Huzhou Chuangtai Rongyuan Investment Management Partnership v. Qin

Background

The petitioners moved to compel documents from third-party Emma Duo Liu under a June 9, 2023 subpoena. The subpoena sought 20 categories of documents. Liu had not produced any responsive documents and argued that the subpoena was extraordinarily broad and that the Fifth Amendment privilege against self-incrimination, including the protection for the act of producing documents, and spousal privilege excused compliance.

The court explained that the subpoena arose from post-judgment discovery. Under Federal Rule of Civil Procedure 69(a)(2), discovery may be used to help collect a judgment, including information about assets held by a nonparty when the relationship between the judgment debtor and the nonparty raises reasonable doubt about whether assets were transferred legitimately. The court found that the allegations concerning Liu’s relationship with respondent Hui Qin met that standard. It also noted that the parties’ lawyers had met and conferred to clarify the requested materials.

Fifth Amendment Analysis

The act-of-production doctrine can protect the act of producing documents when production implicitly admits that the documents exist, are in the producer’s possession or control, or are authentic, and those admissions are testimonial and incriminating. The court described the Second Circuit’s two-part approach: determine whether production would be testimonial, then determine whether the production would incriminate the person producing the documents.

The court identified documents outside that protection in several groups:

- Records of collective entities, including records held by Liu in a representative capacity, could not receive Liu’s personal Fifth Amendment protection. This included documents responsive to Requests 1(ii), 2(c), 9, 11, 12, and 20, as well as records belonging to the trusts identified in Request 3. - Certain regulatory documents fell within the “required records” exception, which removes act-of-production protection from documents that must be maintained under law. The court identified passports and Form I-94 immigration records under Request 4; Form W-2s, Form 1099s, or equivalents under Requests 5, 7, and 13; and certain vehicle, mortgage, and divorce records under Requests 10, 11, and 16 when Liu was required by law or regulation to maintain them. - The deed of gift sought in Request 6 was covered by the “foregone conclusion” exception. Petitioners had independently established the deed’s existence, Liu’s control of it, and its authenticity because Liu had previously emailed a copy to Qin’s counsel.

The court stated that the remaining subpoenaed documents might or might not be protected, but Liu’s blanket assertion of privilege was insufficient. She had to assert the Fifth Amendment privilege for particular documents and explain the basis for each assertion.

Ruling and Required Submissions

The court ordered Liu to produce, by October 6, 2023, all responsive documents identified in the order as outside the Fifth Amendment privilege. It stated that it was granting the petitioners’ motion to compel to that extent.

For documents not otherwise covered by the order, the court ordered Liu to file, by October 13, 2023, a letter identifying for each subpoena request the responsive documents in her possession or control and the reasons the Fifth Amendment applied to producing each specific document. The court permitted Liu, when necessary, to file that letter privately and under seal.

The court also required any spousal-privilege claim to be made document by document through a privilege log identifying the basis for each claim. It cautioned that spousal privilege could apply only to the limited category of confidential communications between Liu and Qin during the marriage, and even then might not apply. The Clerk of Court was directed to terminate the motion at docket entry 266.