In the Courts

On Dec.19, 2013, the U.S. Court of Appeals for the Second Circuit upheld an order to compel foreign banking records under a grand jury subpoena and subsequent contempt order by the district court, rejecting the respondent's argument that the Fifth Amendment privilege against self-incrimination applied to the act of producing the records sought. In Re Grand Jury Subpoena Dated February 2, 2012, No. 12-cv-00553 (JFB), 2013 WL 6670733 (2d Cir. Dec. 19, 2013). The respondent, known as John Doe, received a grand jury subpoena for “records that the Bank Secrecy Act ('BSA') requires Doe to maintain” with respect to “any foreign bank accounts in which Doe has a financial interest.” Id. at *1. Doe challenged the subpoena, arguing that the Fifth Amendment privilege against self-incrimination applied to protect him from being being compelled by the government to produce the records requested. Id. The district court held that an exception to the Fifth Amendment privilege known as the “required records exception” applied in this case and compelled production. Id. Doe persisted in his refusal to produce the records and the district court subsequently held him in contempt. Id.

On appeal, Doe argued that the Fifth Amendment applied because compliance with the subpoena would require him to either produce documents that might incriminate him or confirm that he had violated the BSA's record-keeping requirements. Id. The argument is founded on a concept known as the “act of production doctrine,” under which “the Fifth Amendment privilege might protect an individual from being required to produce documents ' when the witness's simple act of producing the documents could be used against the witness.” Id. at *2 (citing Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)).