In Re Grand Jury Subpoena Duces Tecum.forrest Roberts, et al., Intervenors-appellants,andthomas Ruck, et al., Intervenors-appellants, 754 F.2d 918 (11th Cir. 1985)

In this appeal, a law firm and certain of its clients challenge an order of the district court that denied their motions to quash grand jury subpoenas which had directed the attorneys to produce records reflecting, inter alia, the clients' financial status, business activities, payment of taxes, and involvement in litigation. Because the Supreme Court's decision in Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976), is controlling, we affirm the order of the district court.

Identical subpoenas were served upon a law firm requesting records and documents concerning two clients, their families, and certain corporations with which the clients had some association.¹  The district court permitted the persons and corporate entities affected by the subpoenas to intervene, but after reviewing the subpoenaed materials in camera the court rejected their claim that the Fifth Amendment and attorney-client privilege barred discovery.

Addressing initially the appellants' Fifth Amendment claim, the district court correctly interpreted Fisher to hold that, since the Fifth Amendment bars only compelled self -incrimination, it does not alone preclude production by an attorney of documents concerning his client. See Fisher, supra, 425 U.S. 396-97, 96 S. Ct. 1573-74; Couch v. United States, 409 U.S. 322, 328, 93 S. Ct. 611, 616, 34 L. Ed. 2d 548 (1973) (" [T]he Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him."). Fisher acknowledged, however, that if under the circumstances the attorney-client privilege is also implicated, the Fifth Amendment can operate to provide a basis for quashing a subpoena of certain types of materials. As pronounced in Fisher, the compelled discovery of a "pre-existing" document--a document which the client has placed in the hands of his attorney, as opposed to documents which were created as communications between the attorney and the client--is barred by the attorney-client privilege " 'when the client himself would be privileged from production of the document, either as a party at common law ... or as exempt from self-incrimination....' " Fisher, supra, 425 U.S. at 404, 96 S. Ct. at 1578, quoting 8 J. Wigmore, Evidence Sec. 2307, at 592 (emphasis added). Yet the Supreme Court went on to hold that under the facts and circumstances presented in Fisher neither the contents of the subpoenaed documents nor the mere act of producing the documents involved testimonial self-incrimination. Similarly, the district court in this case expressly found that complying with the subpoenas would not implicate the intervening litigants in any compelled testimonial self-incrimination. Thus, implicitly assuming that the attorney-client privilege existed with respect to subpoenaed pre-existing documents, the district court concluded that the appellants were not entitled to Fifth Amendment protection.

The district court then reviewed the contents of each file of subpoenaed materials to determine whether any of the documents both had been created as communications between the attorneys and their clients and otherwise satisfied the prerequisites for protection under the attorney-client privilege. Among the subpoenaed materials, the court found only two letters from the attorneys to their clients which were held protected from discovery. Other items were ruled outside the scope of the subpoenas as drafted and are not at issue in this appeal.

The appellants contend that the recent Supreme Court decision in United States v. Doe, --- U.S. ----, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984), rendered the ruling in Fisher no longer viable. In Doe, the target of a grand jury investigation challenged subpoenas similar in subject matter to, but more extensive than, the subpoenas the appellants challenge here. Since in Doe the target himself received the subpoenas and the documents were in his possession, no attorney-client privilege was at issue. Nevertheless, the Supreme Court expressly followed selected portions of its analysis in Fisher and questioned whether the mere act of production would implicate the appellant in any testimonial self-incrimination. In Fisher, the Supreme Court had concluded that, regardless of how incriminating the contents of the subpoenaed documents were, the act of producing them would not involve testimonial self-incrimination. 425 U.S. at 410-11, 96 S. Ct. at 1580-81. In Doe, however, the district court had expressly found that the act of producing the documents would involve testimonial self-incrimination since, by producing the subpoenaed documents, the appellant would admit that the records existed, were in his possession, and were authentic. In re Grand Jury Empanelled March 19, 1980, 541 F. Supp. 1, 3 (D.N.J. 1981). The Court of Appeals had affirmed this finding, In re Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 335 (3d Cir. 1982), and the Supreme Court declined to overturn the lower courts. 104 S. Ct. at 1243.

The Doe decision does not alter the ruling in Fisher. By contrast, it reaffirms one aspect of Fisher: the act of production alone can constitute self-incriminating testimony if it forces the subject of the subpoena to admit the existence of the subpoenaed documents, his possession and control of the documents, and their authenticity. In the instant case, however, the district court found that complying with the subpoenas would not implicate the appellants in any compelled testimonial self-incrimination.²  The appellants have not challenged this finding as erroneous, and we decline to overturn sua sponte. The order of the district court is AFFIRMED.