by Sagi Schwartzberg

The U.S. Court of Appeals for the Ninth Circuit held that an attorney cannot be compelled to provide a “privilege log” to the Government relating to documents protected under the Fifth Amendment’s act-of-production privilege.

Background

During an investigation of an alleged tax evasion scheme, a grand jury issued a subpoena to an individual who was the target of the criminal investigation (“Client”), seeking testimony and production of documents. After the Client refused to comply, by invoking his Fifth Amendment privilege against compelled self-incrimination, the grand jury subpoenaed a law firm that had previously represented the Client in connection with tax matters (“Law Firm”). This subpoena sought various documents related to the Law Firm’s representation of the Client and instructed the Law Firm to produce the requested documents and provide a privilege log for any documents the Law Firm withheld from production.

The Law Firm declined to produce several documents and declined to provide a privilege log of the withheld documents. The Law Firm argued that the documents are protected by the attorney-client privilege and attorney work-product doctrine and that the production of a privilege log would violate the Client’s Fifth Amendment privilege against compelled self-incrimination.

The Government filed a motion to compel the Law Firm to provide a privilege log identifying the withheld documents, arguing that without the privilege log, assertion of the attorney-client privilege and attorney work-product doctrine could not be evaluated. The Client intervened in the motion and argued that the Law Firm cannot provide the requested privilege log because it would violate his Fifth Amendment privilege against compelled self-incrimination.

The U.S. District Court for the Central District of California ruled that because the Law Firm could not assert the Client’s Fifth Amendment privilege, it granted the Government’s motion to compel. However, the District Court granted a stay on the production of the privilege log to allow for an interlocutory appeal. The Client filed a timely interlocutory appeal.

Analysis

The issue of first impression before the Court was whether an attorney may be compelled to provide a privilege log regarding documents that are purportedly protected under Fisher v. United States, 425 U.S. 391 (1976), to the Government. Because this issue involved the application of the Fifth Amendment privilege against compelled self-incrimination and the scope of the attorney-client privilege, the Court applied the de novo standard of review. United States v. Bright, 596 F.3d 683 (9th Cir. 2010); United States v. Richey, 632 F.3d 559 (9th Cir. 2011). The Court also found, as an initial matter, that it had jurisdiction to review an interlocutory appeal challenging a grand jury subpoena directed at an individual’s former attorney who is a third-party custodian of privileged documents. Perlman v. United States, 247 U.S. 7 (1918); United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999) (a client “need not wait for the third party to first receive a contempt citation to bring an appeal”).

“The Fifth Amendment grants persons the privilege not to provide the State with self-incriminatory evidence of a testimonial or communicative nature.” United States v. Bright, 596 F.3d 683 (9th Cir. 2010). This privilege extends to the “act of producing evidence in response to a subpoena” because the act of production has “communicative aspects of its own, wholly aside from the contents of the papers produced.” Fisher. “By producing documents in compliance with a subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic.” In re Grand Jury Subpoena, dated April 18, 2003, 383 F.3d 905 (9th Cir. 2004) (citing United States v. Hubbell, 530 U.S. 27 (2000)). The Fifth Amendment’s protection against such compelled incriminating admissions is known as the “act-of-production privilege.” See Bright.

However, under the “foregone-conclusion exception,” if the Government can independently determine the existence, authenticity, and client’s custody of the documents in question so that producing them would not reveal any additional incriminating evidence, the Fifth Amendment does not protect the individual against the documents’ production,” the Court noted. See Fisher; United States v. Doe, 465 U.S. 605 (1984). 

In Fisher, 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,” according to the Court. That is, if the documents are protected by the Fifth Amendment in the client’s custody and are transferred to the client’s attorney for the purpose of obtaining legal advice, then the attorney cannot be compelled to produce the documents because the attorney-client privilege serves as a shield to protect the client’s Fifth Amendment rights. This is often referred to as the “Fisher privilege.” Importantly, the Court explained that it is the attorney-client privilege that protects against the compelled disclosure, not the Fifth Amendment because it protects against self-incrimination and thus an attorney cannot invoke a client’s Fifth Amendment privilege.

Turning to the present case, the Court observed that Fisher and its progeny do not address the precise question before it, viz., “whether an attorney may be compelled to provide the Government with a privilege log identifying those documents.” The Government’s position was that the Law Firm must provide the privilege log so that it and the District Court can assess the claim of privilege. In contrast, the Client argued that compelling the production of the privilege log would jeopardize his Fifth Amendment act-of-production privilege.

The Court agreed with the Client, reasoning that “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.” The Court explained that the privilege log would reveal the existence, authenticity, and the Client’s custody of the documents in question. See In re Grand Jury Subpoena, dated April 18, 2003 (holding that a privilege log identifying the attorney and client, the nature of the document, all persons to have received or sent the document, and the date the document was prepared was sufficient to evaluate the applicability of the attorney-client privilege).

But revealing those three conditions would eliminate the Client’s ability to successfully assert the act-of-production privilege because the foregone-conclusion exception would apply, the Court further explained. Fisher; see Doe. Consequently, if the Government were to receive the privilege log and then subpoena the Client for the documents listed in the privilege log, the Client would not be entitled to assert the act-of-production privilege because the three conditions needed to trigger the foregone-conclusion exception would be contained in the privilege log, the Court stated. Thus, the Court declared: “To protect Client’s Fifth Amendment right and the attorney-client privilege, we hold that the district court may not require Law Firm to provide the Government with a privilege log of documents protected under Fisher.”

Conclusion

The Court instructed that on remand, the District Court is not required to accept the Client’s and the Law Firm’s naked assertions that the documents in the latter’s possession are protected under Fisher, adding that the District Court may utilize various methods to protect the alleged privileged communications while still examining them to determine whether the material is in fact privileged.

The Court advised that the District Court must determine whether the documents at issue were transferred “for the purpose of obtaining legal advice.” Fisher; see In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021) (recognizing that, in the tax context, some attorney-client communications may not be for the purpose of obtaining legal advice). Additionally, the District Court must consider whether the documents would be privileged in the Client’s custody. Fisher.

Accordingly, the Court reversed the District Court’s decision and remanded with instructions. See: In re Grand Jury Subpoena, dated July 21, 2023, 127 F.4th 139 (9th Cir. 2025).  

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