HARRISBURG (LN) — The Commonwealth Court of Pennsylvania on Wednesday vacated a Franklin County trial court order compelling a single-member limited liability company to produce discovery, holding that the lower court failed to determine whether the production would violate the sole owner’s personal Fifth Amendment privilege against self-incrimination.
The dispute stems from a civil lawsuit filed by the Commonwealth of Pennsylvania against Sherry Tenney and her business, Tenney’s Fiber Farm, LLC. The state alleged the defendants violated consumer protection laws by advertising fiber art supplies on platforms like Etsy and Facebook but failing to deliver merchandise or issue refunds.
During discovery, Tenney and the company asserted a blanket Fifth Amendment privilege in response to interrogatories and document requests. The trial court granted the Commonwealth’s motion to strike, ordering the company to provide full responses because artificial entities lack Fifth Amendment protections. The court also ordered Tenney to assert any individual privilege with specificity and justification.
Tenney appealed, arguing that because she is the sole member and records custodian, compelling the company to produce documents would necessarily force her to perform a testimonial act of production that could incriminate her.
The Commonwealth Court agreed that the appeal was properly before it regarding the company, as the order threatened to irreparably lose the claimed privilege. However, the court quashed the appeal as to Tenney individually, finding the trial court had not yet ruled on the validity of her specific privilege assertions.
On the merits, the panel vacated the order as to the company, noting the trial court resolved the issue categorically without addressing Tenney’s specific argument. The court noted that while the company itself has no Fifth Amendment privilege, an individual may assert a personal privilege if the act of producing documents would implicitly communicate testimonial information, such as the existence or authenticity of the records.
"Because the trial court did not address that preserved theory, appellate review is hindered," Judge Lori A. Dumas wrote for the panel.
The Commonwealth Court remanded the case for the trial court to determine if compelling production would implicate Tenney’s personal rights. The trial court must now analyze whether the act of production owner would constitute protected testimonial communication.