Taking the Fifth with Documents

Anyone who practices law needs to know the parameters of the Fifth Amendment's self-incrimination clause ("No person ... shall be compelled in any criminal case to be a witness against himself ..."). To be sure, this language is pertinent to every criminal proceeding, but it also arises frequently in civil matters when a party (or the government itself) requests the production of documents that may contain incriminating information.

Know this, however: There is no Fifth Amendment privilege to refuse to produce subpoenaed documents on the ground their contents are self-incriminating; courts hold that such information is not "compelled testimony." However, as explained below, there is a crucial corollary: In certain circumstances the act of producing such documents may indeed be entitled to protection under the Fifth Amendment.

This subtle distinction is crucial and must be addressed frequently - whether an attorney is providing representation in criminal or civil proceedings; representing the plaintiff, the defendant, or a third-party witness; and whether the client is requesting or producing the documents in question.

Fifth Amendment Privilege
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

Whether the act of production has a testimonial aspect sufficient to attract Fifth Amendment protection is a fact-intensive inquiry (Fisher, 425 U.S. at 410). Producing documents is more likely to be a privileged act when a subpoena contains broad categories of documents, because responding is "tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions." (Hubbell, 530 U.S. at 41-42.)

Nevertheless, the Fifth Amendment privilege cannot be asserted reflexively to avoid the production of documents as there are several common exceptions to its application.

Business Entities
Under the "collective entity doctrine," the Fifth Amendment privilege does not apply to artificial entities (such as corporations) or to their custodian of records who claims that producing documents will incriminate the custodian personally. Such entities act only through agents. Allowing these agents to assert the privilege as to the production of the entities' records would effectively extend the privilege to the entities themselves. (See Braswell v. United States, 487 U.S. 99 (1988).) Moreover, when individuals voluntarily assume the custodian position, they take on the duty to produce its records upon proper demand (Braswell, 487 U.S. at 109-10 (applying collective entity rule to president/sole shareholder of small corporation); United States v. Blackman, 72 F.3d 1418, 1426-27 (9th Cir. 1996) (applying same rule to defendant partner of law firm)).

Whether the subpoena is addressed to the corporation or to an individual as custodian, the collective entity doctrine precludes the use of the privilege against self-incrimination because entity records are being produced in the custodian's representative capacity (Braswell, 487 U.S. at 108-09).

But if the custodian is prosecuted after she produces records, the Fifth Amendment does bar the government from introducing evidence that the subpoena was served on her or that the entity's documents were delivered by her. The government can still use the entity's documents in such a prosecution - assuming they can be authenticated independently - so if the custodian held a prominent position at the entity, a jury may infer she possessed the documents and/or had knowledge of their contents (Braswell, 487 U.S. at 117-18).

In the Ninth Circuit (but not all circuit courts) the collective entity doctrine does not apply to former employees, because they are no longer acting in a representative capacity for an entity (In re Grand Jury Subpoena Dated April 18, 2003, 383 F.3d 905, 909, n. 1 (9th Cir. 2004)).

Regulatory Records
The Fifth Amendment privilege does not apply to the production of records that must be kept due to voluntary participation in a regulated activity (Shapiro v. United States, 335 U.S. 1, 17 (1948)). This rule is commonly known as the "required records doctrine." The theory is that by voluntarily participating in the regulated activity, a person assumes a duty that trumps any claim of privilege.

The required records doctrine has three elements: (1) the records must be created essentially for regulatory, not criminal, purposes (for example, regulations requiring drivers involved in accidents to stop and provide their names and addresses to the police or file accident reports); (2) the records required must be of a kind that a person would customarily keep for the regulated activity; and (3) the records must have assumed public aspects rendering them at least analogous to public documents (In re Grand Jury Investigation M.H., 648 F.3d 1067, 1072-73 (9th Cir. 2011)).

Even a regulation that is intended to combat certain criminal activity can still be sufficiently regulatory under the required records doctrine. The key question is whether the regulation targets inherently illegal activity rather than a select group of people inherently suspected of criminal activity. (See M.H., 648 F.3d at 1074.)

In M.H., a grand jury subpoenaed records that a person was required to create and keep for inspection pursuant to Treasury Department regulations governing offshore bank accounts (these include documents showing account holder names, account numbers, bank account addresses, and the maximum account value each year). (M.H., 648 F.3d at 1070). There is nothing inherently illegal about having an offshore foreign bank account, and nothing inherently incriminating about the type of information the regulations required the person to keep. (Indeed, it is the act of failing to maintain the information for government inspection that suggests criminality.) Thus, requiring M.H. to provide the information would not likely establish a significant link in a chain of evidence tending to prove his guilt (M.H., 648 F.3d at 1074-75).

Furthermore, the information required was the type that someone customarily would keep if he chose to maintain an offshore bank account: the bank's name and address, the account number, and the account balance. The Fifth Amendment does not apply when the government compels individuals to create records they would customarily keep. (M.H., 648 F.3d at 1076.)

