I am on a number of discussion lists as a lawyer. On one of them, the issue of responding to subpoenas by a non-target was discussed. Essentially, the issue posed was this: Non-target receives a subpoena for documents and it is (as most are) extremely broad. So you call the AUSA who issued it and the USA tells you over the telephone what the government is looking for and verbally agrees to accept a limited response (but reserves the government’s rights to seek more if necessary). In this situation, what are the Fifth Amendment rights? Have you waived them? Have you in fact testified by producing documents?
As a fundamental principle, there is no Fifth Amendment privilege in documents. There is a Fifth Amendment privilege to only what your client says out of his mouth. However, there is something called the “act of production” which is the functional equivalent of client testimony. That testimony is that the documents exist, they are authentic and they are in your client’s possession.
There are more pitfalls. One good place to review the current state of the law is in this law review article:
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