Riley, J.
STATEMENT OF THE CASE
Appellants-Defendants, Christopher Allen Duncan (Duncan), Patel’s Palace LLC d/b/a Indy Surplus Liquidators (ISL), Midwest Surplus Liquidators, LLC (MSL), Rupal Patel (Patel), and Christopher Zorman (Zorman) (collectively, Appellants), appeal the trial court’s Order on interlocutory appeal, which granted Appellee’s-Defendant’s, Barton’s Discounts, LLC (Barton’s), motion to compel in part, and ordered Appellants to produce all responsive, unredacted documents requested by Barton’s discovery request.
We affirm.
ISSUE
Appellants present this court with one issue on appeal, which we restate as follows: Whether the Fifth Amendment to the United States Constitution shields the production of potentially incriminating documents and communications in a civil discovery proceeding.
….
This case focuses on the conflict that can arise during discovery in a civil case where a threat of criminal prosecution looms overhead. The discovery sought by Barton’s, i.e., contemporaneous communications exchanged between alleged co-conspirators, compelled Appellants to invoke their Fifth Amendment privilege against self-incrimination and to submit their dispute to this court. Appellants contend that the trial court abused its discretion when it ordered them to produce the unredacted text messages, on the ground that these were non-testimonial in nature and therefore not protected by Appellants’ Fifth Amendment rights. [Footnote omitted.]
….
“The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed. 2d 39 (1976). More specifically, in Fisher, the Supreme Court held that the Fifth Amendment privilege against self-incrimination could be invoked to protect an individual from being compelled to personally produce documents, even if the contents of those documents were not privileged, if the act of production would have testimonial aspects that could be self-incriminating. Id. The Court noted that, by producing documents, the producing party implicitly concedes possession and control of the documents and indicates that the documents produced are, in fact, the documents described in the subpoena, thus implicating the testimonial prerequisite for Fifth Amendment protection. Id. This decision solidified what is commonly called the “act of production privilege.” Id. On the other hand, if the “existence and location of the [subpoenaed] papers are a foregone conclusion and the [subpoenaed party] adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers[,]” then “no constitutional rights are touched” by enforcement of the subpoena. Id. at 411. “The question is not of testimony but of surrender.” Id.
….
Our Indiana supreme court recently analyzed the interplay between the Fifth Amendment and document requests in Seo v. State, 148 N.E.3d 952 (Ind. 2020). In Seo, our supreme court commenced its analysis by reiterating the principles pronounced in Fisher, emphasizing that “not all compelled, incriminating evidence falls under the [Fifth Amendment’s] constitutional protection: the evidence must also be testimonial.” Id at 955….Nevertheless, our supreme court’s reliance on Fisher in reaching its conclusion in Seo that forcing a criminal suspect to produce an unlocked cellphone was not covered by Fisher’s foregone conclusion exception, firmly indicates that Indiana’s view on the Fifth Amendment as applied to document requests is squarely aligned with federal law.
We agree with the trial court that the text messages are non-testimonial in nature and therefore are not protected under the Fifth Amendment. Barton’s first motion to compel requested discovery of all communications between Appellants and Duncan since January 1, 2019. In response to Barton’s first motion, Appellants produced a heavily-redacted text message exchange between Duncan and ISL, as well as a privilege log identifying more than 100 text messages in the chain that were withheld on Fifth Amendment grounds. The privilege log and the text message chain revealed the date, time, and sender/recipient of the text message. On July 2, 2020, Barton’s filed a renewed motion to compel, requesting the trial court to substantively address the Appellants’ Fifth Amendment objections and to compel the production of the unredacted text messages. The act of production protection is inapplicable as Barton’s specifically defined the parameters of its discovery—all communications between Appellants and Duncan since January 1, 2019—and Barton’s was aware of the existence of these text messages between Appellants and Duncan prior to the submission of the privilege log. It knows Appellants possessed them and knows the participants in the conversations. Accordingly, as the compelled production of these documents does not communicate any incriminating testimony through the act of production itself, the doctrine does not apply. Rather, the production of the compelled documents has become a foregone conclusion, which does not require Appellants to employ the contents of their mind because either the documents fall within the specified timeline and parameters of the discovery request or they do not—no independent judgment is required to make that determination. In other words, Barton’s production request calls “for objectively determinable universes of documents and do[es] not require [Appellants] to employ the contents of [their] minds.” Sallah, 855 F.Supp. 2d at 1373. The text messages were voluntarily created prior to the issuance of the discovery requests, and the production of the text messages is not testimonial.
In their objections to the motion to compel and in their appellate brief, Appellants focus on the content of the messages when raising their Fifth Amendment rights. This is an incorrect analysis of Barton’s motion to compel. Barton’s is not requesting Appellants to respond to certain questions posed in interrogatories or depositions; instead, Barton’s is asking for the production of text messages that it already knows exist and are in the possession of Appellants. See, e.g., Hubbell, 530 U.S. at 37 (“Whether the constitutional privilege protects . . . the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.”). The actual act of producing these text messages does not give Barton’s any new information. Therefore, the Fifth Amendment does not apply and the unredacted text messages must be produced. As such, we affirm the trial court’s Order to compel.
III. Business Records
In its Order, the trial court discussed an alternative ground on which it affirmed Barton’s renewed motion to compel. The trial court concluded that the Fifth Amendment did not apply to Appellants’ communications with Duncan as it does not protect business records created by an owner, agent, or employee of a business entity. We agree.
The Fifth Amendment is a personal privilege and “an individual cannot rely upon the [Fifth Amendment] privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.” Bellis v. United States, 417 U.S. 85, 88 (1974). This is true even where the corporate records or communications are sought from a personal device or account. See, e.g., In re Russo, 550 S.W.3d 782, 790 (Tex. Ct. App. 2018) (compelling production of corporate records located in Defendant’s Yahoo account).
The record supports that the redacted messages between Duncan and Appellants were sent on behalf of corporate entities as the phone number in the text message exchanges was the phone number listed on ISL and MSL’s websites. During these proceedings, Appellants did “not dispute that the phone number involved in the text chain is the main phone line for ISL and MSL.” (Appellants’ App. Vol. II, p. 31). Even though a personal phone might have been used to send the text messages, we agree with the trial court’s conclusion that if these messages “were clearly sent in Zorman’s and Patel’s representative capacities on behalf of ISL and or MSL, then those messages are not the personal communications of Zorman and Patel and therefore, the messages are not protected by the Fifth Amendment.” (Appellants’ App. Vol. III, pp. 31-32). In other words, as the party asserting the privilege, it is Appellants’ burden to establish which of these redacted messages were “conversations between the parties [and] were personal in nature.” (Appellants’ Br. p. 23). Appellants failed to meet that burden. See, e.g., In re Russo, 550 S.W.3d at 790 (“[Defendant] had the burden to prove that each of the documents he withheld are personal and not a record of one of his corporate entities. [Defendant] has not done so.”) (internal citation omitted). Accordingly, the redacted text messages, as business records of ISL and MSL, are not protected by the Fifth Amendment and are discoverable.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion by granting Barton’s motion to compel in part, and ordering Appellants to produce all responsive, unredacted documents requested by Barton’s discovery request.
Affirmed.
Najam, J. and Brown, J. concur.