In re Subpoena Duces Tecum, 6895.

• Decision Date: 29 November 1948
• Docket Number: No. 6895.,6895.
• Citation: 81 F. Supp. 418
• Court: U.S. District Court — Northern District of California
• Parties: In re SUBPOENA DUCES TECUM.

81 F. Supp. 418

In re SUBPOENA DUCES TECUM.

No. 6895.

United States District Court N. D. California, S. D.

November 29, 1948.

J. Thaddeus Cline, of San Francisco, Cal., for Lester O. Casperson, Russell K. Casperson, Harold O. Casperson, Miriam C. Becker, Joseph S. Wetten, and Elmer G. Casperson.

Wallace Howland, Sp. Asst. to Atty. Gen., Antitrust Division, Department of Justice, for respondent.

GOODMAN, District Judge.

On October 29, 1948, the Antitrust Division of the Department of Justice caused a subpoena duces tecum to be issued, returnable on November 10, 1948, before the Grand Jury of this District, directed to "Elmer Casperson, a partner in O. Casperson & Sons, 340 Ninth Street, San Francisco, California" and requiring him to bring with him certain specified records and communications "exchanged by and passing between the addressee of this subpoena and employees and agents thereof" and certain designated persons and organizations concerning certain designated subjects. The return date of the subpoena has been postponed by order of Court.

On November 15, 1948, Lester O. Casperson, Russell K. Casperson, Harold O. Casperson, Miriam C. Becker, Joseph S. Metten and Elmer G. Casperson, alleging themselves to be copartners doing business as "O. Casperson & Sons," moved this Court to quash the subpoena. The ground of the motion is that the documents described in the subpoena constitute the private papers and property of each of the partners and that their production will be violative of the movants' rights under the Fourth Amendment to the Constitution. It is also claimed that the movants' protection against self incrimination, Amendment V, will be violated.

It is obvious, and it was not denied at the hearing upon the motion, that the subpoena, directed as it was to one of the partners of a partnership, is an adroit maneuver of the Antitrust Division to avoid subpoenaing all of the partners and thus to close the door to their possible claim to immunity, 15 U.S.C.A. § 32,¹ and against self incrimination. Constitution Amendment V. The partner subpoenaed can of course personally claim the benefit of 15 U.S.C.A. § 32 before the Grand Jury. United States v. Lay Fish Co., D.C. 13 F.2d 136. But the partners not subpoenaed will not have the opportunity to personally claim immunity as to the records if they are produced by the subpoenaed partner. And if the records are the private property of the other partners as well as of the subpoenaed partner, then their right under the Fourth Amendment "to be secure in their * * * papers, and effects, against unreasonable searches and seizures" may be violated.

There is also no doubt that the Antitrust Division seeks the information contained in the subpoenaed records as evidence against the members of the partnership. If the evidence were sought only as against others than the partners, the Antitrust Division would indeed not have hesitated to direct the subpoena to all the partners. In that event all of the movants would have the benefit of 15 U.S.C.A. § 32 and the Fourth and Fifth Amendments. It is clear therefore that the prosecuting officers are seeking from the subpoenaed partner evidence against all of the movants.

I am satisfied that movants, other than Elmer Casperson, are ineligible to claim either immunity under 15 U.S.C.A. § 32 or the privilege against self incrimination guaranteed by the Fifth Amendment. Such claims are the personal privileges of a person, who, under compulsion, is required to be a witness against himself in a criminal case. Hale v. Henkel, supra., United States v. White, 332 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202. They may be advantaged only by the person who gives or is to give testimony or produce documents. Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919, 47 L.R.A.,N.S., 263.

Whether the subpoena to Elmer Casperson works an unreasonable search or seizure of private papers of the other movants contrary to the Fourth Amendment, presents a different and more difficult problem. Its solution depends upon the true nature of the partnership relation or status.

Since the oft quoted case of Hale v. Henkel, supra, was decided in 1906, organizations such as corporations have been held to be ineligible to claim the benefits of immunity or of the Fourth and Fifth Amendments. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558.

In United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202 such ineligibility was extended to unincorporated organizations such as labor unions. The rationale of Hale v. Henkel, supra, and the cases which follow it, is that since Constitutional and immunity privileges are purely personal, they cannot be claimed by a corporation or association which has "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." United States v. White, supra, 322 U.S. at page 701, 64 S.Ct. at page 1252.

Do the...