The Act of Production Doctrine

By James G. Thomas

By way of case law examples, this article illustrates how the “act of production doctrine” can (and should) be used as a shield in criminal defense practice.  As will be seen, the doctrine may offer protections even when the act of production has been statutorily immunized under 18 U.S.C. §§ 6002-6003.

Origins and Contours of the Doctrine

The act of production doctrine (sometimes confusingly referred to as the act of production “privilege”) is a creature of the Fifth Amendment’s privilege against self-incrimination.  It applies to the compelled production of documents and other “things” by an individual, acting solely in an individual (non-representative) capacity.

The doctrine originated with the Supreme Court’s 1976 decision in Fisher v. United States.[1]  Its contours are largely defined by the Supreme Court’s contrasting decisions in Fisher and United States v. Hubbell,[2] decided twenty-four years later.

The doctrine hinges on the concept that while the contents of pre-existing documents are never subject to a claim of Fifth Amendment privilege (because their creation was not “compelled”),[3] the compelled act of producing them in response to a subpoena (typically, but not necessarily, a grand jury subpoena) can itself be testimonial on the facts of a given case, because the recipient of the subpoena would be effectively testifying to the existence, his possession, and the authenticity of the documents or other materials that the subpoena calls for, as well as the respondent’s belief that the documents he would be producing are responsive to the subpoena.

Depending on where the facts of a given case fall on the continuum between Fisher and Hubbell, the act of production is not always “testimonial” (and thus protected by a claim of Fifth Amendment privilege).  The issue boils down to whether the existence of the documents in question (and the respondent’s possession of them) was a “foregone conclusion” at the time of the subpoena’s issuance, such that the respondent would merely be “surrendering” them as opposed to providing “testimony.”  (This is referred to as the “foregone conclusion” doctrine.)

In Fisher, the IRS was conducting tax examinations of two different individuals in two different districts and served civil summonses on their respective law firms for the workpapers of the taxpayers’ accountants, which the taxpayers had provided to the lawyers representing them in the tax examinations.[4]  In each instance, the IRS knew that the lawyers had possession of the workpapers, such that the existence and location of the papers was a “foregone conclusion.”[5] The taxpayers, by producing the papers through their lawyers, were not “testifying” about their existence or authenticity in any sense, but were merely “surrendering” them.[6]  Stated another way, the government was not using the contents of the taxpayers’ minds against them, such that there was no Fifth Amendment privilege attached to the production of their documents.

Hubbell arose out of the so-called Whitewater investigation and ensuing prosecutions, led by Independent Counsel Ken Starr.  Webb Hubbell (the former Associate Attorney General under President Clinton) was already serving a federal sentence for mail fraud and tax evasion when the Office of Independent Counsel served him with a grand jury subpoena duces tecum calling for the production of eleven categories of documents.[7]  (The “rider” to the subpoena with the document descriptions is included as an Appendix to the Court’s opinion.)  After receiving an order of formal immunity under 18 U.S.C. §§ 6002-6003 for the act of production, Hubbell produced over 13000 pages of documents in response to the subpoena, which ultimately resulted in a new and unrelated prosecution for various tax-related crimes, mail fraud and wire fraud.[8]

Before trial, however, the district court granted Hubbell’s motion to dismiss under Kastigar v. United States,[9] finding that his prosecution had resulted from an unconstitutional “derivative use” of Hubbell’s act of producing the documents in response to the grand jury subpoena under the statutory immunity order he had received.[10]  On appeal, the D.C. Circuit initially vacated and remanded the case.  The Court held that the district court had applied the wrong standard, and that the Independent Counsel should have the opportunity of demonstrating “with reasonable particularity” his prior awareness that the “exhaustive litany” of documents sought in the subpoena existed and were in Hubbell’s possession on the day the subpoena issued.[11]

