Thursday, June 14, 2012

Order Requiring Production of Required Records (6/14/12)

This is a follow through on the Ninth Circuit's holding in M.H. v. United States (In re Grand Jury Investigation M.H.), 648 F.3d 1067 (9th Cir. 2011), here.  My prior blog on that holding is 9th Circuit Applies Required Records Doctrine to Defeat 5th Amendment Claim for FBAR Recordkeeping (8/19/11), here.

On remand, the district judge entered an order of compulsion and contempt against M.H.  The order was issued under seal on December 6, 2011.  The now unsealed and redacted order is here.  The gravamen ot the order is:

1.  M.H. is required to produce the required records.  The records that M.H. can obtain from the Swiss Bank (UEB) are in M.H.'s constructive posssession.  M.H. must therefore produce them -- i.e., since M.H. did not have them when the subpoena was issued, M.H. must get them.  Otherwise he (or she) is in contempt of the grand jury and will be confined.

2.  M.H. must produce the records of his proceeding in Switzerland to try to prevent the Swiss Government from responding to a request for his (or her) bank records.  Technically, this came in an order requiring compliance with 18 U.S.C. § 3506.  [For other discussion of that section, see here.]  The court has a straight-forward application of the "Act of Production" doctrine and the related "foregone conclusion" concept.

I may have more on this when I have time.

1 comment:

  1. At the end of the order it says that the documents must be produced by Dec. 21, 2011 (15 days after the order was written.)  But the order was sealed and only recently unsealed.  How can that be?
    (Even 15 days might not be enough time from a practical point of view.)


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