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Opinion of the Court
Court's finding that "Hubbell's compelled act of production required him to make communications as to the existence, possession, and authenticity of the subpoenaed documents"). On appeal and again before this Court, however, the Government has argued that the communicative aspect of respond-ent's act of producing ordinary business records is insufficiently "testimonial" to support a claim of privilege because the existence and possession of such records by any businessman is a "foregone conclusion" under our decision in Fisher v. United States, 425 U. S., at 411. This argument both mis-reads Fisher and ignores our subsequent decision in United States v. Doe, 465 U. S. 605 (1984).
As noted in Part II, supra, Fisher involved summonses seeking production of working papers prepared by the taxpayers' accountants that the IRS knew were in the possession of the taxpayers' attorneys. 425 U. S., at 394. In rejecting the taxpayers' claim that these documents were protected by the Fifth Amendment privilege, we stated:
"It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the 'truthtelling' of the taxpayer to prove the existence of or his access to the documents. . . . 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., at 411 (emphases added).
Whatever the scope of this "foregone conclusion" rationale, the facts of this case plainly fall outside of it. While in Fisher the Government already knew that the documents were in the attorneys' possession and could independently
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