A Civil Deponent’s Right to Remain Silent
Alison K. Adelman, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Fifth Amendment jurisprudence is a topic civil litigators may remember studying in law school, but do not often face in their day-to-day practice. However, by familiarizing themselves with the law of the Fifth Amendment as it applies to civil matters, attorneys may just save the day for their clients.
Discovering the information potentially protected by the Fifth Amendment can be very beneficial to a civil litigant. The information could assist attorneys in analyzing a case’s likelihood of success, shed light on how the deponent would present as a witness, provide leverage in settlement negotiations, or even lead to the discovery of dispositive admissible evidence.
Pleading the Fifth Amendment privilege during a deposition implicates multiple competing interests: the constitutional right of a potential criminal defendant to avoid exposure to criminal prosecution and the risk of forfeiting the privilege if not timely asserted; the right of a civil plaintiff to conduct discovery and avoid surprise at trial; and the interest of courts to fairly and efficiently dispose of cases. The applicability of the Fifth Amendment right to remain silent in civil cases may not be mainstream but is of crucial importance to the zealous representation of both plaintiffs and defendants.
The privilege against self-incrimination is provided by both the United States and California Constitutions, and serious implications arise if it is not timely asserted. The Fifth Amendment can be asserted in more than just criminal proceedings, including civil, administrative, judicial, investigatory, or adjudicatory actions. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688, citing Kastigar v. United States (1972) 406 U.S. 441, 444.) If a party during a civil case does not timely assert the privilege against self-incrimination, he or she risks waiving the privilege in later criminal proceedings, at least regarding the matters to which he or she testified. In contrast to criminal proceedings, courts have held that a jury or judge may consider and make negative inferences against civil litigants who invoke the Fifth during a civil action. (See Avant! Corp v. Superior Court (2000) 79 Cal.App. 4th 876, 885-86.)
There are a few situations where a party to a civil case should be aware of the Fifth Amendment and its protection. For example, a civil defendant may be subject to (or fear) criminal prosecution based on the same facts from which the civil case against him or her arose. Some examples of this situation are: a man facing a civil action for sexual molestation fearing prosecution under the penal code for the same conduct; security guards facing tort causes of action for beating up invitees, fearing criminal prosecution for the same conduct; or a liquor store that breached the Alcoholic Beverage Control Act, under which the penalties are both civil and penal. (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414; Fuller v. Superior Court (2001) 87 Cal.App.4th 299; Peck’s Liquors, Inc. v. Superior Court (1963) 221 Cal.App.2d 722.) On the other hand, a plaintiff, defendant, or third party could anticipate or currently be subject to criminal allegations based on entirely separate conduct, which may arguably be relevant in the civil suit. An example of this would be a plaintiff in an intentional misrepresentation case seeking discovery of information about a concurrent but unrelated criminal fraud investigation of the defendant.
A party’s testimony could have significant bearing on the result of the civil case, but could also threaten the validity of his or her privilege against self-incrimination in a later or concurrent criminal case. Thus, it is important to consider when it is appropriate to plead the Fifth Amendment during the discovery process.
Admissibility vs. Discoverability
A common setting in which the Fifth is pled during a civil case is in a deposition. Attorneys may try to use evidentiary rules as grounds to prevent the deposition altogether, or to limit questioning if information sought could subject their client to prosecution. Even if the Fifth is properly asserted by the client or attorney, the underlying facts may nonetheless be discoverable, as discoverability is broader than admissibility.
California Code of Civil Procedure section 2017.010 establishes the broad scope of discovery, which includes information sought in a deposition: “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Discovery cannot be denied simply on the ground that evidence to be discovered would not be admissible at trial. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 391-93.) Additionally, in deciding a discovery motion, whether evidence might be excluded at trial is “not a relevant consideration.” (Norton v. Superior Court (1996) 24 Cal.App.4th 1750, 1760-61.) Furthermore, the “party seeking discovery is entitled to substantial leeway,” and generally “courts  resolve any doubt in favor of permitting discovery.” (Id. at 1761.)
These rules make clear that even though the underlying or potential criminal allegations could eventually be held inadmissible at trial, they may be discoverable at a deposition.
The most obvious option if your client is faced with this situation is to plead the Fifth Amendment during the deposition. However, civil defendants do not have the absolute right to invoke the privilege against self-incrimination. A party may be required to waive the privilege or accept the civil consequences of silence if he or she does not exercise it. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712.) Civil defendants may be forced to choose the lesser of two evils: defend the litigation by testifying to incriminating information, or potentially lose the civil matter by remaining silent.
