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.
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