UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT In Re Grand Jury Subpoena, dated No. 24-2506 July 21, 2023 D.C. No. ____________________________ 2:23-cm-00228- FMO-1 OPINION

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted September 13, 2024 Pasadena, California

Filed January 28, 2025

Before: Michelle T. Friedland and Roopali H. Desai, Circuit Judges, and Karen E. Schreier, District Judge.*

Opinion by Judge Friedland

* The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 2 IN RE GRAND JURY INVESTIGATION

SUMMARY**

Grand Jury Subpoenas/Fifth Amendment

The panel 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, 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. 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. The panel held that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies, and that 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

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IN RE GRAND JURY INVESTIGATION 3

privilege log to be provided to the Government without any such prior process, the panel reversed and remanded.

COUNSEL Jason Poole (argued), Joseph B. Syverson, and Katie Bagley, Attorneys, Tax Division; S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section; David A. Hubbert, Deputy Assistant Attorney General; E. Martin Estrada, United States Attorney; United States Department of Justice, Washington, D.C.; Ranee A. Katzenstein, Assistant United States Attorney, Office of the United States Attorney, United States Department of Justice, Los Angeles, California; for Plaintiff-Appellee. Harvinder S. Anand (argued), Anand Law Group, P.C., Pasadena, California, for Real-party-in-interest-Appellant. Ivy A. Wang and Thomas P. O’Brien, Greenberg Traurig, LLP, Los Angeles, California; Rod J. Rosenstein, King & Spalding LLP, Washington, D.C.; for Amicus Curiae Hochman Salkin Toscher Perez P.C. 4 IN RE GRAND JURY INVESTIGATION

OPINION FRIEDLAND, Circuit Judge:

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