Attorney Admissions and the Foregone-Conclusion Doctrine in Grand Jury Subpoenas: Commentary on In re Grand Jury Subpoena Dated May 29, 2025 (2d Cir.)

I. Introduction

This commentary analyzes the United States Court of Appeals for the Second Circuit’s summary order in In re Grand Jury Subpoena Dated May 29, 2025, No. 25‑1726 (2d Cir. Dec. 16, 2025). Although issued as a nonprecedential summary order, the decision offers a detailed and concrete application of the Fifth Amendment’s “act-of-production” privilege and the foregone-conclusion doctrine in the context of a grand jury subpoena for draft reports prepared by a former employee.

The case involves a “Sealed Appellant” who, as a former employee of some entity, possessed draft reports “arising out of [his] former employment.” A grand jury in the Southern District of New York issued a subpoena for those draft reports. The appellant refused to comply, arguing that producing the drafts would violate his Fifth Amendment privilege against compelled self-incrimination because the act of production itself would be testimonial and incriminating. After the district court (Judge Katherine Polk Failla) ordered compliance and then held the appellant in contempt for defying that order, the appellant sought review in the Second Circuit.

The central legal question was whether the “act of production” privilege applied, or whether the government could invoke the foregone-conclusion doctrine to compel production without offending the Fifth Amendment. A secondary, but important, issue was how the government may establish its “knowledge” of the existence, possession, and authenticity of the sought-after documents—particularly when that knowledge derives from statements made by the target’s own attorney.

The Second Circuit (Judges Chin, Sullivan, and Nathan) affirmed the contempt order, holding that the subpoena did not violate the Fifth Amendment because the foregone-conclusion doctrine applied. The opinion is especially notable for:

Clarifying that attorney admissions to prosecutors, corroborated by contemporaneous notes and internal government documentation, can suffice to show the government’s knowledge of the existence and possession of documents for foregone-conclusion purposes.
Confirming how the government can show it will be able to authenticate subpoenaed documents independently of the act of production.
Reinforcing the requirement that a party challenging a subpoena must ordinarily incur a contempt finding to obtain appellate review.

II. Summary of the Opinion

A. Procedural History and Jurisdiction

The appellant initially attempted to appeal the subpoena’s enforcement order, but the Second Circuit dismissed that earlier appeal for lack of jurisdiction. See In re Grand Jury Subpoena Dated Apr. 26, 2023, No. 24‑573, 2025 WL 799269 (2d Cir. Mar. 13, 2025).

Following that dismissal, the appellant defied the district court’s enforcement order. The district court then held him in contempt for failing to comply with two orders requiring production of the draft reports. Once the contempt order issued, the Second Circuit held that it had jurisdiction under 28 U.S.C. § 1291, citing In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d Cir. 2007): the usual route to appeal a subpoena enforcement order is to defy it, suffer a contempt finding, and then appeal that final contempt order.

B. Merits: Fifth Amendment and the Foregone-Conclusion Doctrine

On the merits, the appellant argued that producing the draft reports would be a compelled testimonial act that would incriminate him. The court agreed with the general legal framework: under Fisher v. United States, 425 U.S. 391 (1976), the Fifth Amendment protects against compelled “testimonial” communications, and the very act of producing documents can be testimonial if it implicitly communicates facts such as the documents’ existence, location, and the producer’s control over them.

But the court held that those implicit “communications” were shielded from Fifth Amendment protection by the foregone-conclusion doctrine. Relying on Fisher, as refined by United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016), and United States v. Fridman, 974 F.3d 163 (2d Cir. 2020), the court concluded that the government had shown, with “reasonable particularity,” that it already knew:

the existence of the draft reports;
the appellant’s possession or control of them at the relevant times; and
its ability to establish their authenticity independently of the appellant’s act of production.

Because these three elements were satisfied, the court held that compelling production would not require the appellant to provide the government with any new testimonial information of constitutional significance. It thus affirmed the district court’s order and the related contempt finding.

