JUSTICE STEIGMANN delivered the opinion of the court: In October 2000, petitioner, Mary Kay Roney, filed apetition to dissolve her marriage to respondent, Christopher J.Roney. In January 2001, Mary Kay filed (1) a motion, seeking torequire Christopher to turn over tape recordings of her telephoneconversations; and (2) a motion in limine to exclude the recordings from evidence. In May 2001, the trial court ordered Christopher to turn over all of the tape recordings Mary Kay hadrequested in discovery. In August 2001, the court found Christopher to be in indirect civil contempt for failing to turn overthe tape recordings as ordered.

Christopher appeals, arguing that the trial court'sorder violates his fifth amendment privilege against self-incrimination (U.S. Const., amend. V) because the act of turning overthe recordings would constitute a testimonial communicationincriminating him in the criminal offense of eavesdropping (720ILCS 5/14-2(a)(1) (West 2000)). We reverse in part, vacate inpart, and remand for further proceedings.

Mary Kay and Christopher married in November 1983. Asstated, Mary Kay initiated dissolution proceedings, and inJanuary 2001, she filed a motion in limine and sought a turnoverorder.

Along with her motion requesting a turnover order, MaryKay filed an affidavit in which she stated that (1) she discovered wiretapping equipment in the attic of the marital residence;(2) Christopher admitted taping her telephone conversations; (3)she did not consent to the taping; and (4) she understood thatapproximately 30 tapes existed. In response to Mary Kay'smotion, Christopher asserted his fifth amendment privilegeagainst self-incrimination.

At a March 2001 hearing on Mary Kay's motions, ThadTrimble, a Champaign County sheriff's department evidence officer, testified regarding the items that Mary Kay had submitted tothe police. Trimble stated that he took possession of "the GEtape recorder and plug-in, the white Radio Shack eavesdroppingdevice, the Gemini phone modular plug, [a] crimping tool, sevencassette tapes with tape recorder, [and] three white cassettetapes with storage cases."

Mary Kay testified that on October 16, 2000, she wentinto the attic because she suspected that Christopher was storingpornography there. She explained that she had heard him goinginto the attic on a daily basis over the past eight months. Theattic did not have a floor, and insulation covered most of thearea. After a half hour poking around with a mop handle andlifting insulation, Mary Kay found the telephone recordingdevice. In mid-November 2000, Mary Kay confronted Christopherabout splicing the phone line, and Christopher admitted doing itand said that he did it to protect her.

The trial court allowed Mary Kay's counsel to play twoof the tapes, only one of which contained recordings of MaryKay's telephone conversations. Mary Kay called Christopher as anadverse witness, but he refused to answer questions and assertedhis fifth amendment rights.

At the conclusion of the hearing, the trial courtgranted Mary Kay's motion in limine after finding by a preponderance of the evidence that the tape containing recorded telephoneconversations was obtained illegally. The court continued thehearing on Mary Kay's request for a turnover order until May2001. At that hearing, Chase Leonard, an assistant State'sAttorney, testified that a criminal prosecution of Christopherwas unlikely. The trial court found that the fifth amendmentprivilege did not apply because turning over the tape recordingswas not testimonial in nature. The court ordered Christopher toturn over the tapes by May 29, 2001. Christopher filed a motionfor rehearing, but never called it for a hearing.

At the August 2001 hearing on Mary Kay's petition foradjudication of indirect civil contempt, Christopher testified as an adverse witness that he did not turn over any tapes. Hethen asserted his fifth amendment rights when asked if he had thetapes or knew of their location.

When Christopher testified on his own behalf, hiscounsel asked him, "Do you have a reason that you did not turnover any tapes that might be in your possession?" He responded,"What tapes? Are you asking--what makes them think I have anytapes?" Mary Kay's counsel objected to the answer and moved tostrike it as nonresponsive, and the trial court ordered thevolunteered portion stricken.

Following the hearing, the trial court found Christopher in indirect civil contempt for having willfully disobeyedthe court's order to turn over all tape recordings to Mary Kay. The court ordered Christopher to be incarcerated in the countyjail until he (1) turned over all tapes as ordered, and (2) filedan affidavit stating that the materials turned over constitutedall of the tapes in his possession or control or both. Alternatively, the court ordered that Christopher could file an affidavit stating that no tapes were in his possession or control.

This appeal followed, and the trial court grantedChristopher's motion for a stay pending appeal.

The sole issue before us is whether the act of turningover tape-recorded telephone conversations, which were obtainedby eavesdropping in violation of criminal law, constitutes anincriminating testimonial communication protected by the fifthamendment privilege. We conclude that it does.

In Fisher v. United States, 425 U.S. 391, 409-10, 48 L.Ed. 2d 39, 55-56, 96 S. Ct. 1569, 1580-81 (1976), the UnitedStates Supreme Court explained the scope of the fifth amendmentprivilege against self-incrimination as follows:

"[T]he privilege protects a person onlyagainst being incriminated by his own compelled testimonial communications. ***

The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly asidefrom the contents of the papers produced. Compliance with the subpoena tacitly concedesthe existence of the papers demanded andtheir possession or control by the [witness]. It also would indicate the [witness'] beliefthat the papers are those described in thesubpoena. [Citation.] The elements of compulsion are clearly present, but the moredifficult issues are whether the tacit averments of the [witness] are both 'testimonial'and 'incriminating' for purposes of applyingthe [f]ifth [a]mendment."

