Court Blurs Analysis of the Fifth Amendment and Document Production (5/12/11)

In United States v. Nugyen (SD TX 5/5/11), the court considered the Government's petition to enforce IRS summonses. The individuals asserted blanket claims of Fifth Amendment privilege to answer questions and produce documents. In its analysis, the court somehow got off track with respect to the document production.

1. Since Hubbell and indeed its predecessor Fisher, there has been no Fifth Amendment privilege for the contents of documents. The documents were not produced under compulsion and hence any "testimony" in them is not subject to the privilege.  The Fifth Amendment privilege for compulsory production of documents arises from testimony inherent in the act of producing documents under compulsion. (This is often called the Act of Production doctrine.)  Testimony inherent in the act of production can include the existence and possession of the documents, the witnesses' mental acts of having to identify and cull documents identified in a generalized and overbroad summons, authenticity, etc.

2. With respect to testimony inherent in the act of production, the Government has a work-around where it can show the "existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." Fisher, p. 411. The test applied by some courts (cited in the opinion) is whether the Government has shown the existence and location with "reasonable particularity."  (I am not sure that this work around fully addresses the Fifth Amendment concerns, but it sure goes a long way in mitigating the concerns because it looks like the burden is the type of burden to get a search warrant, a far more inclusive process that does not rely upon the testimony of the party suffering the search warrant.)

3. The court makes the strange statement that "Documents prepared by a third party are not generally testimonial." The complete and inclusive statement is that documents are not testimonial period, regardless of who prepares the documents. To be sure, there are plenty of cases making such statements, but they probably are vestiges of the days before Fifth Amendment analysis focused only on the Act of Production.

4. The Court then held: "Ha and Nguyen must comply with the summons. To the extent they believe that producing certain documents creates a substantial and real risk of incrimination, they may submit those documents to this court for in camera review, no later than May 20, 2011." For the reasons noted above, I think that holding is incorrect.  If indeed the contents of the documents cannot be privileged, how could an in camera review of the documents be relevant.  I suppose it is possible -- but think this is a stretch -- that the in camera review might help focus on whether the Government has met the foregone conclusion / reasonable particularity standard to overcome the Act of Production doctrine as to testimony inherent in the act of production (not the contents).  But I think most courts can determine the applicability of the act of production doctrine without reviewing the contents of the documents.  For example, the Supreme Court in Hubbell found the act of production doctrine applied to a kitchen sink grand jury subpoena without particular concern about the contents of the documents.

5. The court then conflates the concepts as follows:

This court notes that, assuming Ha and Nguyen can show that producing individual documents creates a substantial and real risk of incrimination, certain categories of documents are likely "testimonial" unless the government can demonstrate its knowledge of the existence, possession, and authenticity of the documents with "reasonable particularity."

If indeed the contents of the documents were testimonial and subject to a Fifth Amendment privilege, how would the Government's showing of existence, possession and authenticity with reasonable particularity have anything to do with the contents of the documents? That showing has only to do with the testimony inherent in the act of production, not in the contents of the documents.

5/12/11