The Record, a California legal publication, reports on oral argument in a case involved the act of production doctrine which says, in effect, that although the contents of documents may not be privileged, a witness under compulsion to produce the documents via subpoena or summons still has a Fifth Amendment privilege as to the testimony inherent in responding to a document summons. Scott Graham, 9th Circuit Sounds Skeptical on Privilege Claim for Tax Records (The Recorder 9/13/12), here. The trial court ordered compliance with the IRS summons over the claim of the act of production privilege.
If the Government proves the existence and possession of the documents is a foregone conclusion, then there is no testimonial value in the compelled party's production of the documents. Well, "no testimonial value" is a bit of an overstatement; there is little testimonial value. But, what little testimonial value there is can yield to the Government's need for the documents, otherwise by asserting the Act of Production privilege the witness might shut down the investigation. (Of course, this is true anytime a privilege is asserted, but that does not mean the privilege does not apply.) The Government does have a work-around in many cases -- it can obtain some of these documents by search warrant. Indeed, some courts would use the search warrant test as to the test for when the Government has shown that the "foregone conclusion" test is met.
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