Understanding the Fifth Amendment Act of Production Doctrine

Dmitriy Smirnov

January 27, 2026

Firm News

A Practical Guide from Fridman Fels & Soto LLP

Federal investigations focused on white collar crime and regulatory enforcement nearly always begin with compulsory demands for documents. At Fridman Fels & Soto LLP, we routinely advise clients who receive grand jury subpoenas, SEC subpoenas, and other regulatory document requests. A critical constitutional protection in this space is the Fifth Amendment’s Act of Production doctrine. While many may only recognize the Fifth Amendment as a privilege protecting testimony from the witness stand, it extends to situations in which producing responsive documents would alone communicate incriminating information.

The Contents of Documents Are Not Privileged

The Fifth Amendment protects a person from being compelled to testify against themselves. However, it does not protect the contents of preexisting documents that a person voluntarily created. The Supreme Court made this clear in Fisher v. United States, holding:

“The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence. It only protects the person asserting the privilege from compelled self-incrimination. It does not protect the contents of preexisting documents which are not compelled to be prepared.”

Fisher, 425 U.S. 391, 408 (1976). 

The United States v. Hubbell Court reaffirmed this rule, stating, “The privilege protects a person only against being incriminated by his own compelled testimonial communications. The contents of the documents are not privileged.” 530 U.S. 27, 34–35 (2000). The Eleventh Circuit follows this view. In In re Grand Jury Subpoena Duces Tecum, the court explained, “The Fifth Amendment privilege does not protect the contents of voluntarily prepared documents because the creation of those documents was not compelled.” 670 F.3d 1335, 1343 (11th Cir. 2012).

For clients facing SEC enforcement or criminal investigations, this means that emails, spreadsheets, account statements, trading records, and internal memos are not privileged, at least not in their content.

Why the Act of Production Can Be Testimonial

However, even though the content of documents is not protected, the act of producing them may be. Producing documents can implicitly communicate three testimonial assertions:

1. The documents exist.
2. The documents are in the person’s possession or control.
3. The documents are authentic.

Courts have also recognized that production implicitly conveys that the producing party believes the documents produced are the documents responsive to the subpoena.

In Fisher, the Court recognized that, “Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control.” 425 U.S. at 410. The Court also recognized that, “The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”
Id.

Hubbell broadened the point. Responding to a sweeping subpoena requiring the assembly of more than 13,000 pages, the Court concluded: “The assembly of [the documents] was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” 530 U.S. at 43. In particular, the court explained that “[i]t was unquestionably necessary for [Hubbell] to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests.” Id. The argument that a subpoena compels a responding party to “use the contents of his mind” in identifying responsive documents is an oft-cited basis for invoking the Act of Production privilege. 

Notably, the Eleventh Circuit applies this same principle to digital evidence. In Grand Jury Subpoena Duces Tecum, the court held, “The decryption and production of the hard drives would communicate that he had access to and control over the encrypted files.” 670 F.3d at 1346.

The Foregone Conclusion Doctrine

The government may, however, defeat an act of production privilege if it already knows the testimonial aspects of production. As Fisher put it:

“The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.”

425 U.S. at 411. Hubbell limited the doctrine, applying the foregone conclusion rationale “only when the Government can show with reasonable particularity that it already knew of the materials.” 530 U.S. at 45. And the Eleventh Circuit has adopted an especially strict version: “The Government has not shown that it knows with reasonable particularity the existence or location of any particular files. It cannot rely on the foregone conclusion doctrine.” Grand Jury Subpoena Duces Tecum, 670 F.3d at 1347. 

Other courts have applied the foregone conclusion doctrine more flexibly where the universe of documents is objectively determinable and the documents can be independently authenticated by third parties, but the Eleventh Circuit’s approach reflects a particularly demanding application of the doctrine. See also SEC v. Charnas, 717 F. Supp. 3d 1233, 1236–41 (S.D. Fla. 2024) (affirming denial of SEC’s application and holding that requiring a witness to identify devices, run search terms, apply date filters, and compile surrounding text messages was testimonial and that the SEC failed to satisfy the foregone‑conclusion doctrine because it lacked reasonable particularity and independent means of authentication)

In practical terms, this means that in securities or white collar cases, prosecutors cannot demand wholesale production of electronic files when they cannot already identify what they seek.

The Required Records Exception

At Fridman Fels & Soto, we regularly represent financial advisors, broker‑dealers, investment advisers, and other securities industry professionals who are subject to extensive books and records obligations under the Securities Exchange Act of 1934 and corresponding SEC and FINRA rules. These regulatory regimes impose affirmative duties to create and maintain particular categories of documents, including communications with customers, trading records, blotters, financial statements, supervisory records, and other materials that must be preserved for inspection. When a client in a regulated industry invokes the Fifth Amendment, one of the first analytical questions we must address is whether any of the materials demanded fall within the Required Records Exception.

The Required Records Exception originated in Shapiro v. United States, where the Supreme Court held that the Fifth Amendment does not protect documents that an individual must maintain under a valid regulatory scheme. The Court explained that records kept pursuant to statute have “public aspects” and are therefore treated differently from personal papers for Fifth Amendment purposes. The modern test asks whether:

1. The government’s inquiry is essentially regulatory.
2. The records are of a type customarily kept.
3. The records have assumed public aspects.

