dissenting:
It has been settled for more than a decade that a custodian of corporate records may not “resist a subpoena for such records on the ground that the act of production would incriminate him in violation of the Fifth Amendment.” Braswell v. United States, 487 U.S. 99, 100, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988). Relying on our pre-Braswell decision in In re Grand Jury Subpoenas Duces Tecum Dated June 13, 1983 and June 22, 1983, 722 F.2d 981 (2d Cir.1983) (“Saxon Industries ”), the majority today excepts from Braswell’s reach any former corporate agent who possesses corporate documents that he retained after leaving the corporation’s employ. The majority does so despite the fact that all three of the former employees resisting the subpoenas in this case left the corporation after the corporation had been served with its subpoenas, and despite the fact that two of the former employees had signed severance agreements in which they accepted a continuing duty to assist the corporation in any investigation conducted by or involving the corporation.
The majority’s exception to the rule of Braswell finds no support in Supreme Court precedent and it creates a powerful incentive for corporate employees and other agents to abscond with subpoenaed records in order to avoid judicial process. Accordingly, I dissent.
I.
As the majority opinion discusses at some length, a series of Supreme Court cases, beginning with Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), and Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), ruled that a person who holds documents in his capacity as an agent of a “collective entity” — such as a corporation or partnership — may not claim that the Fifth Amendment prohibits compulsory production of those documents. In Wheeler v. United States, 226 U.S. 478, 489-90, 33 S.Ct. 158, 57 L.Ed. 309 (1913), and Grant v. United States, 227 U.S. 74, 80, 33 S.Ct. 190, 57 L.Ed. 423 (1913), the Supreme Court made it clear that the “collective entity” doctrine applies not only to current agents of the entity, but also to former agents who have retained documents that they initially held in their capacity as custodian and agent.1 The Court explained that “the privilege of individuals against self-incrimination in the production of their own books and papers” does not prevent “the compulsory production of the books of a corporation with which they happen to be or have been associated.” Wheeler, 226 U.S. at 490, 33 S.Ct. 158 (emphasis added). Despite the fact that the corporation in that case had already gone out of business and despite the fact that “the books of the company had before the dissolution been made over” to the subpoenaed custodians, “this did not change the- essential character of the books and papers or make them any more privileged in the investigation of crime than they were before.” Id.
These “collective entity” cases had all involved instances in which an agent or former agent sought to invoke the Fifth Amendment privilege against documents that purportedly contained incriminating *185information. For this reason, the scope of the “collective entity” rule was made uncertain for a time when the Supreme Court decided in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), that an individual may assert an “act of production” privilege where the very act of producing the requested documents would tend to incriminate that individual. The facts in Fisher did not directly implicate the “collective entity” rule, as there was no suggestion that the documents at issue there were held by someone as a current or former agent of an entity. As a result, it was not immediately clear whether a custodian would be entitled, after Fisher, to invoke the “act of production” privilege to trump the “collective entity” rule. Compare In re Grand Jury Proceedings, 771 F.2d 143, 147-48 (6th Cir.1985) (en banc) (refusing to recognize an “act of production” privilege with respect to corporate documents), with United States v. Antonio J. Sancetta, M.D., P.C., 788 F.2d 67, 74-75 (2d Cir.1986) (recognizing that a representative of a collective entity may assert that the “act of production” incriminates him and therefore is privileged).
In Braswell, the Supreme Court responded to this uncertainty by disagreeing with the proposition that Fisher “rendered the collective entity rule obsolete.” Braswell, 487 U.S. at 109, 108 S.Ct. 2284. The Court noted that it could have been said in prior collective entity cases — where the subpoena had been directed to a custodian, demanding that he produce records in his custody — that “the custodian’s act of producing the documents would ‘tacitly admi[t] their existence and their location in the hands of their possessor.’ ” Id. at 111, 108 S.Ct. 2284 (quoting Fisher, 425 U.S. at 411-12, 96 S.Ct. 1569 (alteration in Braswell)). While the Braswell Court conceded that these earlier collective entity cases had not explicitly considered (á la Fisher) the testimonial consequences of the act of production itself, the Court stated that it did “not think such a focus would have affected the results reached.” Id. The Court explained that the collective entity rule was extensive enough to override the “act of production” privilege because “ ‘[i]t is well settled that no privilege can be claimed by the custodian of corporate records....’” Id. (quoting Bellis v. United States, 417 U.S. 85, 100, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974)) (emphasis added; ellipsis in Braswell).
