United States v. Sideman & Bancroft, LLP
2013 U.S. App. LEXIS 468
9th Cir.2013Background
- The IRS is investigating Mary Nolan for possible tax evasion and false declarations for 2005–2008; a search warrant was executed but Nolan’s documents were not found at the search locations.
- Fouts, Nolan’s tax preparer, obtained Nolan’s 2007–2008 documents and later handed them to Guadagni, Nolan’s civil tax attorney, who then gave them to Sideman, Nolan’s IRS criminal investigation counsel.
- The IRS issued a summons to Sideman seeking Nolan’s 2007–2008 documents, which Sideman refused to produce on Fifth Amendment grounds.
- The district court granted enforcement of the summons, applying the foregone conclusion exception to Nolan’s Fifth Amendment rights, and Sideman appealed the scope after the court struck non-specific language from the summons.
- The government presented Fouts’s declaration detailing her familiarity with Nolan’s documents and the documents’ locations and characteristics to support existence, possession, and authenticity.
- The panel affirmed the district court, holding the foregone conclusion exception applied because the government had independent knowledge of the documents’ existence, possession, and authenticity, and that Nolan’s act of production immunity was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the foregone conclusion exception applies | Sideman: Fifth Amendment shields production; documents’ existence and possession foregone. | IRS: independent knowledge of existence, authenticity, and possession supports foregone conclusion. | Foregone conclusion applies; district court correct. |
| Whether existence and possession of the summoned documents were established | Sideman: government lacked precise knowledge of documents’ existence/possession. | IRS had substantial, specific information from Fouts and Guadagni about boxes, folders, and contents. | Existence and possession not clearly erroneous; established. |
| Whether authenticity of the summoned documents can be independently verified | Sideman: authenticity cannot be independently verified without production. | Fouts’s familiarity and other corroboration (billing, bank records) suffice for independent authentication. | Government can independently authenticate; not clearly erroneous. |
| Whether act-of-production immunity was required before compelled production | Sideman: immunity needed to avoid tacit authentication; precedents require protective order. | Foregone conclusion does not require act-of-production immunity; production can proceed. | Immunity not required; foregone conclusion satisfied. |
Key Cases Cited
- United States v. Bright, 596 F.3d 683 (9th Cir. 2010) (foregone conclusion and Fifth Amendment production)
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (attorney-client privilege and production implications)
- In re Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905 (9th Cir. 2004) (existence and possession of documents; foregone conclusion)
- Doe v. United States, 465 U.S. 605 (U.S. 1984) (foregone conclusion and authentication considerations)
- In re Grand Jury Proceedings, Subpoena for Documents, 41 F.3d 377 (8th Cir. 1994) (authentication and possession considerations)