Finally, the records sought from M.H. did have public aspects, because they were required for regulatory purposes and the government was entitled to inspect them upon request. Even if some of the required information was private, the records still could have public aspects (M.H., 648 F.3d at 1078 (quoting Fisher)).

Foregone Conclusion Doctrine
If it is a "foregone conclusion" that records exist and are possessed by a person, producing them in response to a subpoena is not sufficiently testimonial to merit Fifth Amendment protection. In the Fisher case, taxpayers had received work papers from their accountants and sent them to their attorneys for legal advice. The IRS sought the working papers from the attorneys. The court concluded that even if the taxpayers possessed the work papers and were asked to produce them, no Fifth Amendment privilege would apply. "The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the 'truth-telling' of the taxpayer to prove the existence of or his access to the documents. ...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, 425 U.S. at 411.)

The subpoenaing party has the burden of proof on the foregone conclusion exception, and must show it had the requisite knowledge before issuing its subpoena. In a recent case taxpayers were served with IRS summonses for offshore bank records relating to two specified credit cards and "any other offshore credit cards." (United States v. Bright, 596 F.3d 683, 689 (9th Cir. 2010).) The Ninth Circuit upheld the foregone conclusion exception as to the specified cards, because the IRS independently knew about the cards when it served the subpoena and knew that the issuing banks sent specific types of records to account holders and could authenticate those records. But the circuit rejected the exception as to records of unspecified credit cards, because although the IRS may have known the cards existed when it issued the subpoenas, it did not learn that the taxpayers controlled the accounts and likely possessed the documents until it conducted a subsequent investigation (Bright, 596 F.3d at 692-94).

Third-Party Sources
Generally, no Fifth Amendment privilege protects against the production of a person's documents possessed by third parties such as banks or accountants. The Constitution does not proscribe eliciting incriminating statements from others (Couch v. United States, 409 U.S. 322 (1973)). The Fifth Amendment adheres to persons, not information, and individuals are privileged from personally producing incriminating evidence, but not from its production from other sources (Couch, 409 U.S. at 328).

In Couch, the taxpayer was the sole proprietress of a restaurant, and her accountant routinely possessed some of her business records to prepare tax returns. After the IRS examined those records at the accountant's office it issued a summons to the accountant for copies. The summons was enforced, over a Fifth Amendment privilege claim, because the taxpayer was not compelled to do anything (much less incriminate herself).

Couch did not close the door completely on assertion of the Fifth Amendment to prevent a third party's production of someone's records: "[S]ituations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact. But this is not the case before us." (Couch, 409 U.S. at 333-34.)

The Supreme Court revisited Couch's issue of third-party document production a few years later in the Fisher case, when the IRS sought accountant work papers from taxpayers' attorneys. Again, the Court rejected the taxpayers' assertion of the Fifth Amendment privilege, commenting that "we see no difference between the delivery to the attorneys in these cases and delivery to the accountant in the Couch case. As was true in Couch, the documents sought were obtainable without personal compulsion on the accused." (Fisher, 425 U.S. at 398.) However, the Court recognized that if the Fifth Amendment would excuse a taxpayer from producing accountant work papers he possessed, then an attorney to whom they were sent for legal advice would be equally protected (but because of the taxpayer's attorney-client privilege, not his Fifth Amendment privilege). (Fisher, 425 U.S. at 404-05.)

The Ninth Circuit has noted but declined to apply Couch's hypothetical situation of a relinquishment of possession that is so "temporary and insignificant" that the accused is still deemed the person who is compelled to produce. In In re Grand Jury Subpoena (Maltby) (800 F.2d 981, 984 (9th Cir. 1986)), a suspended police chief took a break from cleaning out his office, separating personal items from police items. During that overnight break, a federal grand jury subpoena was served on the new acting chief for all documents on the premises. The suspended chief successfully moved on Fifth Amendment grounds to quash portions of the subpoena that sought his personal documents. The circuit reversed, finding the situation squarely governed by Couch, because (albeit by happenstance) the suspended chief's records were possessed and produced by a third party - the new acting chief. The suspended chief, who was not compelled to do anything, had no basis to assert the Fifth Amendment privilege.

And the Supreme Court has held that, consistent with the Fifth Amendment, a court could order an individual to sign a form directing any foreign bank at which the individual may have had an account to disclose all information and documents about such an account. Signing such a form is not a testimonial communication, because it does not refer to any actual specific bank or account, does not confirm the existence of any documents if an account exists, and does not purport to authenticate any such documents; it speaks only in hypothetical terms (Doe v. United States (487 U.S. 201, 215-18 (1988)). Testimonial communication would come only when (after independent government investigation) a bank was served with the form and produced records it believed pertained to accounts held by that individual.

Know the Rule
In certain circumstances the Fifth Amendment provides individuals with a privilege against producing documents, if the act of production is itself incriminating. Identifying those circumstances and closely examining potential exceptions to the application of the privilege will ensure that both discovery duties and Fifth Amendment rights are honored.

Anthony A. De Corso is a partner in Orrick, Herrington & Sutcliffe's Los Angeles office. He focuses on white-collar criminal defense and other litigation matters.

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