a prosecutor the documents that Miskinis is compelled to disclose to the plaintiffs. In this case we need not decide whether a full waiver, rather than one limited to disclosure to the plaintiffs, is "reasonable” and therefore enforceable. The circuit court has prohibited the plaintiffs from disclosing except to their counsel and the court information obtained from the documents. The plaintiffs may thus employ the contractual waiver solely to protect their own economic interests, a purpose and result reasonable in light of the business relationship between the parties.

30 Wilson v United States, fn 10 supra, pp 383-384.

31 We agree with the majority that a question not raised should not ordinarily be decided by the Court. If the Court believes that a question not raised would be a more appropriate basis of decision, it should ordinarily require additional briefing in this Court, or, as the majority suggests, remand to the trial court (or the Court of Appeals) for further consideration of that question.

32 See In re Grand Jury Subpoena Duces Tecum Dated April 23, 1981 Witness, 657 F2d 5 (CA 2, 1981), decision on remand, 522 F Supp 977 (SD NY, 1981) (pocket calendars of corporate officer held to be protected from production under Fifth Amendment as officer’s private papers); In re Grand Jury Proceedings, 632 F2d 1033, 1042-1044 (CA 3, 1980) (the court affirmed the district court’s order quashing that portion of a subpoena duces tecum that ordered an individual to produce his private pocket diaries, without determining whether the disclosure would itself have testimonial aspects that would incriminate the individual. The court wrote that the "failure to continue to preserve this right [not to be compelled to produce one’s own personal papers] which we believe basic, would be a step backward in what has been a long and bitterly contested battle to accord rights to persons who stand accused of crime”. Id., p 1044, and fn 23). See also United States v Beattie, 541 F2d 329, 331 (CA 2, 1976) ("We do not read Fisher * * * as detracting from the principle that the Fifth Amendment protects against compulsory production of a paper written by an accused with respect to his own affairs * * * and now in his possession.”); United States v Willis, 565 F Supp 1186, 1196 (SD Iowa, 1983) ("Disallowing Fifth Amendment protection for the contents of business-related records does not require the Court to declare the 'content theory’ of Fifth Amendment privilege dead for all purposes. Fisher’s applicability to nonbusiness, intimate personal papers remains an open question.”). But see United States v Schlansky, 709 F2d 1079, 1082 (CA 6, 1983) ("The central issue is no longer the nature of the materials whose production is compelled. Instead, the question is whether their production involves testimonial communication on the part of the person to whom a summons or subpoena is directed.”).

33 See Doe, supra, 79 L Ed 2d 564 (Marshall, J., with whom Brennan, J., joined, concurring in part and dissenting in part); id., 79 L Ed 2d 564-567 (Stevens, J., concurring in part and dissenting in part).