The Court in Fisher determined that a taxpayer's implicit admission regarding the existence and possession of his accountant'spapers did not rise to the level of testimony protected by thefifth amendment privilege because "[t]he existence and locationof the papers [was] a foregone conclusion." Fisher, 425 U.S. at411, 48 L. Ed. 2d at 56, 96 S. Ct. at 1581.

In a recent decision, however, United States v.Hubbell, 530 U.S. 27, 36, 147 L. Ed. 2d 24, 36, 120 S. Ct. 2037,2043 (2000), the United States Supreme Court more restrictivelyviewed its holding in Fisher as tied to the particular circumstances of that case--namely, the compulsory production ofdocuments otherwise required by tax law to have been previouslyprepared. In language applicable to the present case, the Courtexplained the scope of fifth amendment protection as follows:

"[This Court has made clear] that theact of producing documents in response to asubpoena may have a compelled testimonialaspect. We have held that 'the act of production' itself may implicitly communicate'statements of fact.' By 'producing documents in compliance with a subpoena, thewitness would admit that the papers existed,were in his possession or control, and wereauthentic.'" Hubbell, 530 U.S. at 36, 147 L.Ed. 2d at 36, 120 S. Ct. at 2043, quoting Doev. United States, 487 U.S. 201, 209, 101 L.Ed. 2d 184, 196, 108 S. Ct. 2341, 2347(1988).

Thus, in the present case, compulsion exists becausethe trial court (1) ordered Christopher to turn over any recordings, (2) found him in contempt, and (3) sentenced him to jailuntil he complied with the order. Turning over any recordingswould amount to compelled testimonial communication because thatact would implicitly concede the existence, source, and authenticity of the materials. Hubbell, 530 U.S. at 36, 147 L. Ed. 2dat 36, 120 S. Ct. at 2043; see also Briggs v. Salcines, 392 So.2d 263, 267 (Fla. App. 1980) (holding that if tape recordings oftelephone conversations were in a witness' possession, "theforced production of them would amount to compelled incriminatingtestimonial communication in that the production would serve asauthentication that [the witness] had made the tape recordings"). That act would also be incriminating because the recorded conversations, if any, would have been knowingly and intentionallyobtained by an eavesdropping device in violation of Illinoiscriminal law (see 720 ILCS 5/14-2(a)(1) (West 2000) (one commitseavesdropping by knowingly and intentionally using an eavesdropping device for the purpose of hearing or recording all or anypart of any conversation)).

In support of our conclusion in this case, we quotefrom Justice Thomas' concurring opinion in Hubbell, as follows:

"[T]his Court has noted that, for generationsbefore the framing, 'one cardinal rule of thecourt of chancery [wa]s never to decree adiscovery which might tend to convict theparty of a crime.' Boyd v. United States,116 U.S. 616, 631[, 29 L. Ed. 746, 751, 6 S.Ct. 524, 533] (1886). See also Counselman v.Hitchcock, 142 U.S. 547, 563-64[, 35 L. Ed.1110, 1114, 12 S. Ct. 195, 198] (1892) ('Itis an ancient principle of the law of evidence, that a witness shall not be compelled,in any proceeding, to make disclosures or togive testimony which will tend to criminatehim or subject him to fines, penalties[,] orforfeitures')." Hubbell, 530 U.S. at 51-52,147 L. Ed. 2d at 45, 120 S. Ct. at 2051(Thomas, J., concurring, joined by Scalia,J.).

Christopher asserted a valid fifth amendment privilegeagainst self-incrimination, and the trial court erred by (1)ordering him to turn over the recordings, and (2) holding him inindirect civil contempt for willfully refusing to comply withthat order.

For the reasons stated, we reverse the trial court'sorder that Christopher turn over the tape recordings, vacate thecourt's order finding Christopher in indirect civil contempt, andremand for further proceedings not inconsistent with this order.

Reversed in part and vacated in part; cause remandedfor further proceedings.

KNECHT, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent and would affirm the decision ofthe trial court. The majority opinion fails to address thespecial rules which apply when the fifth amendment is sought tobe exercised in a civil case.

