As applied to the production of documents, those prepared voluntarily are not protected by the Fifth Amendment unless the act of producing said documents is ‘testimonial and incriminating, because the “act of production” may convey information as to the existence, authenticity and possession of evidence. See Fisher v. U.S., 425 U.S. 391, 410 (1976), and U.S. v. Hubbell, 530 U.S. 27, 36 (2000)

In U.S. v. Doe, 465 U.S. 605, 612-14 (1984), the act of producing voluntary prepared papers was held protected by the Fifth Amendment because the act would necessarily admit existence, defendant’s control, and authenticity of documents.

The Fifth Amendment also gives rise to the act of production privilege; that is, an extension of the privilege to documents that one may be forced to produce. Fisher v. United States, 425 U.S. 391 (1976). Further expanding this protection, in United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037 (2000), the Supreme Court of the United States affirmed that the privilege of asserting the Fifth Amendment may also extend to the compelled production of documents, reasoning that the act of producing subpoenaed documents may have a compelled testimonial aspect. Id. at 36, 120 S.Ct. at 2043. “In producing documents in compliance with a summons, the individual “admits that the documents exist, are in his possession or control, and are authentic.” In re Grand Jury Subpoena, 383 F.3d 905, 909 (9th Cir. 2004) (citing Hubbell, 530 U.S. at 36). “These types of admissions implicitly communicate statements of fact that may lead to incriminating evidence.” Id.

A limitation of the of this privilege is that when the existence and location of the summonsed documents are a “foregone conclusion” and “the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents, then no Fifth Amendment right is touched because the question is not of testimony but surrender.” Id. at 910 (citing Fisher v. United States, 425 U.S. at 411). To this issue, the Hubbell court started by ruling that because it was not a “foregone conclusion” that the records responsive to a broad subpoena existed or were in Hubbell’s possession, he had validly asserted his Fifth Amendment privilege under the act-of-production doctrine, which had triggered a grant of act-of-production immunity. Hubbell, 530 U.S. 27, 45, 120 S.Ct. 2037.

The (Hubbell) court concluded from the subpoena itself that the prosecutor needed Hubbell’s help to identify potential sources of information and to produce those sources. Id. at 41. According to the court, given the breadth of the description of the documents demanded by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. Id. at 41-42. The court noted that the assembly of hundreds of pages of material to respond to the single demand regarding sources of money was the functional equivalent of preparing an answer to a detailed written interrogatory or a series of oral questions at a discovery deposition. Id. The court found it undeniable that entirely apart from the contents of the materials that Hubbell produced, providing a catalog of existing documents fitting within any of the broadly worded subpoena categories could provide a prosecutor with a “lead to incriminating evidence,” or “a link in the chain of evidence needed to prosecute.” Id. at 42.