Opinion
April 1, 1971
Appeal from the Erie Special Term.
Present — Marsh, J.P., Gabrielli, Moule, Cardamone and Henry, JJ.
Order unanimously modified in accordance with the memorandum herein and, as modified, affirmed, without costs. Memorandum: Plaintiff seeks to recover money allegedly lost by it through defendants' check kiting scheme. It claims it honored checks of Ohio Sheeting and Erecting Corporation (Ohio) drawn on its bank account with plaintiff and that checks signed by defendant Skinitis, allegedly an officer of Ohio and C.S. Louis Co., Inc. (Louis), on a South Carolina bank and deposited to Ohio's account with the plaintiff were uncollectible. Plaintiff served a notice to produce bank records of all defendants, and defendants moved for a protective order. Plaintiff cross-moved for an order compelling discovery and inspection, which was granted. Defendants' attorney in an affidavit claimed that the material sought from Irene Skinitis was privileged and that production of it would violate her right against self incrimination. However, it does not appear that she has personally claimed the privilege. The privilege against self incrimination is not available to corporate defendants ( Wilson v. United States, 221 U.S. 361, 382), and an officer of a corporation cannot claim the privilege as to records held in a representative capacity, even though they might incriminate him personally. ( Wilson v. United States, supra.) However, the privilege does apply to personal records of the officer. ( Boyd v. United States, 116 U.S. 616.) We cannot determine on this record whether the Skinitis bank accounts are personal records or were used for corporate purposes. All bank records should be produced at Special Term where the individual defendant may, if she wishes, personally claim the privilege against self incrimination and a determination can be made whether the records are corporate records, records held by her in a representative capacity or her own personal records.