In doing this we recognize that both our court and our sister circuits have struggled with the extent of Government knowledge necessary for a foregone-conclusion rationale to apply. See, e.g. , In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992 , 1 F.3d 87 (2d Cir. 1993); United States v. Fox , 721 F.2d 32 (2d Cir. 1983); see also United States v. Bright , 596 F.3d 683 (9th Cir. 2010); United States v. Ponds , 454 F.3d 313 (D.C. Cir. 2006); United States v. Norwood , 420 F.3d 888 (8th Cir. 2005). The documents sought in the instant case do not fall under the so-called "required records exception" to the act-of-production doctrine.

First, "if the existence and location of the subpoenaed papers are unknown to the government, then . . . compelled production of those documents `tacitly concedes the existence of the papers demanded and their possession or control by the [person subpoenaed].'" United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983) (quoting Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976)). Second, a "taxpayer's production of documents may `implicitly authenticate' the documents and in so doing provide a link in the chain of incrimination."

To satisfy the self-incriminating prong of the privilege, the party asserting the privilege must demonstrate a "real and substantial risk" that answers may tend to incriminate. In re Gilboe, 699 F.2d 71, 74-75 (2d Cir. 1983); see also United States v. Fox, 721 F.2d 32, 40 (2d Cir. 1983) (stating that "'[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.'") (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)); United States v. Argomaniz, 925 F.2d 1349, 1353 (11th Cir. Fla. 1991) (stating that "[t]he [party] seeking the protection of this privilege [against self-incrimination] to avoid compliance with an IRS summons 'must provide more than mere speculative, generalized allegations of possible tax-related prosecution.... The taxpayer must be faced with substantial and real hazards of self-incrimination.'") (quoting United States v. Reis, 765 F.2d 1094, 1096 (11th Cir. 1985)).

To satisfy the self-incriminating prong of the privilege, the party asserting the privilege must demonstrate a "real and substantial risk" that answers may tend to incriminate. In re Gilboe, 699 F.2d 71, 74-75 (2d Cir. 1983); see also United States v. Fox, 721 F.2d 32, 40 (2d Cir. 1983) (stating that "'[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.'") (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)); United States v. Argomaniz, 925 F.2d 1349, 1353 (11th Cir. Fla. 1991) (stating that "[t]he [party] seeking the protection of this privilege [against self-incrimination] to avoid compliance with an IRS summons 'must provide more than mere speculative, generalized allegations of possible tax-related prosecution.... The taxpayer must be faced with substantial and real hazards of self-incrimination.'") (quoting United States v. Reis, 765 F.2d 1094, 1096 (11th Cir. 1985)).

To satisfy the self-incriminating prong of the privilege, the party asserting the privilege must demonstrate a "real and substantial risk" that answers may tend to incriminate. In re Gilboe, 699 F.2d 71, 74-75 (2d Cir.1983); see also United States v. Fox, 721 F.2d 32, 40 (2d Cir.1983) (stating that " '[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified.

The Fifth Amendment undoubtedly applies to compelled testimony sought during the course of an IRS investigation. As the Second Circuit has explained, "even a routine tax investigation is a situation in which answers to questions by an IRS agent might tend to incriminate, and thus Fifth Amendment rights apply to such answers." United States v. Fox, 721 F.2d 32, 33 (2d Cir. 1983); see also United States v. Edgerton, 734 F.2d 913, 919-20 (2d Cir. 1984). By contrast, the Fifth Amendment privilege against self-incrimination generally does not apply to incriminating documents; instead, it applies only to " testimonial communication that is incriminating."

This is so because "[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect." Id. The act of producing voluntarily prepared documents may constitute compelled testimonial communication in two circumstances: "(1) 'if the existence and location of the subpoenaed papers are unknown to the government'; or (2) where production would 'implicitly authenticate' the documents." In Re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 93 (2d Cir. 1993) ( "Doe II") (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983)). 1. Existence and Location of Documents

Other courts, not treating Fisher's "act of production" doctrine so lightly, have upheld an individual's claim of fifth amendment privilege as to the act of producing subpoenaed documents. E.g., In Re Grand Jury Subpoenas Duces Tecum, 722 F.2d 981, 987 (2d Cir. 1983) (remand for determination whether act of production might have self-incriminatory effect); United States v. Fox, 721 F.2d 32 (2d Cir. 1983) (act of production held to be "testimonial communication", remanded for determination of whether it would be "self-incriminatory"); United States v. Porter, 711 F.2d 1397, 1402 (7th Cir. 1983) — (implicit authentication held to be "testimonial communication"). The Ninth Circuit, although it has not as yet written extensively on the application of the "act of production" doctrine, has held that compelled production of subpoenaed documents would violate the fifth amendment if the act of producing the documents would authenticate them and incriminate the person subpoenaed.

The rule in the Second Circuit to determine whether individuals may invoke the "Act of Production" doctrine uses a two part test. United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983). First, the court must determine whether the production of documents would be testimonial.

While the defendant's burden might not be great under the circumstances, a proponent of a Fifth Amendment privilege against production of relevant evidence must make some showing of potential incrimination. (See, e.g., Matter of Grand Jury Subpoena [Bekins Stor.], 62 N.Y.2d 324, 328; United States v Fox, 721 F.2d 32, 40 [2d Cir 1983]; United States v Schlansky, 709 F.2d 1079, 1084 [6th Cir 1983]; Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469, 477 [3d Cir 1979].) Considering the importance of the constitutional claim, the court allowed the defendant to make a further submission in support of his assertion of the privilege.