Constitutional Law,
9th U.S. Circuit Court of Appeals
Feb. 6, 2025
9th Circuit hooks government on Fisher privilege
The Ninth Circuit ruled that an attorney invoking the Fisher privilege can't be forced to produce a privilege log, as it would reveal incriminating facts and undermine the client's Fifth Amendment rights.
Dmitry Gorin
Partner, Eisner Gorin LLP
Alan Eisner
Partner, Eisner Gorin LLP
Robert Hill
Associate, Eisner Gorin LLP
Under the Supreme Court's 1976 decision in Fisher v. United States, a criminal suspect can sometimes assert an "act of production" Fifth Amendment privilege against self-incrimination to resist the government's attempt to require production of documents. Unlike the privilege against compelled statements, the act of production privilege is quite narrow in practice. Where the government can independently establish existence, authenticity, and the suspect's custody of the...
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