dissenting in part and in the judgment.
I respectfully dissent from Division 1 (a) (ii) and thus from the judgment reached by the majority. In that division, the majority addresses whether compelling the Dempseys to produce certain financial documents to Kaminski Jewelry, Inc. violates the Dempseys’ federal and state constitutional privilege against self-incrimination. Georgia precedent, not addressed by the majority, clearly establishes that forcing a party to produce documents can violate the privilege against self-incrimination embedded in the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par. XVI; OCGA § 24-9-27 (a). Furthermore, the record reflects that production of the financial documents at issue may be incriminatory as a matter of law under the framework established by our case law. Thus, in my view, the trial court erred by denying the Dempseys’ motions for a protective order.
As an initial matter, I agree with the majority’s conclusions that, under the circumstances of this case, requiring the Dempseys to produce the requested documents does not violate the right against self-incrimination under the federal Constitution. Because of the fact-specific nature of the inquiry under the federal Constitution,3 we *820must presume, absent a transcript, that the trial court conducted the requisite inquiry and that the evidence supported his factual determination that production of the documents would not be incriminating under the Fifth Amendment.
However, that does not end the inquiry. It is well settled that the state Constitution affords more protection than the federal Constitution in this context.
Georgia has long granted more protection to its citizens than has the United States and... while the States cannot grant less protection they can grant more.... While the language in the United States Constitution has been construed to be limited to “testimony,” the Georgia Constitution has been construed to limit the State from forcing the individual to present evidence, oral or real.
(Emphasis omitted.) Creamer v. State, 229 Ga. 511, 515-516 (3) (192 SE2d 350) (1972).
And, Georgia courts have on several occasions held that requiring a party to produce certain documents or things constitutes the doing of a self-incriminating act against his will in violation of the state Constitution. See, e.g., Mallin v. Mallin, 226 Ga. 628, 629 (176 SE2d 709) (1970) (defendant had a constitutional right to refuse to produce documents reflecting “income or financial status”); Stanfield v. State, 176 Ga. App. 424 (1) (336 SE2d 337) (1985) (defendant should not have been forced to produce results of additional blood test requested by defendant and conducted at local hospital); Johnson v. State, 156 Ga. App. 496, 499 (274 SE2d 837) (1980) (defendant could not be forced to produce an automobile, transceiver and flight manual in controlled substance prosecution); J. D. Jewell, Inc. v. State ex rel. Hancock, 227 Ga. 336, 339 (180 SE2d 704) (1971) (trial court should have granted defendant’s motion to quash plaintiffs’ request for production of documents, when it was clear that documents could be used to prove criminal contempt); Grant v. State, 85 Ga. App. 610, 613-614 (69 SE2d 889) (1952) (trial court erred in admitting lottery ticket which defendant was forced to produce). See also Wilson v. State Bar of Ga., 225 Ga. 343, 346 (168 SE2d 584) (1969) (attorney in disciplinary proceeding may move to quash or modify notice to produce to resist the production of documents or records which might have the effect of incriminating him). These cases plainly hold that *821the production of documents can constitute a self-incriminatory act under the Georgia Constitution.
Under most circumstances, “the fact that a party raises the privilege does not of itself establish the hazard of incrimination. It is for the court to say whether his [raising of the privilege] is justified.” (Citation and punctuation omitted.) Axson v. Nat. Surety Corp., 254 Ga. 248, 250 (327 SE2d 732) (1985). The relevant inquiry is whether the documents sought to be produced “would in themselves support a conviction” or “would provide a link in the chain of evidence needed to prosecute.” (Punctuation and footnote omitted.) Begner v. State Ethics Comm., 250 Ga. App. 327, 330 (1) (552 SE2d 431) (2001). See also Axson, 254 Ga. at 250. The burden is upon the party invoking the privilege “to provide sufficient information on which the court may find that a real danger of incrimination exists.” (Citation and punctuation omitted.) Axson, 254 Ga. at 250; In re Purohit, 213 Ga. App. 182, 184 (b) (444 SE2d 133) (1994).4
In contrast, under the limited circumstances where the request for production seeks to compel documents containing extensive and detailed financial information, settled Georgia precedent establishes that forcing the act of production may be incriminatory as a matter of law. In such circumstances, there is nothing for the trial court to determine because only the responding party can weigh the effect of such disclosure. Compare Mallin v. Mallin, 227 Ga. 833, 835 (2) (183 SE2d 377) (1971); Begner, 250 Ga. App. at 330 (1); Busby v. Citizens Bank of Hapeville, 131 Ga. App. 738, 740-741 (206 SE2d 640) (1974) with Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984); Chambers v. McDonald, 161 Ga. App. 380, 380-381 (1) (288 SE2d 641) (1982).