The presence of a regulatory regime alone does not, however, automatically satisfy this exception, and courts continue to examine these elements carefully even in heavily regulated industries.

While we represent clients all over the country, most reside in Florida—in the Eleventh federal circuit—and New York. The following cases analyze the Required Records Exception in federal courts in Florida and New York.

Eleventh Circuit: In re Grand Jury Proceedings (2013)

The Eleventh Circuit’s decision in In re Grand Jury Proceedings, 707 F.3d 1262 (11th Cir. 2013), provides one of the most detailed applications of the Required Records Exception. The case involved subpoenas for foreign bank account records that individuals were required to keep under the Bank Secrecy Act (BSA). The court held that these documents were not privileged because they met all three elements of the exception. The BSA, explained the court, was “essentially regulatory” and not criminal in nature, even though the information might be useful in criminal investigations. The required records were “basic account information that bank customers would customarily keep” and were therefore within the second prong. Finally, because federal regulations required the records to be maintained and available for inspection, they had “public aspects” analogous to public documents. The Eleventh Circuit therefore held that the Fifth Amendment did not protect the records or the act of producing them. 

This case is particularly instructive for our clients in financial services. When a regulatory regime requires books and records as a condition of participation in the market, those records generally fall outside the Fifth Amendment protections, even when production might be self‑incriminating. For investment advisers and broker‑dealers, this logic applies directly to Exchange Act Rule 17a‑3, Rule 17a‑4, Advisers Act Rule 204‑2, and FINRA Rule 4510, all of which impose mandatory recordkeeping obligations.

Southern District of New York: SEC v. Collector’s Coffee (2020)

The decision in SEC v. Collector’s Coffee Inc., 2020 WL 1974218 (S.D.N.Y. Apr. 24, 2020), applies the Required Records Exception in the SEC enforcement context. There, the SEC sought tax returns and real property records from a defendant who attempted to resist production by asserting the Fifth Amendment. The court held that tax returns and related financial documents qualified as required records. The court explained that tax returns are “required records” because taxpayers must file them and customarily keep copies, and because courts have repeatedly held that “not only do the contents of tax returns fall within the required records exception, but the compelled act of production of tax returns is not considered to be subject to the Fifth Amendment privilege.” The court rejected the argument that a taxpayer is only required to file returns but not required to keep copies, noting that copies are “customarily” retained and therefore satisfy the standard. 

Although the court declined to enforce the SEC’s request for real property documents due to a failure in the SEC’s briefing, the opinion underscores an important point: when individuals participate in regulated activity that carries mandatory reporting or recordkeeping duties, even potentially incriminating documents may fall within the Required Records Exception.

Why This Matters for Regulated Financial Professionals

For financial advisors and other regulated industry participants, these principles have concrete consequences. When the SEC, FINRA, or a grand jury seeks documents that must be kept under the Exchange Act’s books and records requirements, a Fifth Amendment act‑of‑production assertion is unlikely to succeed. Courts routinely hold that such documents fall squarely within the Required Records Exception for three reasons:

Securities regulation is “essentially regulatory” in the same way the Bank Secrecy Act is. The records demanded are the very materials firms and individuals must “customarily keep” to comply with federal securities laws. Required retention and inspection obligations give these records clear “public aspects.”

By contrast, requests that extend beyond required records or that demand judgment‑based searches, filtering, or compilation of electronic data may still implicate Act of Production protections, even for regulated professionals.

Compelled Decryption and the Act of Production Doctrine

With nearly all modern devices encrypted by default nowadays, compelled decryption has become the frontline application of the Act of Production doctrine.

The Eleventh Circuit’s leading case, In re Grand Jury Subpoena Duces Tecum, held that compelling a suspect to decrypt devices is a testimonial act because it communicates possession, control, and authentication of the files. The court stressed that the government’s failure to identify any file with reasonable particularity doomed its attempt to compel decryption.

Courts in other circuits have taken a different view. The Third Circuit in Apple Mac Pro Computer upheld compelled decryption on specific facts where agents generally knew the devices contained child pornography. State courts, such as Massachusetts in Gelfgatt, have similarly allowed decryption when the defendant’s control was independently established. The key Supreme Court guidance, however, remains Fisher and Hubbell: Decrypting a device is like “telling an inquisitor the combination to a wall safe,” not merely “surrendering a key.”

As encryption becomes standard, this doctrine applies not only to phones, laptops, and cloud backups but also to cryptocurrency wallets and blockchain-based financial records.

Conclusion

The Act of Production doctrine remains one of the most powerful tools available to individuals navigating federal investigations. For clients of Fridman Fels & Soto LLP, particularly in SEC enforcement and white collar matters, these protections often determine the government’s ability to compel broad document production or decrypt digital evidence.

Contact Fridman Fels & Soto LLP for Legal Assistance Responding to a Subpoena 

If you receive a DOJ grand jury subpoena, an SEC subpoena for documents or testimony, a FINRA 8210 request or a similar inquiry from a state regulator, it is essential to act immediately. Contact Fridman Fels & Soto, PLLC to speak with an experienced defense attorney. Prompt action is critical to protect your rights.

Alejandro Soto is a former federal prosecutor and senior official with the SEC. He leads Fridman Fels & Soto, PLLC’s White Collar and SEC Defense Practice Groups and is admitted in Miami, FL and Washington, DC.