Thursday, March 12, 2009

Act of Production Doctrine and Particularity (3/12/09)

In our University of Houston Tax Fraud class last night, one of the topics we covered was the Fifth Amendment privilege in connection with compulsory process to produce documents. In the federal system, compulsory process is often a grand jury subpoena but also includes an administrative summons, such as the IRS summons, and even a trial subpoena. For the balance of this discussion, I refer to a grand jury subpoena, but the same analysis would apply to the other forms of compulsory process.

The current state of the law is that there is no Fifth Amendment privilege with respect to the contents of documents that have been voluntarily prepared, but a witness subject to compulsory process may invoke a Fifth Amendment privilege to the testimonial aspects of the act of production. See United States v. Hubbell, 530 U.S. 27 (2000) (summarizing cases). The Supreme Court held in Hubbell that a "kitchen sink" grand jury subpoena of general scope, with no particularity as to the documents requested, and with no indication of any knowledge that documents described in the grand jury subpoena even existed would require the witness to "testify" in responding to the subpoena. These testimonial aspects are subject to the Fifth Amendment privilege; this concept is generally referred to as the act of production doctrine. The cases generally interpret the requirement for compulsory process as some prior Government knowledge -- including that the existence of the documents is a foregone conclusion -- in order to overcome a Fifth Amendment objection.

I re-read Hubbell this morning and focused on Justice Thomas' concurrence (joined by his sidekick, Justice Scalia). Justice Thomas concluded his concurrence by suggesting that he and Justice Scalia were open to the question of whether the Government could compel a witness to produce documents regardless of what the Government may know about the existence of the documents. Justice Thomas noted in a footnote (fn 6): "To hold that the Government may not compel a person to produce incriminating evidence (absent an appropriate grant of immunity) does not necessarily answer the question whether (and, if so, when) the Government may secure that same evidence through a search or seizure. The lawfulness of such actions, however, would be measured by the Fourth Amendment rather than the Fifth."

Let's imagine for a minute that the Supreme Court were to reconsider this area of the law and hold that a witness cannot be compelled to produce documents over a Fifth Amendment privilege. If the Government could show probable cause to believe a crime has been committed and particularity as to the documents that are the subject of the search warrant, it could obtain a search warrant. A search warrant is a far more intrusive process than a grand jury subpoena. So, in terms of promoting a civilized society consistent with the values in our constitution, it would seem to be unobjectionable to permit the issuance of a summons or grand jury subpoena for the same documents that the Government could seize by search warrant. But in focusing further upon the relationship between the subpoena and the search warrant, I noted that the two seem to have one parallel element -- the requirement that the documents be described with particularity in order to overcome the Hubble concerns.

This approach seems to have animated the court in United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006). Focusing on the spectrum usually encountered between the frames of the two cases – Fisher where the documents were reasonably known to exist (no Fifth Amendment privilege) and Hubble where the Government was just fishing (Fifth Amendment privilege) – the Ponds Court said (pp. 320-321):

Although the Supreme Court did not adopt the “reasonable particularity” standard in affirming our decision, it emphasized that the applicability of the Fifth Amendment turns on the level of the government's prior knowledge of the existence and location of the produced documents. See Hubbell, 530 U.S. at 44-45. Post-Hubbell, another circuit has applied the reasonable particularity standard to determine whether an act of production is sufficiently testimonial to implicate the Fifth Amendment. See In re Grand Jury Subpoena Dated April 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004). Because that standard conceptualizes the Supreme Court's focus in a useful way, so do we.

The Ponds court found that, under the facts, the prosecutors did not have the required particularity of knowledge as to some of the documents and, accordingly, that Ponds had a Fifth Amendment right to not produce the documents. As is sometimes the case where the subpoenaed party properly asserts a Fifth Amendment privilege, the prosecutors in Ponds obtained an immunity order prohibiting use and derivate use and, as in Hubbell, the immunity order is ultimately what propelled the issue forward when the taxpayer claimed, in effect, that, because his Fifth Amendment privilege was implicated, the prosecutors used the “testimony” thus compelled in a way not permitted by the grant of immunity. But the standard employed seems to parallel the search warrant particularity standard. See generally Lance Cole, The Fifth Amendment and Compelled Production of Personal Documents After United States v. Hubbell, 29 Am. J. Crim. L. 123 (2002).

The key features of the search warrant that distinguish the search warrant from the subpoena are (1) the search warrant is more intrusive, (2) the search warrant requires probable cause to believe a crime has been committed and some nexus between the crime and the items sought to be seized in the search, and (3) the search warrant has a neutral umpire -- the magistrate -- who must approve its issuance. Relative to those features, the subpoena (1) is far less intrusive, (2) does not require the showing of a crime and nexus and indeed is often used in the investigation of crime before it is even believed that a crime has been committed, and (3) there is no neutral umpire who must act before the subpoena is issued. But, in common, there is a particularity standard with a developed body of law in the search warrant area that now appears to be imported into the test for assertion of the act of production Fifth Amendment objection to compulsory testimony. Bottom line, that test will guard against unfocused fishing expeditions.


