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EFTA00222938

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BLANKET ASSERTIONS OF THE FIFTH AMENDMENT, ATTORNEY-CLIENT, AND WORK PRODUCT PRIVILEGES ARE UNENFORCEABLE; THE COURT MUST BE ALLOWED TO JUDGE EACH ASSERTION ON ITS FACTS In his motion, Epstein asserts that all of the items called for by the subpoenas will violate his Fifth Amendment privilege, the attorney-client privilege, and the work product doctrine. He also implicitly asserts that any question addressed to the witnesses would violate these privileges and, therefore, the witnesses cannot be compelled to appear before the grand jury. -F1 These blanket assertions are not authorized and undermine the Court's ability to make an independent evaluation of the applicability of the privileges. With respect to the Fifth Amendment privilege against self-incrimination, the protection does not cover every instance where the target of an investigation is called to testify or produce documents. Instead, the protection of the Fifth Amendment is confined to instances where the witness "has reasonable cause to apprehend danger" of criminal prosecution. HoffmanI United States , 341 U.S. 479, 486 (1951). "The central standard for the .. . application of the Fifth Amendment is whether the claimant is confronted by substantial and `real,' not merely trifling or imaginary, hazards of incrimination." Marchetti I United States , 390 U.S. 39, 53 (1968). Furthermore, a witness is not exonerated from answering questions merely because he declares that in so doing he would incriminate himself - his say-so does not itself establish the hazard of incrimination. It is the role of the court, not the witness, to evaluate the witness's claim of incrimination and determine whether it is reasonable. In evaluating the validity of a witness's invocation of Fifth Amendment privilege against self- incrimination, the court must make a particularized inquiry, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-foun

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