The majority today insists on limiting Braswell to its facts by treating that decision as having established a rule that applies only to current agents of an entity. See ante at 179 stating that the Supreme Court in Braswell (“applied the collective entity doctrine, introduced by Hale and developed in Wilson and its progeny, to preclude the claim of an act of production privilege by a current corporate employee ” (emphasis added)). But Braswell itself purports to apply the collective entity rule, in full, to assertions of the “act of production” privilege. See 487 U.S. at 109-10, 111, 108 S.Ct. 2284. And, as I have discussed above, the collective entity rule has long applied to current and former agents alike, continuing to treat corporate documents as such, even when they remain in the custody of an erstwhile corporate agent whose employment with the corporation has terminated. See, e.g., Wheeler, 226 U.S. at 490, 33 S.Ct. 158.2
I recognize that our pre-Braswell decision in Saxon Industries would have *186drawn precisely the distinction embraced by the majority in this case, and thereby given former (but not current) agents the benefit of the “act of production” privilege. In my view, however, the distinction drawn in Saxon Industries runs contrary to the Supreme Court’s rule in Braswell. Because we obviously must apply Supreme Court precedent, even when it conflicts with our own, earlier authority, I believe we are bound to recognize that Saxon Industries is no longer good law.
Even if I believed that Saxon Industries retained its vitality, I would disagree with the majority’s refusal to distinguish it here. In the instant case, John Doe I, John Doe II, and John Doe III were all in the corporation’s employ at the time the initial subpoena was served on the corporation. John Doe I and John Doe II were still employed by the corporation at the time it was served with two subsequent subpoenas, which were broader in scope.3 By contrast, in Saxon Industries, it appears that the first subpoena issued in the case was the one issued to the witness-appellant, who had ceased to work for the corporation approximately one year earlier. See Saxon Industries, 722 F.2d at 982-83. . Thus, unlike the instant case, there was little reason there to fear that the former agent had left the corporation’s employ specifically to conceal evidence relating to an ongoing investigation.
Nor is there any indication from the Saxon Industries decision that the employee there had signed an agreement under which he assumed any post-employment obligations with respect to investigations. Significantly, in the instant case, John Doe II and John Doe III signed severance agreements requiring them to assist the corporation in any investigation. To be sure, as the majority observes, the severance agreements do not purport to waive the employees’ Fifth Amendment rights. See ante at 180. In light of the agreements, however, it is fair to argue that the former employees continued to “act[ ] as corporate representative[s],” Saxon Industries, 722 F.2d at 986-87, at least for the limited purposes of holding any responsive documents— which are, concededly, corporate documents — and of assisting in the investigation. So characterized, they would not be entitled to assert the “act of production” privilege, even under Saxon Industries.4
II.
Rather than recognizing our decision in Saxon Industries to have been overruled *187by the Supreme Court, the majority opinion gives Saxon Industries an overly expansive reading. Not only does the majority make eligible for the “act of production” privilege — -in the teeth of the Braswell rule — those former employees or agents who have retained corporate documents, but it extends this eligibility even to those agents who depart in the midst of an investigation and sign severance agreements pledging that they will cooperate with any investigation involving the corporation.
The majority apparently takes comfort from the fact that “Saxon Industries has been the law of this circuit since 1983, and Braswell was decided in 1988”; accordingly, the majority reassures us that “[t]he incentives [which are of concern to the Government] have been in place for over a decade, with few reported incidents of employees stealing corporate documents and leaving a company’s employ before or shortly after being served with a subpoena to produce such documents.” Ante at 182. But that should hardly come as a surprise. First of all, even if Braswell, which involved a current employee, did not explicitly overrule Saxon Industries, the Supreme Court case at least raised serious questions about whether our decision remained good law. Cf. In re Grand Jury Subpoena Dated November 12, 1991, 957 F.2d 807, 811-12 (11th Cir.1992) (declining to follow Saxon Industries in light of Braswell); Thomas v. Tyler, 841 F.Supp. 1119, 1129 (D.Kan.1993) (same). Accordingly, one should not expect a reasonably prudent party to have relied on Saxon Industries during the period after 1988. Moreover, even Saxon Industries did not involve a fact pattern in which an employee left his employment with corporate documents in the midst of a federal grand jury investigation during which subpoenas had already been served on the corporation. To the contrary, as discussed above, the employee in Saxon Industries resigned a full year before any subpoena was issued. Only by imagining the unprecedented results of this very case — that is, by taking several large, uncertain steps beyond Saxon Industries — could parties or their counsel have believed that a former employee could invoke the “act of production” privilege after resigning and taking corporate documents in the midst of a criminal investigation of the corporation, despite a continuing contractual obligation to cooperate with any investigation.