On remand, however, the Independent Counsel acknowledged that he could not satisfy the “reasonable particularity” standard that the D.C. Circuit had prescribed, and the parties entered into a conditional plea agreement that was contingent upon the Supreme Court’s disposition of the case.  The Court granted certiorari “to determine the precise scope of a grant of immunity with respect to the production of documents.”[12]

Writing for the Court, Justice Stevens accepted the district court’s characterization of the subpoena as a “fishing expedition,” with the government unable to show that the existence of the subpoenaed materials and their whereabouts was a “foregone conclusion” at the time of the subpoena’s issuance.[13]  As Justice Stevens put it, “[Hubbell’s] assembly of [the documents responsive to the subpoena] was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.”[14]  “It was unquestionably necessary for [Hubbell] to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena,” which made his act of production testimonial.[15]

The Court specifically rejected the Independent Counsel’s argument that Hubbell’s act of producing ordinary business records was insufficiently “testimonial” because the existence and possession of such records by any businessman is a “foregone conclusion” under Fisher.  According to Justice Stevens, this argument misread Fisher.[16]

Because the government could not bear its burden under 18 U.S.C. § 6002 (as construed in Kastigar) of showing that the evidence it used in obtaining the indictment and proposed to use at trial was derived from legitimate sources “wholly independent” of the testimonial aspects of Hubbell’s immunized act of production, the Court dismissed the indictment.[17]

Broadly stated, then, Hubbell stands for the proposition that the government cannot prosecute an individual based on evidence obtained by means of a “fishing expedition” subpoena duces tecum, even when the individual’s act of production has been fully immunized.  Both the existence of the documents and the respondent’s possession of them must be a “foregone conclusion.”

The Act of Production Doctrine in Practice

There is not a great deal of reported federal appellate case law applying Hubbell, but there are four decisions in particular that illustrate how problematic the “foregone conclusion” requirement can be for the government.

In In re Grand Jury Subpoena, Dated April 18, 2003,[18] the Ninth Circuit reversed the district court’s order holding the respondent in contempt for failing to produce all documents in his possession “relating to the production or sale of Dynamic Random Access Memory (‘DRAM’) components, including but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents.”[19]

Quoting Hubbell, Judge Canby concluded that responding to the subpoena “was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.”  And quoting from the D.C. Circuit’s decision that the Hubbell Court affirmed, he observed that it is the “quantum of information possessed by the government before it issues the relevant subpoena” that is central to the “foregone conclusion” inquiry, and at the time the government served the subpoena at issue on the respondent, it had no reason to believe that he possessed the “myriad of documents” it sought.[20]

In United States v. Ponds,[21] the defendant-lawyer had full statutory use immunity before his indictment on multiple charges, and he both produced documents in response to a grand jury subpoena and testified about them.  At trial, he was convicted on all counts, and appealed on the grounds that the government had made improper “derivative use” of his documents and testimony in preparing its case against him, which the government actually conceded “to some extent.”  The D.C. Circuit thus reversed Ponds’s convictions and remanded the case to the district court to determine whether the government’s impermissible use of the immunized evidence was harmless beyond a reasonable doubt.[22]  Central to the Court’s analysis was its finding that the government had failed to establish its previous knowledge of the existence or location of most of the documents subpoenaed from Ponds.[23]

Writing for the Court, Judge Rogers observed at the outset of her opinion that the case required the Court to “address the breadth of that immunity for an act of production that, in its testimonial character, falls somewhere between the response to a fishing expedition addressed in [Hubbell], and the production of documents whose existence was a ‘foregone conclusion’ in [Fisher].”[24]  This succinctly frames the defense lawyer’s goal in an act of production challenge, i.e., falling closer to the “fishing expedition” end of the Fisher-Hubbell spectrum.

In In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011,[25] the Eleventh Circuit reversed the district court’s order holding the respondent in civil contempt for refusing to decrypt and produce the unencrypted contents on the hard drives of his laptop computers and five external hard drives.  The government had reason to believe that the hard drives contained child pornography.