III. Detailed Analysis of the Opinion

A. Jurisdiction Through Contempt: The Belle Harbor Principle

Before addressing the Fifth Amendment issue, the court explained how it acquired jurisdiction. Under longstanding doctrine, a subpoena enforcement order is typically not immediately appealable because it is not a final judgment under 28 U.S.C. § 1291. The usual path to appellate review is:

The subpoenaed party refuses to comply with the enforcement order.
The district court holds the party in contempt.
The party appeals the contempt order, which is treated as a final order under § 1291.

That process, reaffirmed in In re Air Crash at Belle Harbor, 490 F.3d at 104, was precisely what occurred here. The Second Circuit had dismissed the earlier, pre-contempt appeal; once contempt was imposed, jurisdiction attached. This reinforces an important procedural rule for lawyers: absent very limited exceptions, you must be prepared to accept a contempt citation—and the accompanying risk of sanctions or even incarceration—if you wish to secure appellate review of a subpoena’s validity.

B. The Act-of-Production Privilege Under the Fifth Amendment

The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” As interpreted in Fisher, this privilege:

Usually does not protect the contents of pre-existing documents, because those contents were not created under government compulsion.
Can protect the act of producing documents in response to a subpoena, if that act itself is “testimonial.” Production can communicate, for example:
- that the documents exist,
- that they are in the possessor’s control, and
- that the possessor believes they are the documents sought.

As the Supreme Court noted in Fisher, “[t]he act of producing evidence in response to a subpoena ... has communicative aspects of its own” and may therefore fall within the Fifth Amendment depending on the facts. 425 U.S. at 410. Likewise, in United States v. Doe, 465 U.S. 605 (1984), the Court recognized that producing business records could be a testimonial act, even though the contents of those records were not privileged.

The appellant in this case invoked that act-of-production principle, arguing that by turning over the draft reports he would effectively be testifying that:

the reports existed,
he had them, and
they were the specific drafts sought by the grand jury.

The Second Circuit did not dispute that, in the abstract, such testimony could be self-incriminating. But it held that a well-established exception—the foregone-conclusion doctrine—applied.

C. The Foregone-Conclusion Doctrine and Its Elements

The foregone-conclusion doctrine originates in Fisher. There, the Supreme Court held that if the government already knows certain critical facts with sufficient specificity, the act of producing documents does not add anything meaningfully testimonial. In Fisher’s words:

“The existence and location of the [subpoenaed] papers are a foregone conclusion and the [subpoena recipient] adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.”

The Second Circuit, in Fridman and Greenfield, has distilled this into a three-part test. To invoke the doctrine, the government must show, with “reasonable particularity,” that it already knows:

the existence of the specific documents;
the target’s possession or control of them at the time of the subpoena; and
that the documents can be authenticated without relying on the target’s act of production.

Crucially, the government must “know[] and not merely infer” these elements, and its proof must fall somewhere “between a ‘mere inference’ and ‘perfect knowledge.’” Fridman, 974 F.3d at 174 n.3 (emphases deleted; internal quotation marks omitted).

In Greenfield, the Second Circuit rejected the government’s foregone-conclusion claim because the government relied on old evidence about foreign accounts and could not adequately show that the records still existed or were in the defendant’s control at the time of the IRS summons. That case emphasized the government’s obligation to tie its knowledge to the time of compulsion and not rely on stale or speculative inferences.

Against that doctrinal background, the key question in In re Grand Jury Subpoena Dated May 29, 2025 was whether the government had met these three elements as to the draft reports.

D. Application of the Foregone-Conclusion Doctrine in This Case

1. Existence of the Draft Reports

On the first prong—existence—the Second Circuit endorsed the district court’s factual finding that the government already knew the draft reports existed.