The interests of fundamental fairness and substantialjustice outweigh the protections afforded by a privilege whereplaintiff seeks to utilize those protections as a sword (ratherthan a shield) to prevent disclosure of relevant, probative,admissible, and not unduly prejudicial evidence. D.C. v. S.A.,178 Ill. 2d 551, 570, 687 N.E.2d 1032, 1041 (1997) (therapist-recipient relationship). D.C. cited Galante v. Steel CityNational Bank of Chicago, 66 Ill. App. 3d 476, 481, 384 N.E.2d57, 61 (1978), where the court noted that a number of jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the fifth amendment privilegeagainst self-incrimination while still maintaining the lawsuit. See also In re Marriage of Kocher, 282 Ill. App. 3d 655, 659, 668N.E.2d 651, 654 (1996) (where we refused to allow a party to putin his financial affidavits as evidence when he asserted thefifth amendment in response to questions concerning them). Seealso In re Marriage of Hartian, 172 Ill. App. 3d 440, 453, 526N.E.2d 1104, 1113 (1988) ("We find that once Marie filed her[petition for attorney fees] beneficial to herself, she 'becamean actor, a profiteer of the judicial machinery and process'[citation] ***").

It is the prevailing rule that the fifth amendment doesnot forbid adverse inferences against parties in civil actionswhen they refuse to testify in response to probative evidenceoffered against them. People v. $1,124,905 U.S. Currency & One1998 Chevrolet Astro Van, 177 Ill. 2d 314, 332, 685 N.E.2d 1370,1379 (1997), quoting Baxter v. Palmigiano, 425 U.S. 308, 318, 47L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976); JacksonvilleSavings Bank v. Kovack, 326 Ill. App. 3d 1131, 1137, 762 N.E.2d1138, 1143 (2002) (stay of civil case not appropriate wheredefendant not charged and merely asserted he was the subject of acriminal investigation).

In the present case, the trial court had the right toask Christopher whether he had the tapes, and when Christopherinvoked the fifth amendment privilege, the trial court had theright to draw the negative inference that Christopher in fact hadthe tapes. The court was then entitled to take steps to securethe tapes.

The majority relies on Hubbell, 530 U.S. at 36, 147 L.Ed. 2d at 36, 120 S. Ct. at 2043, where an indictment againstWebster Hubbell was dismissed because the evidence the governmentproposed to use against him was derived from the testimonialaspect of Hubbell's immunized conduct in previously producingsubpoenaed documents. The question before us, whether the tapesmust be turned over, is not the question addressed in Hubbell. Whether Christopher's acts in turning over the tapes may be usedagainst him in some future proceeding (the issue in Hubbell) isnot an issue in this case.

A case more in point is Baltimore City Department ofSocial Services v. Bouknight, 493 U.S. 549, 107 L. Ed. 2d 992,110 S. Ct. 900 (1990), where a mother was ordered to produce hermissing child and when she refused to do so was found in contemptand imprisoned until she complied with the court order. TheSupreme Court rejected the mother's contention that the contemptorder violated her privilege against self-incrimination. "When aperson assumes control over items that are the legitimate objectof the government's noncriminal regulatory powers, the ability toinvoke the privilege is reduced." Bouknight, 493 U.S. at 558,107 L. Ed. 2d at 1002, 110 S. Ct. at 906; see also Sanders v.Shephard, 185 Ill. App. 3d 719, 733, 541 N.E.2d 1150, 1159 (1989)(father found in contempt and imprisoned until he producedchild). The child in Bouknight was the particular object of theState's regulatory interests (Bouknight, 493 U.S. at 559, 107 L.Ed. 2d at 1002-03, 110 S. Ct. at 907).

If there is a prosecution of Christopher for a violation of the eavesdropping statute, and if the prosecution seeksto use the turnover of the tapes or evidence derived therefrom,Christopher may not be without a remedy. "We are not called uponto define the precise limitations that may exist upon the[s]tate's ability to use the testimonial aspects of Bouknight'sact of production in subsequent criminal proceedings. But wenote that imposition of such limitations is not foreclosed." Bouknight, 493 U.S. at 561, 107 L. Ed. 2d at 1004, 110 S. Ct. at908. The attractive and apparently practical course of subsequent use restriction is not appropriate where a significantelement of the regulatory requirement is to aid law enforcement,but that was not the case in Bouknight. Bouknight, 493 U.S. at562, 107 L. Ed. 2d at 1004, 110 S. Ct. at 908-09, quotingMarchetti v. United States, 390 U.S. 39, 58-59, 19 L. Ed. 2d 889,903-04, 88 S. Ct. 697, 708 (1968).

Christopher's conduct, spying on his wife, is ofparticular governmental concern. His conduct, stalking, keepinghis wife under surveillance, constitutes "harassment" and "domestic violence" under the Illinois Domestic Violence Act of 1986(750 ILCS 60/103(1), (3), (7) (West 2000). The legislature hasdirected that we recognize domestic violence as a serious crimeagainst the individual and society which produces family disharmony in thousands of Illinois families and promotes a pattern ofescalating violence which frequently culminates in intrafamilyhomicide. 750 ILCS 60/102(1) (West 2000). Christopher's spyingon his wife might enable him to determine when she would be aloneor in other situations where she would be susceptible to attack. The trial court did not have to tolerate Christopher's continuedpossession and use of the tapes. The trial court has the powerto direct respondent to promptly make personal property availableto petitioner if "sharing it would risk abuse of petitioner byrespondent." 750 ILCS 60/214(b)(10) (West 2000).