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Courts have divided over whether a former employee of a corporation can be forced to produce documents in response to a subpoena when the production of the documents would implicate the employee in a crime. This question turns on whether a former corporate employee or officer maintains a representative relationship with the corporation following his employment, or if his ability to represent the corporation terminates with his employment. While it is well-established that the government may not compel an individual to give testimony that would be self-incriminating, the Fifth Amendment privilege against self-incrimination typically does not apply to the contents of business documents that the government requests through a subpoena. 1 For example, the government may subpoena business records that a defendant created for his own benefit that reveal incriminating information. In contrast, a prosecutor could not call that defendant before a grand jury and force him to testify against himself regarding those documents. This seemingly artificial distinction under the Fifth Amendment is based on the interpretation of the word "compel."2 Because the government did not compel the defendant to create the business records, it does not "compel" the defendant to "testify" against himself. However, when the government forces the defendant to give oral testimony as to the information contained in those records, such testimony is considered compelled and thus protected by the Fifth Amendment.'

Former Corporate Officers and Employees in the Context of the Collective Entity and Act of Production Doctrines