The government’s knowledge derived primarily from statements made by the appellant’s attorney, Patrick O’keke, during interactions with the prosecution:

At a January 12, 2023 meeting with Assistant U.S. Attorney (AUSA) Mitzi Steiner, O’keke disclosed the existence of draft reports.
During a January 23, 2023 phone call with Steiner (in which a law-student intern participated), O’keke again referenced the draft reports and provided details about their contents and their location.

The government corroborated this testimony with multiple forms of contemporaneous documentation:

Steiner’s notes of the January 23 call;
the intern’s handwritten notes of that call;
a research assignment Steiner gave the intern regarding corporate records held by an employee; and
the subpoena Steiner subsequently issued to O’keke himself, seeking the draft reports.

The appellant argued that his attorney had used only “noncommittal” or hypothetical language when describing the drafts. The district court, however, expressly found that “O’keke spoke in a declarative tone and not a hypothetical one regarding his possession of the draft report,” a finding supported by the testimony and notes of both Steiner and the intern.

Applying the deferential standard articulated in Greenfield—under which the Second Circuit will overturn a district court’s factual finding on whether production would be testimonial “only where such a finding has no support in the record,” 831 F.3d at 114 (quoting Doe, 465 U.S. at 613–14)—the court refused to disturb this credibility determination. As a result, it held that the first prong of the foregone-conclusion doctrine was clearly satisfied.

2. Possession or Control by the Appellant

The second prong—possession or control—is often the most contested in foregone-conclusion cases, and was central in Greenfield. Here, the Second Circuit again sided with the district court, which had concluded that the draft reports:

“were first in [Sealed Appellant’s] possession, then in Mr. O’keke’s, and then returned to [Sealed Appellant].”

The record showed the following sequence:

In January 2023, O’keke told Steiner that he possessed the draft reports.
On March 2, 2023, O’keke informed the government that he had returned the appellant’s file to the appellant, including “any and all documents [Sealed Appellant] may have brought in for [O’keke’s] review.”

Less than two months later, on April 26, 2023, the government caused a grand jury to issue a subpoena to the appellant for those drafts. The court held that by that point the government had “sufficient knowledge” that the drafts were in the appellant’s possession.

The opinion specifically cites Fridman for the proposition that the government must prove its knowledge of existence and control “at the time the summons was issued.” 974 F.3d at 175. It also relies on Greenfield’s observation that, in many circumstances, proof of existence and control as of an earlier date can support an inference of continued existence and control as of the date of the subpoena, especially when:

there is no indication that the documents have been destroyed or transferred, and
the time between the earlier date and the subpoena is relatively short.

Both conditions were present here: (1) the record contained no suggestion that the drafts had gone elsewhere or been destroyed; and (2) the time between March 2 (when the file was returned) and the April 26 subpoena was under two months.

A footnote addresses a procedural nuance: the grand jury that issued the April 2023 subpoena later expired. To “cover its bases,” the government empaneled a new grand jury and issued a “substantially identical” subpoena on May 29, 2025, which was served on June 3, 2025. The Second Circuit treated the government’s knowledge as adequate at the relevant times, and the relatively short gap between proven possession and the original subpoena—combined with the absence of contrary evidence—sufficed to satisfy the second prong.

3. Ability to Authenticate the Draft Reports

The third prong—authenticity—concerns whether the government can prove that the documents are what it claims they are without relying on the fact that the appellant produced them.

Drawing on Greenfield and earlier grand jury subpoena cases, the Second Circuit identified several independent means by which the government could authenticate the drafts:

Testimony from another employee familiar with the report and its preparation.
Comparison of the drafts to a final or filed version of the report already in the government’s possession, asking the trier of fact to compare them—an approach endorsed in In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 2002, 1 F.3d 87, 93 (2d Cir. 1993).
Testimony from a witness familiar with the appellant’s handwriting, or from a handwriting expert (by analogy to In re Grand Jury Subpoena Dated July 6, 2005, 256 F. App’x 379, 382 (2d Cir. 2007), which discussed voice authentication).

