Any lawyers care to weigh in on Stepian using the Fifth Amendment on a document subpoena?

[Gothmog]

27. Here is a good explanation of the Act of Production doctrine

Generally the act of production and the concept of testimony by production only applies when (i) when the existence of the document in questions is unknown and (ii) the act of producing the document is in effect testimony as to the accuracy, authenticity and authorship of the document. If the existence of the document in question is a foregone conclusion, then the act of production privilege does not exist. Here is a good explanation of this concept http://www.lrrlaw.com/files/Uploads/Documents/Gilson_ActofProduction_CrimLitNL.pdf

Both Kelly and Septien rely on the Hubble case where Webster Hubble produced 13,000+ pages of documents that the government could not describe adequately to subpoena such documents that were produced pursuant to a grant of immunity. The SCOTUS held that the government did not prove that it was not a forgone conclusion that these document existed. http://sol.lp.findlaw.com/1999/hubbell.html

Here, by way of the contrast, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by the respondent." Thus, "[w]hatever the scope of this ‘foregone conclusion’ rationale, the facts of this case plainly fall outside of it."

In short, Hubbell’s act of producing the subpoenaed documents pursuant to an immunity order and of answering the standard custodial questions as to whether he had produced all of the requested documents, fell squarely within the ambit of Kastigar. Accordingly, the Government would have to meet the stringent Kastigar test in order to proceed to trial. This the Government was, by its own admission, unable to do.

I think that the existence of e-mails from a private account used by Kelly and Spetien are foregone conclusions and that the act of production doctrine does not apply. I really doubt that the act of production doctrine will protect these documents in that the government knows that Septien and Kelly had sent e-mails on this topic and there are other e-mails that are in existence.

The next step will be to litigate the extent of this privilege and I doubt that Septien and Kelly will win this issue