The White Collar Appeal: Second Circuit Enforces Grand Jury Subpoena Based on Foregone-Conclusion Exception

• A recipient of a grand jury subpoena cannot assert the Fifth Amendment act-of-production privilege where it is a “foregone conclusion” that the documents exist, are in the subpoena recipient’s possession, and are authentic.

• In In re Grand Jury Subpoena Dated May 29, 2025, the Second Circuit affirmed an order applying the foregone-conclusion exception where the subpoena recipient’s attorney, using “noncommittal words and phrases,” confirmed all three elements of the exception.

• The decision serves as a reminder for defense counsel representing subpoena recipients to exercise caution when discussing what their client may possess. 

Background

A subpoena recipient’s Fifth Amendment privilege against self-incrimination is narrow.  Because the Self-Incrimination Clause applies only to compelled self-incrimination that is “testimonial” in nature, only the testimonial aspects of producing documents fall within the scope of the privilege.  The Supreme Court has held that producing a document in response to a grand jury subpoena implicitly communicates that (1) the document exists; (2) the recipient has possession of the document; and (3) the document is authentic.  Only if one or more of those implicit communications would be incriminating is a subpoena recipient entitled to assert the so-called “act-of-production privilege” under the Fifth Amendment.

In re Grand Jury Subpoena Dated May 29, 2025—a summary order on a sealed record—is short on details, but it makes the following facts clear.  The U.S. Attorney’s Office served a subpoena on the appellant seeking “draft reports” related to the appellant’s former employment.  The appellant’s attorney disclosed information to the government regarding the documents’ location and their content.  Specifically, the attorney told the government that his client had produced the documents to him and that he had returned them to his client. He also provided details concerning the content of the documents.  According to appellant’s attorney, he did so using only “noncommittal words and phrases,” but the AUSA’s and her law-student intern’s contemporaneous notes reflected that he had spoken with sufficient clarity for the district court to find that the attorney “spoke in a declarative tone and not a hypothetical one regarding his possession of the” subpoenaed documents.  And when, following these discussions, the grand jury issued a subpoena compelling production of the records, the recipient asserted the act-of-production privilege.

On this record, however, the district court held that the recipient had no act-of-production privilege, because the government was able to establish with reasonable particularity that (1) the documents exist; (2) the subpoena recipient had possession of them; and (3) the government was able to authenticate the documents independently. Because the government already could prove each of the implicit testimonial communications inherent in the recipient’s production of the documents, the foregone-conclusion exception to the act-of-production privilege applied, and the subpoena recipient could not invoke the Fifth Amendment.

Holding

The Second Circuit affirmed in a summary order. Notwithstanding the appellant’s attorney’s claims that he used noncommittal language, the court found no clear error in the district court’s finding that the attorney had conceded the existence and his client’s possession of the documents.  Moreover, the court agreed that the government had made a sufficient showing that it could establish authenticity independent of the implicit communication that would result from the subpoena recipient’s production of the document.  Specifically, “the government could call another employee who was familiar with the report, ask the trier of fact to compare the filed and draft versions of the report, call a witness familiar with Sealed Appellant’s handwriting, or call a handwriting expert.”  As a result, the government had established with reasonable particularity—meaning “more than a mere inference”—that it could demonstrate all three of the testimonial aspects of the recipient’s production of the documents. 

Key Takeaway

Don’t be cute when discussing what documents your client has.  Defense counsel’s discussion of his client’s documents ultimately proved fatal to the invocation of the act-of-production privilege.  Counsel thus should balance the desire to be cooperative with the government against the possibility that the government might weaponize anything counsel says, even in “noncommittal” language in informal meetings.  Attorneys should assume that prosecutors and the courts will construe wink-wink “hypothetical” discussions as declarative representations.  So unless they are prepared to deal with the consequences that may flow from a disclosure, attorneys should avoid discussing information that they are not prepared to represent directly.  And where counsel truly is discussing a hypothetical, they should make clear that they genuinely do not know whether what they are saying is true or not.