The majority opinion here provides each of those large steps. In doing so, it creates “an obvious haven for those who seek to frustrate the legitimate demands for the production of relevant corporate records made by a grand jury.” In re Grand Jury Subpoena Dated November 12, 1991, 957 F.2d at 810 (internal quotation marks omitted). The unintended consequences of the majority opinion are not difficult to imagine: A person who is well-informed on the state of the law, and whose activities within a “collective entity” are under investigation, hereafter will have a clear incentive to leave the organization, take with him — with or without the assistance of the organization — any documents that he knows may contain evidence of wrongdoing, and then resist production of these documents by asserting a claim of privilege against compelled self-incrimination. We should not be surprised if in the future, as a direct result of today’s holding, we see more “reported incidents,” ante at 182, of this sort of obstructionist behavior.
For all of the foregoing reasons, I respectfully dissent.
. As the majority notes, see ante at 181, the Supreme Court also reached the same result in Bellis v. United States, 417 U.S. 85, 96 n. 3, 94 S.Ct 2179, 40 L.Ed.2d 678 (1974), but based its decision in part on particular features of partnership law that are not implicated in the instant case, in which the relevant collective entity is a corporation. Nothing in Beilis, however, casts doubt on the validity of the Supreme Court's earlier decisions dealing with former corporate agents. Indeed, the Beilis Court cited both Wheeler and Grant with apparent approval. See id.
. The majority contends that Wheeler is inap-posite because its holding was limited to whether there is a “Fifth Amendment privilege with respect to the contents of the corporation's books and records,” and because the case was decided "before the Court jettisoned reliance on the visitatorial powers of the State over corporations.’ ” Ante at 181-82 (quoting Braswell, 487 U.S. at 108, 108 S.Ct. 2284). That Wheeler concerned only the contents of a corporation's books and records, and not the act of producing them, however, is analogous to an argument made by the dissenters in Braswell with respect to the full line of collective entity cases. See 487 U.S. at 123-26, 108 S.Ct. 2284 (Kennedy, J., dissenting). Significantly, that argument was rejected by a majority of the Court. As for the contention that Wheeler's rationale is no longer accepted, the Supreme Court cited the *186case approvingly in Bellis, 417 U.S. at 88-89, 94 S.Ct. 2179, and cited it again in Braswell, 487 U.S. at 111 n. 4, 108 S.Ct. 2284, well after the Court "jettisoned reliance on the visitato-rial powers of the State over corporations" as “one of the bases” for the collective entity rule. Id. at 108, 108 S.Ct. 2284 (emphasis added). In short, Wheeler stands for the proposition that, for the purposes of the collective entity rule, termination of a custodian's employment with a corporation does not terminate his custodianship of corporate documents that remain in his possession.
. Moreover, it is clear that John Doe I and John Doe II were aware of the subpoenas. While John Doe I and John Doe II were still employed by the corporation, counsel for the corporation met with them separately, and asked for material responsive to the broadest of the three subpoenas. Each employee provided some responsive documents.
. Responding to this point, the majority contends that "[tjhere is simply no basis in law for interpreting the severance agreements as giving rise to a continuing agency relationship between the former employees and their former employer." Ante at 180. This reasoning bears striking resemblance to that of Justice Kennedy’s dissent in Braswell, which chided the majority for allegedly misapplying common law principles of agency. See Braswell, 487 U.S. at 126-28, 108 S.Ct. 2284 (Kennedy, J., dissenting). The crucial issue for Fifth Amendment purposes, however, is not whether an individual continues to act as an agent of a corporation for all purposes even after terminating his employment, but whether that individual acts in a "representative capacity" when he holds, and produces, concededly corporate documents subject to subpoena. See, e.g., In re Grand Jury Subpoena Dated November 12, 1991, 792 F.Supp. 1423, 1427-30 (S.D.Fla.), aff'd, 957 F.2d 807 (11th Cir.1992). With respect to that question, I believe the severance agreements are legally significant.