Legal Analysis of Testimonial Privilege in Subpoenaed Document Production

COVINGTON The Honorable Richard Burr The Honorable Mark R. Warner May 22, 2017 Page 3 A. If the government fails to demonstrate prior knowledge of requested subpoenaed documents, the act of producing those documents is testimonial. Two Supreme Court precedents, Fisher v. United States, 425 U.S. 391 (1976) and United States v. Hubbell, as well as Hubbell’s progeny, United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006), inform the determination of whether a production of documents in response to a subpoena has a testimonial character. Fisher involved IRS investigations in which the government learned that the investigated taxpayers had given their attorneys tax returns prepared by their accountants in the years in question. The Court highlighted that the subpoenaed documents belonged to the accountant and not the target of the investigation, were - prepared by the accountant, and are “the kind usually prepared by an accountant working on the tax returns of his client.” Fisher, 425 U.S. at 411. The Court concluded that insofar as the government was not relying on the taxpayer to prove the existence of the documents, production of the documents was not “testimonial” because “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.” Id. In contrast to Fisher, a case in which investigators already knew that documents existed and exactly where they were located, the investigators in Hubbell lacked “any prior knowledge of either the existence or the whereabouts” of the subpoenaed materials. Hubbell, 530 U.S. 27, 44- 45. Hubbell arose out of the Whitewater investigation, in which Independent Counsel Kenneth Starr sought broad categories of information from Webster Hubbell, a target of the investigation. The subpoena included such requests as “any and all documents reflecting, referring, or relating to” the broad contours of the investigation, as well as “Hubbell's schedule of activities.” Id. at 41, 47. In examining the broad requests in the subpoena, the Court emphasized that “it [was] apparent from the text of the subpoena itself that the prosecutor needed respondent’s assistance both to identify potential sources of information and to produce those sources.” Id. at 41. The Court ruled that the acts required to respond to such a broad subpoena were testimonial in nature, comparing them to “answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.” Id. at 41, 43. The U.S. Court of Appeals for the District of Columbia Circuit applied Hubbell and Fisher in United States v. Ponds, framing the inquiry as concerning “an act of production that, in its testimonial character, falls somewhere between the response to a fishing expedition addressed in United States v. Hubbell, and the production of documents whose existence was a ‘foregone conclusion’ in Fisher v. United States.” United States v. Ponds, 454 F.3d 313, 316 (D.C. Cir. 2006). The court emphasized that “[w]Jhether an act of production is sufficiently testimonial to implicate the Fifth Amendment . . . depends on the government’s knowledge regarding the documents before they are produced.” Id. at 320. Significantly, the Ponds court put the burden on the government to show that the act of production would not be testimonial, requiring the government to show its pre-subpoena knowledge of the “existence, possession, and authenticity of the subpoenaed documents with reasonable particularity such that the communication inherent in the act of production can be considered a foregone conclusion.” Id. at 324 (internal citations omitted). : HOUSE_OVERSIGHT_031672