HOUSE OVERSIGHT 031672 COVINGTON The Honorable Richard Burr The Honorable Mark R. Warner May 22, 2017 Page 3 A. If the government fails to demonstrate prior knowledge of requested subpoenaed documents, the act of producing those documents is testimonial. Two Supreme Court precedents, Fisher v. United States, 425 U.S. 391 (1976) and United States v. Hubbell, as well as Hubbell's progeny, United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2oo6), inform the determination of whether a production of documents in response to a subpoena has a testimonial character. Fisher involved IRS investigations in which the government learned that the investigated taxpayers had given their attorneys tax returns prepared by their accountants in the years in question. The Court highlighted that the subpoenaed documents belonged to the accountant and not the target of the investigation, were prepared by the accountant, and are "the kind usually prepared by an accountant working on the tax returns of his client." Fisher, 425 U.S. at 411. The Court concluded that insofar as the government was not relying on the taxpayer to prove the existence of the documents, production of the documents was not "testimonial" because "the existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." Id. In contrast to Fisher, a case in which investigators already knew that documents existed and exactly where they were located, the investigators in Hubbell lacked "any prior knowledge of either the existence or the whereabouts" of the subpoenaed materials. Hubbell, 530 U.S. 27, 44- 45. Hubbell arose out of the Whitewater investigation, in which Independent Counsel Kenneth Starr sought broad categories of information from Webster Hubbell, a target of the investigation. The subpoena included such requests as "any and all documents reflecting, referring,