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Jung Chul Park v. Cangen Corporation, No. 152, September Term 2008 Constitutional Law--Fifth Amendment privilege against compelled self-incrimination--act of production--subpoena duces tecum. A former corporate employee holds corporate documents, not in a personal capacity, but as a representative of the corporation, even if he possesses them unlawfully. By operation of the collective entity doctrine, see Braswell v. United States, 487 U.S. 99 (1988); Bellis v. United States, 417 U.S. 85 (1974), the former employee has no Fifth Amendment privilege to resist a subpoena compelling the production of corporate documents in his possession, even though the act of production may prove personally incriminating.

Circuit Court for Howard County No. 13-C-08-71718

IN THE COURT OF APPEALS OF MARYLAND No. 152 September Term, 2008

JUNG CHUL PARK v. CANGEN CORPORATION

Bell, C.J., Harrell Battaglia Greene Murphy Adkins Barbera, JJ.

Opinion by Barbera, J. Murphy, J., dissents.

Filed: October 27, 2010

This case involves the privilege against compelled self-incrimination, based on the command of the Fifth Amendment that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. CONST. amend. V. We are asked to determine whether a former employee of a corporation is entitled to invoke the privilege in response to a subpoena duces tecum commanding him to produce corporate documents. We hold, by application of the "collective entity doctrine," see, e.g., Braswell v. United States, 487 U.S. 99, 104-05 (1988), that the former corporate employee is not entitled to invoke the privilege. I. This appeal has its genesis in a replevin action filed by Appellee Cangen Corporation ("Cangen"), in the Court of Common Pleas of Montgomery County, Pennsylvania. According to counsel's description, Cangen "is a biotech[nology] company located in Baltimore, but it does have offices and, significant, connections to Korea." In the replevin action, Cangen sued Richard A. Silfen, the company's former president and chief executive officer, whom Cangen fired in 2006. Cangen sought to replevy "thousands of [Cangen's] documents, records, information, and materials, in electronic form or otherwise," which Mr. Silfen allegedly "stole after his employment with Cangen was terminated." Cangen stated at a later hearing before the Circuit Court for Howard County, Maryland, that "some of these documents were . . . given to journalists and financial concerns in Korea, which is where [Cangen] gets a lot of its financing, we believe in an effort to discredit the company." As part of the replevin action, Cangen filed in the Montgomery County, Pennsylvania Court of Common Pleas a motion for issuance of a commission for a subpoena for a

deposition of Appellant, Dr. Jung Chul Park, a former employee of Cangen who currently resides in Howard County, Maryland. The Court of Common Pleas granted Cangen's motion and directed the Clerk of the Circuit Court for Howard County to issue the subpoena. Pursuant to the Maryland Uniform Interstate Depositions and Discovery Act, Maryland Code (1973, 2006 Repl. Vol.),

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