In In Re Grand Jury Subpoena, dated July 21, 2023, --- F.4th ---, No. 24-2506 (9th Cir. 2025), the Court reversed the district court’s order compelling a law firm to provide the Government with a privilege log of documents that the law firm’s client asserts are protected under Fisher v. United States, 425 U.S. 391 (1976), and remanded for further proceedings.
In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court held that when the Fifth Amendment protects an individual from the compelled production of documents and the individual shares those documents with his attorney to obtain legal advice, the attorney-client privilege shields the attorney from compelled production of those documents to the government. Id. at 404–05. But if the government can already independently determine the existence, authenticity, and client’s custody of those documents such that the act of producing them would reveal no additional incriminating information, the Fifth Amendment does not protect the individual against the documents’ production, and the Fisher privilege accordingly does not apply. See id. at 410–11; United States v. Doe, 465 U.S. 605, 614 n.13 (1984).We consider here the novel question whether an attorney may be compelled to provide the government with a privilege log of documents that he asserts are protected under Fisher. We hold that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies. To determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the Government without any such prior process, we reverse and remand.A privilege log is generally an appropriate method for protecting privileged material. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 1989)). But here, if Law Firm were to provide the Government with a privilege log, that privilege log would reveal the existence, authenticity, and Client’s custody of those documents. See id. (holding that a privilege log identifying the attorney and client, the nature of the document, all persons to have received or sent the document, and the date the document was prepared was sufficient to evaluate the applicability of the attorney-client privilege). And, as explained, no Fifth Amendment act-of-production privilege applies when the existence, authenticity, and client’s custody of the documents “are a foregone conclusion.” Fisher, 425 U.S. at 410–11; see Doe, 465 U.S. at 614 n.13. If the Government were to receive a privilege log from Law Firm and then subpoena Client for the documents described in that privilege log, the documents would be subject to the foregone-conclusion exception, and Client would no longer be able to assert the act-of-production privilege. See Fisher, 425 U.S. at 411. Put simply, were Law Firm to provide the Government with a privilege log detailing documents to which the Fisher privilege applies, Client would lose any Fifth Amendment right to decline to produce the documents identified therein.On remand, the district court need not accept Client’s and Law Firm’s bare assertions that the documents in Law Firm’s possession are protected under Fisher. “A number of methods and procedures are available to protect” privileged communications. Dole, 889 F.2d at 890. For example, the district court may order Law Firm to prepare and provide to the court the relevant portion of a privilege log and associated documents for in camera review so the court can determine whether the documents are in fact privileged under Fisher.