  1. Jack,

    I agree with your discussion and especially, with your observation that the reasonable particularity test implicitly set forth in Hubbell and explicitly set forth in Ponds (as well as the 9th. Circuit's 2004 decision on this point of law) will guard against "unfocused fishing expeditions."

    I also think that we need to go back to the original intent of the Founders and interpret the Fifth Amendment so as to provide comprehensive protection against compelled testimonial communications. In this vein, we should adopt Justice Thomas's position in Hubbell and abandon the Act of Production Doctrine in favor of affoding protection to the actual contents of documents.

    Stated another way--I would favor Fifth Amendment protection for both the contents (including tangible items and handwriting exemplar) as well as for the act of production.

    If the proper federal, state, local or tribal authorities believe that that they can describe what they seek with reasonable particularity, they should have 2 options: (1) Get the possessor's/custodian's informed consent; or,
    (2) Get a warrant.

    While we are on the subject of the Fifth Amendment, I would suggest that the US Supreme Court be urged to modify its holding in Kastigar and adopt the late Justice Marshall's dissenting opinion in that case, in part. Accordingly, I would urge that the US Supreme Court hold that the government can compel testimony over someone's assertion of his or her Fifth Amendment privilege by:

    1. Affording him/her absolute "transaction immunity" as to all matters and things he or she testifies in response to specific questions or requests for documents/things.

    2. Affording him or her "use/ derivative use immunity" as to everything else. For instance, if a witness is hauled into a Grand Jury and answers direct questions about a homicide, but in the course of his compelled appearance or testimony someone recognizes him or her as having participated in an armed robbery, "transactional immunity" should attach to the homicide charge and "use/derivative use immunity" should attach to any clues or leads linking him or her to the robbery.

    3. Additionally, "use/derivative use immunity" should be comprehensive and protect a witness who is subsequently prosecuted against the use of his or her compelled testimony "in any respect" (meaning both "evidentiary use" as well as "nonevidentiary use".).

    4. Also, all federal, state, local, and tribal prosecuting authorities should be required to establish the existence of both "legitimate independent sources" as to each item of disputed evidence and the lack of resort to "nonevidentiary use" (such as focusing of an investigation, order of calling witnesses, questions posed to witnesses, proposed jury instructions, motions in limine, and other legal strategy) by "clear and convincing evidence."

    5. Furthermore, the trial court should be required to conduct a "Kastigar hearing" pre-trial to determine whether the indictment should be dismissed and, if the case is not dismissed, to conduct appropriate proceedings to resolve suppression motions. My reasoning here is two-fold: (a) pre-trial Kastigar hearings are more conducive to evaluating the quashability of indictments based on immunity violations; and, (b) resolving motions to suppress based on the defendant's reasonably identifiable prohibited "evidentiary" and "nonevidentiary" uses is more appropriate in the context of a trial because the judge can evaluate the proffered evidence and Kastigar objections in a "factually concrete" setting.

  2. Anonymous

    Again, you have given a thoughtful analysis of the issues I discuss in the blog. I make the following points:

    1. I think Justice Thomas' point was, not that the contents of documents are or should be privileged, but that the act of being required to produce documents should be privileged without any particularity predicate.

    2. I understand that you might give a Fifth Amendment privilege to contents, but think that such a rule sweeps too broadly.

    3. I am not sure that requiring the witness to consent or get a warrant is the right answer. If the Government could get a warrant, why subject the witness to the search? A subpoena for only the documents that the Government could have seized via search warrant seems like a reasonable way to go so long as we have the present rule. And, indeed, that may be a good reason that Justice Thomas' solution is not a practical one.

    4. I will have to put some thought into your arguments regarding immunities. Maybe, at an early point I will pick up a case involving immunities for discusion in the blog and I can weave in some of your thoughts (with appropriate attribution to anonymous, of course).

  3. Jack,

    Thank you for clarifying Justice Thomas' point. In light of your clarification, I would be inclined to urge the US Supreme Court to hold that the Act of Production privilege extends to all records and tangible evidence (including handwriting exemplars) without a particularity predicate.

    I would certainly appreciate the opportunity for a future exchange regarding immunities.

    Thanks, again.

  4. Jack,

    I would like to invite you, your students and your readers to check out the article entitled "D.C. Circuit Extends Supreme Court's Interpretation of 'Derivative Use' Under 'Act of Production' Immunity authored by Scott D. Michel, President of Caplin & Drysdale, and published in the September 2006 Issue of the Andrews Litigation Reporter (20: 12). Here is a link to the Caplyn & Drysdale website containing a reprint of that article:

    Thanks for the opportunity to exchange ideas on your blog.

  5. Anonymous, thanks for the reference. Scott Michel is an excellent lawyer. I look forward to reading the article.

  6. You are very welcome, Jack.

    If you would, please let us know what you think of Scott's article.


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