In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011 USA v. Doe

This was an appeal of a judgment of civil contempt that arose from a child pornography investigation. John Doe was served with a subpoena duces tecum requiring him to appear before a grand jury and produce the unencrypted contents located on the hard drives of Doe's laptop computer and five external hard drives. Doe informed the U.S. Attorney that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena. The court concluded that, because Doe's act of production would have testimonial aspects to it, an order to compel him to produce the unencrypted contents of the drives would require immunity coextensive with the Fifth Amendment and 18 U.S.C. 6002. Immunity coextensive with the Fifth Amendment required both use and derivative-use immunity. The Government's offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the Government to use evidence derived from the immunized testimony. Thus, because the immunity offered here was not coextensive with the Fifth Amendment, Doe could not be compelled to decrypt the drives. Therefore, the court held that Doe properly invoked the Fifth Amendment privilege and reversed the judgment of the district court. View "In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011 USA v. Doe" on Justia Law