Let's review a case of producing records for a government subpoena of records and the privilege against self-incrimination. The District Court cannot order an attorney to provide a privilege log prior to in camera review of the client's documents.
Under the landmark Supreme Court's 1976 decision in Fisher v. United States, a criminal suspect can sometimes assert an "act of production" Fifth Amendment privilege against self-incrimination. This privilege carries significant weight, allowing the suspect to resist the government's attempt to require the production of documents.
Unlike the privilege against compelled statements, the act of production privilege is quite narrow in practice.
Where the government can independently establish the existence, authenticity, and the suspect's custody of the documents sought, courts have held that the act of producing the documents does not reveal any additional incriminating information and therefore no privilege applies.
The act of production privilege therefore defeats only a true fishing expedition where the government has no independent reason to believe that specific documents are in the custody of the individual they suspect of a crime.
When the suspect shares the incriminating documents with the suspect's attorney for the purpose of obtaining legal advice, the Fisher privilege extends to attempts by the government to compel production by the attorney.
In Re Grand Jury Subpoena
In In Re Grand Jury Subpoena (9th Circuit No. 24-2506), the Court of Appeals considered for the first time whether an attorney asserting the Fisher privilege on behalf of a client can be compelled to produce a privilege log to the government prior to the district court conducting an in camera review of the arguably privileged documents to determine whether or not the act of production would tend to incriminate the attorney's client.
Reversing the district court, the Ninth Circuit held that an attorney may not be so compelled.
A grand jury issued the attorney's client a subpoena in connection with a tax evasion investigation. The client asserted the Fifth Amendment privilege not to testify, as well as the Fisher privilege with respect to producing any documents.
The grand jury next subpoenaed the attorney, who had previously represented the client in tax matters, for documents related to the representation.
The subpoena further commanded the attorney to produce a privilege log if he intended to withhold any documents. The attorney refused to produce documents or a privilege log, which he argued would also violate the client's Fifth Amendment rights. The government moved to compel the attorney to produce the privilege log, and an interlocutory appeal followed.
Admission by a Subpoenaed Party
The act of producing documents is essentially an admission by a subpoenaed party that the documents exist, are authentic, and are in the party's possession. Those facts can be incriminating.
As noted above, however, the act of production is not privileged where the government independently establishes existence, authenticity, and possession. There, the act of producing the documents adds little or nothing to the government's knowledge.
The Ninth Circuit found that producing a privilege log would, in effect, provide the government with evidence of the sought documents' existence, authenticity, and the client's possession of the documents (at least before transferring them to the attorney).
Court Rejected the Government's Arguments
Turning over the privilege log would therefore deprive the client of any future ability to claim the Fisher privilege. This means that if the client were to be subpoenaed again for the same documents, they would not be able to use the Fisher privilege to resist the production of those documents.
The court rejected the government's arguments that the privilege log would not qualify as independent knowledge sufficient to defeat a future invocation of the act of production privilege.
If the government issued the client a new subpoena for the same documents, the court reasoned, the government could point back to the privilege log to overcome Fisher.
The court noted that the district court on remand was not bound to accept the attorney's invocation of the privilege. It could order the attorney to produce the privilege log for the court's in camera review to determine if Fisher, or any other privilege against production, applies.
It can also consider whether the documents were, in fact, transferred to the attorney for the purpose of obtaining legal advice. Or more information, contact our federal criminal defense lawyers, Eisner Gorin LLP, located in Los Angeles, CA.
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