9th Circuit Holds that Law Firm Asserting a Fisher Privilege for Client Documents it Possesses that Are Potentially Subject to Fifth Amendment Privilege in Client's Hands Need Not Produce a Privilege Log (2/1/25)

In In re Grand Jury Investigation, dated July 21, 2023, ___ F.4th ___ (9th Cir. 1/28/25), CA9 here and GS here, the grand jury subpoenaed a target of a grand jury investigation who invoked his Fifth Amendment privilege. The grand jury then subpoenaed a Law Firm for the target (“Client”) to produce records Client had delivered to the Law Firm in the context of receiving legal advice. Law Firm declined to produce asserting privilege. The Government moved to require Law Firm to provide a privilege log (sometimes called a Vaughn index) to help the government determine if the privilege was properly invoked. The district court required that the Law Firm give the privilege log. The client then immediately appealed under the Perlman doctrine permitting an immediate appeal rather than awaiting a contempt holding. See Perlman v. United States, 247 U.S. 7 (1918).The Ninth Circuit panel held (per the summary (similar to a Supreme Court Syllabus), Slip Op. 2-3)

In Fisher [Fisher v. United States, 425 U.S. 391 (1976)], the Supreme Court held that when the Fifth Amendment protects an individual from the compelled production of documents and the individual shares those documents with his attorney to obtain legal advice, the attorney-client privilege shields the attorney from compelled production of those documents to the government. But if the government can already independently determine the existence, authenticity, and client’s custody of those documents such that the act of producing them would reveal no additional incriminating information, the Fifth Amendment does not protect the individual against the documents’ production, and the Fisher privilege accordingly does not apply.

The panel held that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies, and that to determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the Government without any such prior process, the panel reversed and remanded.

1. The panel held that in camera inspection was more appropriate than a privilege log which “would reveal the existence, authenticity, and Client’s custody of those documents” which could meet the requirement that, upon the issuance of a new subpoena to Client, the government meet the “foregone conclusion” burden to get past the Client’s Fifth Amendment privilege. “Put simply, were Law Firm to provide the Government with a privilege log detailing documents to which the Fisher privilege applies, Client would lose any Fifth Amendment right to decline to produce the documents identified therein.” (Slip Op. 9.)

2. The panel rejected a Government attempt to exploit by waiver a claim that the Client, the real party on the appeal, had mis-sourced the Fisher privilege. (Slip Op. 7 n. 3.) The Court held that Client had not waived the sourcing issue.

3. The panel’s short discussion of the Perlman doctrine is correct but is not robust and doesn’t need to be for the opinion. For those wanting more on the Perlman doctrine, see Third Circuit on Crime-Fraud Exception to Attorney-Client and Work-Product Privileges (Federal Tax Procedure Blog 12/12/12), here.