One wrinkle in this case is that the government obtained an order of immunity for the act of production under 18 U.S.C. §§ 6002-6003, but carved out the standard prohibition against derivative use.[26]  In addition to holding that the decryption and decoding of the hard drives’ contents would be testimonial, the Court also held that the immunity order was defective because its allowance of derivative use rendered it less than co-extensive with the Fifth Amendment privilege.[27]

As to the “foregone conclusion” issue, the Court found that the government had failed to show a “basis with reasonable particularity” for its belief that encrypted files even existed on the drives, that the respondent had access to those files, or that he was capable of decrypting the files.  Consequently, the “foregone conclusion” requirement was not satisfied.[28]  Judge Tjoflat followed the “reasonable particularity” standard with regard to the foregone conclusion doctrine that the D.C. and Ninth Circuits had previously adopted.[29]

The Court’s rationale, however, seems to suggest that it wouldn’t have made any difference if the immunity order had contained the standard bar against derivative use (as had the order in Hubbell).  Any evidence that might have been gleaned from the hard drives would have been inadmissible, because it would have been derived from the testimonial act of production (just as in Hubbell).

In short, this Eleventh Circuit decision reflects that Hubbell creates a formidable hurdle for the government in using evidence obtained from individuals by means of a grand jury subpoena duces tecum unless it already knows in advance (with “reasonable particularity”) what the evidence is and that the respondent is in possession of it.  This will often be a high bar.

The Second Circuit’s recent opinion in United States v. Greenfield,[30] is very fact-bound, but it likewise reflects a court’s finding that the government had failed to meet the “foregone conclusion” standard in the context of an IRS summons enforcement proceeding.  Id. at 110, 128.  “The question before us,” Judge Calabresi wrote, “is whether the instant case is more like Fisher or Hubbell.”  The answer was Hubbell.

Concerning the government’s knowledge of the existence and control of the sought-after documents, the Second Circuit adopted the “reasonable particularity” standard; the government need not demonstrate perfect knowledge of each specific responsive document covered by the summons.  Id. at 116.  But on the other hand, the government must know, and not merely infer, that the sought documents exist, that they are under the defendant’s control, and that they are authentic.  Id.  The “appropriate moment” for the foregone-conclusion analysis is when the relevant summons was issued.  Id. at 124.

Limits and Exceptions To The Doctrine

The viability of the act of production doctrine as a tool for the defense is substantially tempered by the “collective entity” doctrine.  This doctrine applies when a subpoena recipient is subpoenaed as a representative of a collective entity (typically a corporation, but it could be any type of organization), and the subpoena is directing him to produce documents on behalf of the entity.  In a line of cases starting with Wilson v. United States,[31] Dreier v. United States,[32] and continuing through Bellis v. United States,[33] and Braswell v. United States,[34] the Supreme Court has consistently held that an individual cannot assert his individual Fifth Amendment privilege in response to a grand jury subpoena (or other process) directed to an entity for which he is a representative.  To be clear, however, the collective entity doctrine does not apply to sole proprietorships.[35]

As an example of how far the collective entity doctrine can reach, in In re Grand Jury Subpoena Dated November 12, 1991, FGJ 91-5 (MIA),[36] the Eleventh Circuit applied the doctrine to compel the former chairman of the board and CEO of a defunct bank to produce copies of corporate records in his possession that he had caused to be copied for purposes of defending himself in various administrative, civil, and criminal proceedings arising from the bank’s failure.

However, the Second Circuit went the other way (as to former employees in possession of corporate documents) in In re Three Grand Jury Subpoenas Duces Tecum Dated January 29, 1999.[37]  The Court expressly rejected the Eleventh Circuit’s view, but recognized a circuit split on the question of whether the collective entity doctrine applies to former employees.