The court concluded that “each of these methods could be employed here,” leading it to find that the government’s ability to authenticate the drafts was a foregone conclusion as well. Thus, the appellant’s act of production was not needed to establish authenticity in any meaningful way.

E. Role of Attorney Admissions and the Government’s “Knowledge”

A striking feature of this case is the central role played by statements from defense counsel in establishing the government’s knowledge. The government’s evidence on existence and possession consisted largely of what O’keke had told the prosecutor and her intern, supported by their notes and related actions (like the subpoena to O’keke).

This illustrates several important points:

For foregone-conclusion purposes, the government’s “knowledge” need not be based on admissible trial evidence; it can rest on hearsay or attorney admissions, as long as the district court finds them credible.
The standard is not absolute certainty but “reasonable particularity,” somewhere between pure inference and perfect knowledge.
Defense counsel’s strategic communications with prosecutors—especially during off-the-record meetings or proffer sessions—can later be used to argue that the government already knows about certain documents, thereby undercutting a Fifth Amendment challenge to a subpoena for those documents.

From a practice standpoint, this decision underscores the need for defense counsel to be deliberate about describing documents in their client’s possession. Even when no explicit waiver of privilege is intended, confirming the existence, location, or nature of documents may supply the factual basis the government needs to invoke the foregone-conclusion doctrine.

F. Standard of Review and Deference to the District Court

The Second Circuit restated its two-tiered standard of review from Greenfield:

It reviews legal questions about the scope of the Fifth Amendment privilege de novo.
It reviews factual determinations—such as whether the act of production would be testimonial under the circumstances—only to see if they lack any support in the record.

In this case, the panel concluded that:

The district court correctly applied the legal framework for the act-of-production privilege and the foregone-conclusion doctrine.
The district court’s factual findings—crediting Steiner and the intern, interpreting O’keke’s statements as declarative rather than hypothetical, and inferring continued possession from the return of the file—were amply supported by the record.

As a result, the Second Circuit found no basis to overturn the district court’s application of the foregone-conclusion doctrine.

IV. Precedents Cited and Their Influence

A. Fisher v. United States, 425 U.S. 391 (1976)

Fisher is the foundational Supreme Court case establishing that:

The Fifth Amendment generally does not protect the contents of voluntarily prepared, pre-existing documents.
The act of producing documents in response to a subpoena may itself be testimonial.
However, when the government already knows of the documents’ existence and location, and the production adds “little or nothing” to its information, the Fifth Amendment does not bar compulsion—this is the foregone-conclusion doctrine.

The Second Circuit’s entire analysis in this case is an application of Fisher’s framework as elaborated in its own subsequent decisions.

B. United States v. Doe, 465 U.S. 605 (1984)

In Doe, the Supreme Court confirmed that while business records themselves were not privileged, the act of producing them in response to a subpoena could be. It also recognized that where the act of production is testimonial and incriminating, the government must either:

provide use and derivative-use immunity for the act of production, or
meet the foregone-conclusion standard.

The Second Circuit cites Doe through Greenfield for the proposition that it will disturb district court factual findings only where they have “no support in the record.”

C. United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016)

Greenfield is a leading Second Circuit case constraining the foregone-conclusion doctrine. There, the government sought records of foreign bank accounts. Although it presented evidence that the defendant had such accounts years earlier, it failed to show, with reasonable particularity, that those accounts—and corresponding records—still existed and were under the defendant’s control at the time of the IRS summons.

The Second Circuit therefore found the foregone-conclusion doctrine inapplicable and held the act-of-production privilege protective. That decision:

Tightened the government’s burden to show existence and control at the time of compulsion.
Emphasized that speculative inferences or stale evidence are insufficient.
Clarified the standard of review for district court fact-finding in this area.

In the present case, the Second Circuit applies Greenfield but finds that—unlike in Greenfield—the government’s evidence was current, specific, and corroborated. The relatively short passage of time between March 2 and April 26, 2023, and the absence of evidence of destruction or transfer, made an inference of continued possession reasonable.

