Herman v. Galvin, No. 98-12534-MLW.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Wolf
• Citation: 40 F.Supp.2d 27
• Decision Date: 29 January 1999
• Docket Number: No. 98-12534-MLW.
• Parties: Alexis M. HERMAN, Secretary of Labor, Petitioner, v. Vincent GALVIN, Patrick Galvin, and G.W. Construction, Respondents.

40 F.Supp.2d 27 Alexis M. HERMAN, Secretary of Labor, Petitioner,
v.
Vincent GALVIN, Patrick Galvin, and G.W. Construction, Respondents. No. 98-12534-MLW. United States District Court, D. Massachusetts. January 29, 1999.

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Christine T. Eskilson, U.S. Department of Labor, Office of the Solicitor, Boston, MA, for Alexis M. Herman, Secretary of labor, United States, Department of Labor, petitioner.

Richard D. Wayne, Hinckley, Allen & Snyder, Boston, MA, for Vincent Galvin, respondents.

MEMORANDUM AND ORDER

WOLF, District Judge.

On January 15, 1999, the court conducted a hearing on plaintiff's motion to, among other things, hold G.W. Construction in civil contempt for failing to produce records subject to a December 4, 1998 subpoena duces tecum issued by the Occupational Safety and Health Administration ("OSHA"). The motion requires the court to determine whether G.W. Construction is a collective entity, which would not have a Fifth Amendment privilege to assert as a valid reason to resist production of the subpoenaed records, or a sole proprietorship which would have a Fifth Amendment privilege. Compare, e.g., Braswell v. United States, 487 U.S. 99, 109, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) (holding that a corporation or other collective entity may not resist a subpoena for its records on Fifth Amendment grounds) with United States v. Doe, 465 U.S. 605, 612, 617, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) (holding that the contents of business records of a sole proprietorship are not privileged, but the act of producing such records is testimonial and can not be compelled without a statutory grant of use immunity).

The burden of proving the existence of a valid Fifth Amendment privilege is on G.W. Construction. In re Grand Jury Subpoena, 973 F.2d 45, 50 (1st Cir. 1992). In this case, however, providing the information necessary to satisfy this burden in an open, adversary proceeding would have involved the risk of G.W. Construction disclosing to the government information that would be privileged if G.W. Construction is a sole proprietorship rather than a collective entity. Thus, with the agreement of OSHA, the court conducted an in camera hearing to afford G.W. Construction an opportunity to attempt to prove that it is a sole proprietorship and,

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therefore, has a Fifth Amendment privilege. See In re Brogna, 589 F.2d 24, 28 n. 5 (1st Cir.1978) ("A proper use for an in camera hearing is to allow a witness to impart sufficient facts in confidence to the judge to verify the privilege claim where external circumstances do not afford adequate verification."); United States v. Fricke, 684 F.2d 1126, 1131 (5th Cir.1982).

On the present record, the court finds, without prejudice to possible reconsideration if OSHA produces additional evidence, that G.W. Construction is a sole proprietorship and, therefore, has a Fifth Amendment privilege. "A sole proprietorship is a business form in which an individual —rather than, for example, a partnership or corporation — owns the business." In re San Juan Dupont Plaza Hotel Fire Litigation, 45 F.3d 569, 573 (1st Cir.1995) (citing Black's Law Dictionary 1392 (6th ed.1990), which defines a "sole proprietorship" as: "A form of business in which one person owns all the assets of the business in contrast to a partnership, trust or corporation. The sole proprietor is solely liable for all the debts of the business.").

A business may be a sole proprietorship even though its name indicates that it is a collective entity. See, e.g., United States v. Jobin, 535 F.2d 154, 155 n. 1. (1st Cir.1976) ("Jobin Associates, Inc., despite its name, was a sole proprietorship"); Greenstein v. Flatley, 19 Mass. App.Ct. 351, 356, 474 N.E.2d 1130 (1985) (Thomas Flatley did business as The Flatley Company); United States v. London, 66 F.3d 1227,...