In Braswell v. United States, the Supreme Court did give a measure of comfort to “corporate custodians” within the context of the collective entity doctrine.  In a 5-4 split decision, the Braswell Court upheld subpoenas for records of two corporations that were served on the corporations’ president and sole shareholder.  Towards the end of his opinion for the majority, Chief Justice Rehnquist observed that “certain consequences flow from the fact that the custodian’s act of production is one in his representative rather than personal capacity,” such that the government may not introduce into evidence the fact that the records were produced by the particular custodian (as the government itself conceded).  But this has no bearing on the admissibility of their contents.[38]

Finally, a word should be said about the so-called “required records exception” to the Fifth Amendment, which the Supreme Court recognized in Shapiro v. United States.[39]  The Shapiro Court held that the government can require persons to keep records of certain business activities and make them available for government inspection upon request (or in response to a subpoena).[40]

The exception has three requirements: (1) the governmental requirement that records be kept must be “essentially regulatory” in nature; (2) the records must be “of a kind which the regulated party has customarily kept”; and (3) the records “must have assumed some ‘public aspects’ which render them at least analogous to public documents.”[41]

Records concerning offshore bank accounts that the Bank Secrecy Act requires are a good current example.  E.g., In re Grand Jury Proceedings, No. 4-10.[42]  “Odometer statements” maintained by automobile dealerships are an earlier example.  E.g., In re Grand Jury Subpoena Duces Tecum Served Upon Randall Underhill.[43]

Conclusion

Since Hubbell’s elaboration upon the “foregone conclusion” requirement, the act of production doctrine has developed into a formidable shield for individuals subpoenaed or summoned for documents or other things (in their individual capacities).  It should not be overlooked.

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[1]           425 U.S. 391 (White, J.).

[2]           530 U.S. 27 (2000) (Stevens, J.).

[3]           U.S. v. Doe, 465 U.S. 605, 611-12 & n.10 (1984).

[4]           Fisher, 425 U.S. at 394.

[5]           Id. at 411.

[6]           See id.

[7]           Hubbell, 530 U.S. at 30-31.

[8]           Id. at 31-32.

[9]           406 U.S. 441 (1972). Under Kastigar (in the case of a witness who has received statutory immunity), the government bears the burden to prove that “the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”  Id. at 460.

[10]          Id.

[11]          Id. at 32-33.

[12]          Id. at 33-34.

[13]          Id. at 32, 42, 44-45.

[14]          Id. at 43.

[15]          Id.

[16]          Id. at 44.

[17]          Id. at 45-46.

[18]          383 F.3d 905 (9th Cir. 2004).

[19]          Id. at 908.

[20]          Id. at 911.

[21]          454 F.3d 313 (D.C. Cir. 2006).

[22]          Id. at 329.

[23]          See id. at 324-25.

[24]          Id. at 316.

[25]          679 F.3d 1335 (11th Cir. 2012) (Tjoflat, J.).

[26]          See id. at 1338.

[27]          Id. at 1341, 1349, 1352-53.

[28]          Id. at 1349.

[29]          Id. at 1344 n.20.

[30]          831 F.3d 106 (2d Cir. 2016).

[31]          221 U.S. 361 (1911).

[32]          221 U.S. 394 (1911).

[33]          417 U.S. 85 (1974).

[34]          487 U.S. 99 (1988).

[35]          U.S. v. Doe, 465 U.S. 605, 606, 608, 617 (1984).

[36]          957 F.2d 807 (11th Cir. 1992) (per curiam).

[37]          191 F.3d 173, 183 (2d Cir. 1999).

[38]          See Braswell, 487 U.S. at 117-18.

[39]          335 U.S. 1, 17-19 (1948).

[40]          The Supreme Court reaffirmed Shapiro in Hubbell.  See 530 U.S. at 35 n.17.

[41]          Grosso v. U.S., 390 U.S. 62, 67-68 (1968).

[42]          707 F.3d 1262 (11th Cir. 2013).

[43]          781 F.2d 64 (6th Cir. 1986).

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