In their motion to compel, Kaminski Jewelry alleged that it was seeking production of the requested financial documents because it believed that the Dempseys deposited stolen funds in their personal bank accounts or used the stolen funds to purchase securities or other financial instruments, the interests and dividends of which would be reflected on their tax returns. As such, the requests for production sought all state and federal tax returns, bank statements, deposit slips and cancelled checks for all individual and joint accounts, savings account records, certificate of deposit records and money market records — all for the past ten years. Based on the precedent *822cited above, as well as the fact that the criminal process is underway, I believe we are constrained to hold that the extensive and detailed financial documents sought for production may tend to incriminate the Dempseys as a matter of law and that the trial court therefore erred in requiring their production.5 See Mallin, 227 Ga. at 835 (2); Begner, 250 Ga. App. at 330 (1); Busby, 131 Ga. App. at 740-741. Hence, in my view, we are bound to reverse the trial court’s order on this ground.
Decided March 28, 2006 Reconsideration denied April 13, 2006 Sams, Larkin & Huff, David P. Hartin, Michael P. Pryor, William C. Gentry, for appellants. Browning & Smith, Thomas J. Browning, for appellee.Significantly, however, the factfinder in a civil case is entitled to draw an adverse inference from a party’s refusal to produce documents and may infer that the documents would have been harmful. See In the Matter of Henley, 271 Ga. 21, 22 (2) (518 SE2d 418) (1999) (noting that an “adverse inference . . . could have been drawn had [defendant] refused production based upon his privilege against self-incrimination”); Sanders v. State of Ga., 259 Ga. App. 422, 425-426 (2) (577 SE2d 94) (2003); In the Interest of M. V., 253 Ga. App. 669, 672 (560 SE2d 125) (2002). The refusal to produce the documents constitutes “an implied admission that [the documents] would tend to prove that the [party] committed the act” of which he is accused. (Citations and punctuation omitted.) Simpson v. Simpson, 233 Ga. 17, 21 (209 SE2d 611) (1974); In the Interest of S. B., 242 Ga. App. 184, 186-187 (1) (528 SE2d 278) (2000). Thus, contrary to the majority’s assertion, a reversal in this case as to this issue would not give parties an incentive to “always refuse to produce relevant financial documents.”6
Because the privilege against self-incrimination protected by the United States Constitution applies only to testimony, “the contents of voluntarily prepared business records are not protected by the fifth amendment privilege.” (Emphasis supplied.) United States v. Argomaniz, 925 F2d 1349, 1355-1356 (11th Cir. 1991). However, under certain circumstances the act of producing documents is considered sufficiently testimonial to itself implicate the privilege protected by the federal Constitution. United States v. Doe, 465 U. S. 605 (104 SC 1237, 79 LE2d 552) (1984). Thus, “the act of producing [documents] — if it is compelled, testimonial and incriminating- may, in itself be privileged.” Butcher v. Bailey, 753 F2d 465, 469 (6th Cir. 1985).
As part of determining whether the privilege applies in this context, federal courts generally consider two factors. First, they look to whether “the existence and location of the [requested] papers are unknown to the government.” (Citation and punctuation omitted.) In re Grand Jury Subpoena Duces Tecum Dated October 29, 1992, 1 F3d 87, 93 (2d Cir. 1993). If “the existence and location of the papers are a foregone conclusion” based on information already known to the government, the act of producing the documents does not implicate the privilege. Fisher v. United States, 425 U. S. 391, 411 (96 SC 1569, 48 LE2d 39) (1976). See also United States v. Hubbell, 530 U. S. 27, 45 (120 SC 2037, 147 LE2d 24) (2000); United States v. Norwood, 420 F3d 888, 895-896 (8th Cir. 2005). Second, federal courts look to whether the government “can independently authenticate the [documents] without using [the party’s] act of producing the [documents] as evidence of their authenticity.” United States v. Rue, 819 F2d 1488, 1494 (8th *820Cir. 1987). See also United States v. Clark, 847 F2d 1467, 1473 (10th Cir. 1988). If the government can do so, then authentication of the documents is a foregone conclusion that does not sufficiently implicate the right against self-incrimination. Rue, 819 F2d at 1494; United States v. Ghidoni, 732 F2d 814, 819 (11th Cir. 1984).
“If the trial court determines from all the circumstances that the danger of incrimination is not ‘real and appreciable,’ then the matter is subject to the attendant rules of discovery, including appropriate sanctions.” (Citation and punctuation omitted.) In re Purohit, 213 Ga. App. at 184 (b). Conversely, “[i]f the trial court determines the privilege has been properly raised, then the matter is not discóverable, OCGA§ 9-11-26 (b) (1).” (Citation and punctuation omitted.) Id.
Of course, the Dempseys’ privilege against self-incrimination does not prevent Kaminski from seeking the documents from appropriate third parties.
Additionally, as already noted, discovery sanctions are available to deter overly broad assertions of the privilege.