Even if an attorney anticipates the deposer will bring up incriminating information, his or her client must appear for the deposition. In Blackburn v. Superior Court, an accused man was civilly sued for conduct for which he could also be criminally prosecuted. (Blackburn, supra, at 420.) He refused to answer most of the questions at his deposition claiming the privilege against self-incrimination; however the man based his claims on “mere possibilities and speculation.” (Id. at 428.) The court held that his “blanket refusal to provide information [was] unacceptable.” (Id. at 431.)
Blackburn makes clear that an attorney cannot use the mere possibility that the client will be asked potentially incriminating questions to refuse to appear at a deposition. The court stated that pleading the Fifth is “confined to instances where the witness has reasonable cause to apprehend danger from a specific answer to a specific question,” considering both the implications of the question and the setting in which it is asked. (Id. at 427.) A party is not “entitled to decide for himself whether he is protected by the Fifth Amendment privilege.” (Id. at 428.) Only after each question is asked can the court determine if the question would elicit privileged matters that lie beyond the scope of discovery.
The court in a comparable case, Fuller v. Superior Court, held similarly despite admitting that the parties were under the threat of criminal prosecution. (Fuller, supra, at 308-10.) There, while confirming the threat of criminal prosecution, the court ordered the depositions to proceed so it could acquire sufficient information to determine whether the constitutional privilege was implicated. (Id.) If your client is a deponent in this situation, he or she must plead the Fifth in response to each incriminating question, as opposed to a blanket refusal to answer all questions or appear for the deposition. Although refusing to answer may lead to lengthy and costly discovery battles, it will give the court a clearer record upon which to rule, as it can examine the context and particular questions asked.
Besides allowing a civil party to invoke the privilege against self-incrimination, courts have carved out different procedural protections that safeguard the interests of all parties. First, courts recognize a potential problem with civil defendants invoking the Fifth initially, and then later surprising the plaintiff by waiving the privilege and testifying at trial. The enactment of discovery rules was partially intended to take the “game element” out of trial preparation and avoid surprise at trial. (Greyhound, supra, at 376.) To avoid prejudice, courts may, when allowing a party to invoke the Fifth during a deposition, preclude that litigant from later testifying at trial to matters previously claimed as privileged as “[a] litigant cannot be permitted to blow hot and cold in this manner.” (A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d. 554, 566.) In preparing for a deposition or discovery, both sides should scrupulously weigh the pros and cons of asserting the Fifth and its implications at an impending civil trial.
Courts have also agreed to stay civil proceedings until the related criminal prosecution is complete. After the disposition of the criminal case, the criminal defendant could then testify in the civil matter without the fear of self-incrimination. Notably, the California Evidence Code is more lenient in admitting actual convictions rather than bad conduct not yet investigated or criminal allegations not yet completed, so the party seeking to admit this conduct may have an interest in waiting out the criminal case. (See Cal. Evid. Code § 788.)
Another interesting option for the party invoking the privilege is to seek immunity from criminal prosecution on the matters civilly testified to. Although the Fifth Amendment does not provide a constitutional right to immunity, courts have held, “from the standpoint of fairness, a witness in a civil case may call upon the courts for protection as long as that protection would not unduly hamper prosecutors,” who can object to the immunity. (Blackburn, supra, at 432.) However, this may prove unrealistic as the private litigant must provide information sufficient for the prosecutor to make an informed judgment, which may require surrendering the very information he or she claims is privileged. (Id.) It may nonetheless be worth considering depending on the specific circumstances of the case.
Although the Fifth Amendment privilege against self-incrimination is not traditionally encountered in the civil arena, attorneys should examine the various tools within the context of each particular case and seriously consider which procedure may best protect their clients’ interests. Understanding the different options may well result in a favorable result for your client, whether it be a civil plaintiff attempting to obtain crucial evidence, or a civil defendant avoiding future or concurrent criminal prosecution.
 Some authority on this subject stress that for an effective waiver, the witness must have knowledge of the privilege to refuse to answer incriminating questions. For nation-wide case annotations regarding testifying in civil proceedings as waiver of the Fifth Amendment privilege, see 72 A.L.R.2d § 830.
 A party may also waive his or her privilege by voluntarily answering interrogatories.
 For an in depth discussion of the possibility of obtaining a continuance or stay, see 37 A.L.R.6th § 511.