D. United States v. Fridman, 974 F.3d 163 (2d Cir. 2020)

Fridman further refined the foregone-conclusion test in the Second Circuit by explicitly spelling out the three elements—existence, possession or control, and authenticity—and introducing the “reasonable particularity” and “between mere inference and perfect knowledge” language.

The present case relies on Fridman for:

The three-pronged structure of the foregone-conclusion inquiry; and
The requirement that the government’s knowledge be established as of the time the subpoena (or summons) issued.

E. In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 2002, 1 F.3d 87 (2d Cir. 1993)

This earlier Second Circuit case addressed how documents may be authenticated. It recognized that one method is to ask the trier of fact to compare different versions of documents to determine whether the purported drafts or copies are genuine.

The current decision draws on that principle to hold that the government could authenticate the draft reports by comparing them to the final filed versions and asking a jury or judge to assess their relationship.

F. In re Grand Jury Subpoena Dated July 6, 2005, 256 F. App’x 379 (2d Cir. 2007)

While that case concerned voice authentication, the Second Circuit here cites it by analogy to illustrate that:

Authentication can rest on expert testimony, or
on testimony by a witness with familiarity with the purported author’s handwriting or other identifying characteristics.

G. In re Air Crash at Belle Harbor, 490 F.3d 99 (2d Cir. 2007)

As noted above, Belle Harbor articulates the standard route to appellate review of subpoena enforcement orders via a contempt finding. The Second Circuit invokes it here to explain why it now has jurisdiction after previously dismissing an earlier appeal.

V. Complex Concepts Simplified

A. What Is a Grand Jury Subpoena?

A grand jury subpoena is a legal order issued at the request of prosecutors directing a person to:

appear and testify before the grand jury, or
produce documents or other evidence.

Grand juries investigate potential crimes in secret. Subpoena recipients must comply unless they have a valid legal basis to object (such as a privilege or an undue-burden argument).

B. What Is the Contempt Route to Appeal?

Because a subpoena enforcement order is not normally “final,” a party cannot immediately appeal it. Instead, the party may:

Refuse to comply with the enforcement order;
Be found in civil or criminal contempt; and
Appeal that contempt order, which is treated as a final decision.

This path carries risk—contempt may bring fines or confinement, at least until compliance—but it is often the only way to secure appellate review of the subpoena’s lawfulness.

C. The Act-of-Production Privilege in Plain Terms

The act-of-production privilege recognizes that sometimes the very act of handing over documents is like answering a question under oath. By producing documents, a person may implicitly be saying:

“These documents exist.”
“I have them.”
“These are the ones you asked for.”

If these implicit statements are incriminating, the Fifth Amendment may bar the government from compelling the act of production, unless the foregone-conclusion doctrine applies or the government offers adequate immunity.

D. The Foregone-Conclusion Doctrine in Plain Terms

The foregone-conclusion doctrine says: if the government already knows the key facts that the act of production would reveal, then forcing you to hand over the documents does not violate the Fifth Amendment. Why? Because you are not really telling the government anything new.

To use the doctrine, the government must be able to show that it already knows, with reasonable specificity:

that the documents exist,
that you have them or control them, and
that it will be able to prove they are genuine without relying on the fact that you produced them.

E. What Is Authentication?

Authentication is the process of proving that a document is what someone claims it is. Under the Federal Rules of Evidence, there are many ways to authenticate documents, including:

Testimony from someone who saw the document created or is familiar with how such documents are normally prepared;
Comparing the document to another version whose authenticity is already established;
Handwriting or other forensic expert analysis;
Testimony from someone familiar with the purported author’s handwriting or style.

In the Fifth Amendment context, the key point is that if the government can prove authenticity using these independent methods, it does not need to rely on the fact that the defendant produced the documents.

