Fighting Fifth Amendment Claims: Can a Receiver Obtain Business Records When a Fifth Amendment Right Against Self-Incrimination Is Asserted?

By Richard Weissman

Richard Weissman is a shareholder of Richard Weissman, Inc., APC, and serves as a federal and state court appointed receiver, provisional director, and partition referee, covering all fields of civil practice and regulatory enforcement throughout the United States. He can be reached at rweissman@rwreceiver.com.

Assume a receiver has just been appointed over Acme Corporation in a civil enforcement action brought by a state or federal regulatory agency. The order of appointment authorizes the receiver to take possession and control of all of Acme’s assets, its ongoing business enterprise and all its business and financial records (expansively defined to include documents, computer hardware, software and all computer based records, floppy disks, CD-ROMs, "smart" cell phones, computer passwords and access codes, etc.). The receiver then serves the order on Acme’s president, Mr. Smith, and immediate turnover of and access to the financial records.

Mr. Smith refuses, and the attorney for both Mr. Smith and Acme states that her clients are exercising their respective Constitutional rights against self-incrimination under the Fifth Amendment, which rights (it is asserted) preclude the receiver’s obtaining Acme’s records. The attorney also discloses that some of Acme’s records are now in her possession (having been delivered by Mr. Smith). She asserts an attorney-client privilege in refusing to turn over these documents.