The opinion
MURPHY, J.,
dissenting.
If the subpoena that the majority would enforce had been issued by the State’s Attorney for Howard County pursuant to a Grand Jury investigation, it is clear that—unless compliance with the subpoena was ordered by the Circuit Court pursuant to § 9-123 of the Courts and Judicial Proceedings Article—the Petitioner could refuse to comply with the subpoena on the basis of his privilege against self-incrimination because § 7-104 of the Criminal Law Article, in pertinent part, provides:
(c) Possessing stolen personal property.—(1) A person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen, if the person:
(i) intends to deprive the owner of the property;
*529 (ii) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owners of the property; or
(iii) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property.
I therefore dissent from the holding that—in the replevin action asserted by the Respondent against Mr. Silfen, one of the Respondent’s former employees who is alleged to have stolen documents after his employment was terminated—the Petitioner is not entitled to assert the act of production privilege with respect to documents that the Petitioner (in the words of the Respondent’s motion) “does not own and has no right to possess.” Nothing in Braswell v. United States, 487 U.S. 99 , 108 S.Ct. 2284 , 101 L.Ed.2d 98 (1988), prohibits a former employee from asserting a Fifth Amendment privilege when his or her former employer moves for a court order compelling the former employee to produce documents that, according to the former employer, have been “stolen” from the former employer. 1
In U.S. v. Doe (In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999), 191 F.3d 173 (2d Cir. 1999), while affirming the denial of the government’s motion to compel a former corporate employee to produce documents belonging to his former employer, the United States Court of Appeals for the Second Circuit stated:
After full briefing and oral argument, [Hon. John E. Sprizzo of the United States District Court for the Southern District *530 of New York] denied the government’s motion to compel in a ruling issued from the bench. The district court relied on our pre-Braswell decision, In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 and June 22, 1983, 722 F.2d 981, 986-87 (2d Cir.1983) [hereinafter] (“Saxon Industries”), and the Fifth Amendment act of production doctrine established by the Supreme Court in cases such as Fisher and United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984), to hold that “the act of testimonial [production] on behalf of a person who is no longer with the corporation is self-incrimination in its classic sense of the word, and the Constitution does not permit it.” Judge Sprizzo stated further that the “question of testimonial incrimination is at its height when [the document] is produced by a person who is no longer employed by the corporation, because there is an inference that [he] may have stolen [it].”
Id. at 176. (Emphasis supplied). While rejecting the argument that Braswell applied to former employees, the Doe Court’s majority stated:
Applicability of Braswell in Context of Former Employees
The question presented by this appeal ... is whether former employees of a corporation, who have corporate documents in their possession, may claim an act of production privilege notwithstanding Braswell . To hold, as the government suggests, that Braswell governs this appeal would require an extension of Braswell to the former employee based upon a conception that the former corporate employee who has corporate records holds them solely in a representative capacity, and acts as the corporation’s agent when he or she produces them, even though the employment relationship has ended. Such a holding would also require us to overrule our decision in Saxon Industries, which is otherwise on point.
Saxon Industries, 722 F.2d 981 (2d Cir.1983), involved an appeal by a former corporate officer who was held in civil contempt for his refusal to comply with a grand jury subpoena duces tecum commanding production of corporate *531 records retained by him after he left the corporation. Though decided before Braswell , the Saxon Industries panel anticipated its holding, stating that “if the witness were still a [corporate] officer or employee he would normally be obligated as a representative of the company to produce its documents, regardless of whether they contained information incriminating him.” Id. at 986 . We held, however, that “once the officer leaves the company’s employ, ... he no longer acts as a corporate representative but functions in an individual capacity in his possession of corporate records.” Id at 986-87. Thus, in Saxon Industries , we remanded the case to the district court to determine “whether appellant’s production of the [corporate] documents, regardless of their contents, might have [a] self-incriminatory effect.” Id at 987. We further noted that should the district court determine that the production would prove incriminatory, “the government could either by stipulation or by obtaining a grant of immunity pursuant to 18 U.S.C. §§ 6002-6003 , immunize the act of production; such immunity would preserve the appellant’s Fifth Amendment rights with respect to his conduct in producing the documents, Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972).” 722 F.2d at 988 .
We disagree that Braswell affects our holding in Saxon Industries and hold that the latter remains good law. The rule in Braswell was predicated on the rationale that corporate custodians hold and produce documents only in a representational capacity and that when a corporate custodian produces subpoenaed corporate records, at bottom, “the corporation produces the documents subpoenaed.” Braswell, 487 U.S. at 118 , 108 S.Ct. 2284 . It follows, as we noted in Saxon Industries , that once the agency relationship terminates, the former employee is no longer an agent of the corporation and is not a custodian of the corporate records. When such an individual produces records in his possession he cannot be acting in anything other than his *532 personal capacity. In no sense can it be said, as Braswell requires, that “the corporation produced the records subpoenaed.” Nothing in Braswell convinces us otherwise, and neither the government nor the dissent has directed us to any authority for the proposition that the agency relationship between an employee and an employer somehow continues after the employment relationship ends.
Indeed, this is the crux of our difference with the dissent. In the absence of legal authority to the effect that a former employee remains an agent of the corporation, or any evidence that the corporation and the individual intended to maintain an agency relationship, the foundation upon which Braswell rests—that one who is currently employed by the corporation holds documents as an agent in a custodial capacity so that it is actually the corporation that is producing the records—is removed.
Id. at 179-181 . (Emphasis supplied). I agree with that analysis. In light of the assertions set forth in the Respondent’s pleadings and motions, the above quoted portion of Judge Sprizzo’s ruling has special relevance in the case at bar.
Moreover, because the case at bar does not involve a subpoena issued by a prosecutor, I also disagree with the majority’s conclusion that, “should [the Petitioner] ever face criminal prosecution in connection with his possession of the corporate documents, the government would be foreclosed from making evidentiary use in that criminal case of [the Petitioner’s] ‘individual act’ of production.” During a grand jury investigation or a criminal trial, if (1) the court determines that an act of production would prove incriminating, and (2) the prosecution takes the steps that are required to immunize the act of production, the producer’s Fifth Amendment rights will be preserved. As the State is not a party in the case at bar, I am not persuaded that this Court’s ruling in a replevin case would necessarily foreclose a Maryland prosecutor from subsequently making evidentiary use of the Petitioner’s production. I am persuaded, however, that this Court does not have the authority to foreclose a Pennsylvania prosecutor or a federal prosecutor from doing so. The order *533 granting the Respondent’s motion to compel should be reversed.
. Because of the Respondent’s allegations—in the complaint it filed against Mr. Silfen, and in its motion to compel the Petitioner’s production of documents—this Court should not affirm the ruling of the Circuit Court by indulging in the fiction that the Petitioner has possession of the Respondent’s documents in a "representative capacity” on the ground that another former employee “removed them in an unauthorized fashion from [the Respondent’s] corporate premises, records, files or depositories.” In Re Grand Jury Investigation, Special Grand Jury No. II, 600 F.Supp. 436, 438 (D.Md.1984). In my opinion, this Court should squarely hold that the "receiver” of stolen corporate records does not possess those records in a "representative capacity.”