VI. Likely Impact and Practical Implications

A. Weight of a Nonprecedential Summary Order

The Second Circuit explicitly notes that summary orders do not have precedential effect, though they may be cited under Federal Rule of Appellate Procedure 32.1 and the court’s Local Rule 32.1.1. As a result, this decision is not binding authority in future Second Circuit cases. Nevertheless, it has persuasive value, especially because it:

Applies and reinforces binding precedents such as Fisher, Greenfield, and Fridman; and
Offers a detailed, fact-specific illustration of how the foregone-conclusion doctrine can be satisfied.

B. Implications for White-Collar and Corporate Investigations

The case arises out of the appellant’s former employment and concerns draft reports that appear to relate to workplace or corporate matters. In that setting, the decision signals:

Prosecutors can rely on conversations with current or former counsel, as well as internal notes and documents, to build the “knowledge” needed to overcome a Fifth Amendment objection to a document subpoena.
When an employee or former employee retains drafts of corporate documents, the government may be able to compel their production if it can show—through counsel’s statements, co-worker testimony, and existing final versions—that it already knows those drafts exist and where they are.
Corporate and white-collar defense counsel must be conscious that even nuanced or tentative descriptions of documents can later be used to argue that the government’s knowledge was a foregone conclusion.

C. Strategy for Defense Counsel

The case highlights several strategic concerns for defense lawyers:

Pre-indictment discussions: Meetings with prosecutors can help resolve matters favorably, but they also risk giving the government the factual basis to compel production later.
Record creation by the government: Here, the AUSA and intern created contemporaneous notes and assignments that later corroborated their account of what defense counsel had said. Counsel should assume that such documentation will exist and may be credited.
Potential witness issues: Extensive factual communications by defense counsel may, in some situations, risk making counsel a fact witness, with possible implications for continued representation.

D. Guidance for Prosecutors

For prosecutors, the decision provides a roadmap for satisfying the foregone-conclusion standard:

Elicit and document detailed information in early communications (e.g., about specific documents’ existence, location, and content).
Corroborate those communications with contemporaneous notes, internal research tasks, and follow-up subpoenas.
Think in advance about how to authenticate subpoenaed documents independently—e.g., through co-worker testimony, comparisons with final versions, or expert analysis.

E. Possible Relevance to Digital Evidence

Although this case involves physical or paper “draft reports,” its reasoning may be invoked in future disputes about:

electronic documents,
cloud-stored records, or
encrypted data (e.g., compelling a suspect to decrypt a device).

In those contexts, courts and litigants will likely debate what level of government knowledge about the existence, location, and authenticity of digital files is sufficient, and whether that knowledge is “reasonably particular” or merely inferential. This order reinforces that credible statements from counsel, corroborated by other evidence, can be enough.

VII. Conclusion

In re Grand Jury Subpoena Dated May 29, 2025 affirms a contempt order against a subpoena target who refused to produce draft reports relating to his former employment. Applying the act-of-production doctrine and the foregone-conclusion exception, the Second Circuit held that compelling production did not violate the Fifth Amendment because:

The existence of the drafts was already known, based largely on the appellant’s own counsel’s statements, corroborated by notes and government actions.
The appellant’s possession or control of the drafts at the time of the subpoena could be reasonably inferred from the return of his file and the short time interval, in the absence of any contrary evidence.
The government could authenticate the drafts through co-worker testimony, comparison with final versions, or handwriting evidence, without relying on the act of production itself.

While nonprecedential, the decision offers a concrete, fact-rich application of the foregone-conclusion doctrine within the Second Circuit’s established framework in Fisher, Greenfield, and Fridman. It underscores the importance of:

Building a detailed factual record of government knowledge when seeking to compel documents over Fifth Amendment objections; and
Exercising care in defense counsel’s communications with prosecutors, which may later serve as the very foundation of the government’s foregone-conclusion argument.

In the broader legal context, the opinion reinforces the idea that when the government can show with reasonable particularity that documents exist, are controlled by the target, and can be authenticated independently, the Fifth Amendment will not bar their compelled production—even when the act of producing them would otherwise be testimonial.