Most generous interpretation I’ve seen is it could be a delaying/negotiation tactic that will be eventually resolved but given how apparently unusual it is to use it for a subpoena of documents I’m leaning more to the Oh S conclusion for now.
@arch stanton saw this in another article that may help clarify
Former Boeing official subpoenaed in 737 MAX probe won’t turn over documents, citing Fifth Amendment protection
Mark Forkner, Boeing's former chief technical pilot on the MAX project, invoked the privilege in response to a grand jury subpoena issued by U.S. Justice Department prosecutors looking into the design and certification of the plane.
www.seattletimes.com
But there are exceptions that allow the privilege to be asserted where “the mere act of producing the document” may be seen as an incriminating act, Feldman said. Paul Rothstein, a Georgetown University law professor, said documents may show a person “has them, knows about them or admits they exist.” “This information can often be somewhat incriminating of that person and thus covered by his Fifth Amendment privilege against self-incrimination,” Rothstein said.
Some courts have held that broad document requests require the person to “use his or her mental processes to interpret and respond to the subpoena, and the production itself could be viewed as testimonial,” said Peter Joy, a Washington University law professor.
In Forkner’s case, Feldman said, it could turn on the type of documents. “Are these the employee’s personal documents? His diary or personal emails? Or are they Boeing’s documents?” Forkner could ask for immunity from use of the information in the documents, or prosecutors could offer it, the experts said.
“Such immunity means the revealed information cannot be used in any way in any investigation of him or any criminal prosecution of him,” Rothstein said, noting that it is not a blanket immunity from investigation or prosecution based on evidence obtained elsewhere. It is “just an immunity from use of this particular evidence or information,” he said.
But prosecutors can independently seek other evidence, Feldman said. He said if there is a plausible assertion of the privilege, it would “not be unusual to see the government offer” of immunity. “It could just be the kind of waltz you often see in cases like this, by which individuals who are concerned that they may get swept up in a criminal matter try and obtain some protection and assurances to lower their risk,” Feldman said. “Or it could be much more significant both for the individual or the company.”
