The key litigated issue in In re: Grand Jury Proceedings, No. 4-10, was whether foreign financial account records fall under the Required Records Exception to the Fifth Amendment privilege against self-incrimination and if production of those records may be compelled.

In In re: Grand Jury, the IRS and DOJ jointly began a grand jury investigation into whether a target and his wife (the Targets) failed to disclose on their tax returns their ownership of or income derived from foreign bank accounts and whether they failed to file certain required US Department of the Treasury reports on these accounts. As part of the investigation, the grand jury issued subpoenas duces tecum to the Targets, requiring that they produce the foreign financial account records that they were required to keep under the federal regulations governing offshore banking. The Targets refused to produce the records, asserting their Fifth Amendment privilege against self-incrimination.

The district court granted the government's motion to compel production of the requested documents, holding that the documents fell within the Required Records Exception to the Fifth Amendment privilege against self-incrimination, and ordered the production of the subpoenaed records. Despite the district court's order, the Targets continued to withhold their foreign financial account records. The district court held them in contempt but stayed enforcement of its contempt order pending appeal.

On February 7, 2013, the US Court of Appeals for the Eleventh Circuit issued an opinion in In re: Grand Jury, affirming the district court and holding that the Required Records Exception was applicable to foreign financial records, applying factors in the Supreme Court's opinion in Grosso v. U.S. Specifically, the Eleventh Circuit compelled the Targets to produce the requested documents because:

In addition, the Eleventh Circuit found that, by voluntarily maintaining foreign financial accounts (an activity governed by a regulatory scheme requiring record-keeping and reporting), the Targets accepted the consequence that they might have to produce their foreign financial account records to the government. Therefore, the incrimination that may result from the Targets' act of production does not overcome the Required Records Exception to the Fifth Amendment privilege against self-incrimination.

In holding that the Required Records Exception applies to foreign financial account records, the Eleventh Circuit joins the US Courts of Appeals for the Fifth, Seventh and Ninth Circuits. Counsel advising foreign financial account holders should be aware that their clients may be required to produce records about those accounts.