“I plead the Fifth!” - What to Do When a Party in a Civil Case Invokes the Fifth Amendment in Discovery
Owen M. Praskievicz, Esq.
Schwartz Semerdjian Cauley & Moot LLP
The Fifth Amendment’s safeguard that “No person […] shall be compelled in any criminal case to be a witness against himself” is one of the most well-known provisions in the Constitution. Its use is so ubiquitous these days one might be hard pressed not to imagine Dave Chappelle’s famous “I plead the FIF!” sketch when hearing the words. One thing not everyone might be aware of, however, is that although the language of the Fifth Amendment only mentions its use in a “criminal case,” the Supreme Court has long held that the right can also be invoked in a civil context. (McCarthy v. Arnstein (1924) 266 U.S. 34, 40.)
For better or worse, attorneys do not often find themselves confronted with a civil witness invoking the privilege against self-incrimination during discovery. Perhaps due to its rarity, some attorneys might be unsure how react to a witness’s refusal to testify. Is it going to frustrate the discovery process and wreak havoc at the time of trial? Or is the witness handing the attorney a big victory by closing off their own testimony?
This article tackles the big picture for how to deal with—and how to best take advantage of—a party’s use of the Fifth Amendment during discovery. To be clear, this article does not pass judgment on whether a party’s use of the Fifth Amendment in a civil case is appropriate; as are all things in law, every case is different. But from a pure strategic standpoint, from precluding testimony at trial to moving for issue and discovery sanctions, it’s fair to say that an attorney has more than a few options to explore in the face of a witness pleading the Fifth.
In California, a party to a civil lawsuit is free to invoke his or her privilege against self-incrimination under the Fifth Amendment to prevent the disclosure of information that he or she “reasonably believes could tend to incriminate them or subject them to criminal prosecution.” (A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566.) This protection, however, is not without consequences. (Id.) Most importantly, a party invoking the privilege is not free to limit disclosures during discovery before testifying freely at trial. (Id.)
Perhaps the most significant consequence a defendant claiming the privilege against self-incrimination to avoid discovery risks is the court excluding his or her testimony as to such matters at time of trial. (A&M Records at 566.) In A&M Records, the trial court was confronted by the “difficult problem” of a civil defendant who faced possible criminal prosecution involving the same facts as the civil action. (Id.) The court recognized that, on the one hand, matters which are privileged are outside the scope of discovery and a court may not make an order compelling an individual to make responses which that person reasonably apprehends could be used in a criminal prosecution of him or which could at the least lead to evidence that might be so used. (Id. [citations omitted].) On the other hand, the enactment of the Discovery Act of 1957 was intended to take the “game element” out of trial preparation and do away with surprise at trial. (Id. [citations omitted].) “The accomplishment of this purpose thus compels a trial court to prevent a litigant claiming his constitutional privilege against self-incrimination in discovery and then waiving the privilege and testifying at trial. Such a strategy subjects the opposing party to unwarranted surprise. A litigant cannot be permitted to blow hot and cold in this manner.” (Id. [citations omitted].)
Code of Civil Procedure section 2019, subdivision (b)(1), provides with respect to depositions that “the court may make any ... order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.” This section grants the court the power to preclude at trial the use of evidence withheld by a party at deposition on the basis of the Fifth Amendment privilege against self-incrimination. (A&M Records at 567.) In other words, a party may seek a protective order or motion in limine prior to trial to bar another party from testifying to such matters when the case comes to trial.
Keep in mind, however, that in California, much like in a criminal case, neither the court nor counsel may comment on the fact that a witness has claimed a privilege, and the trier of fact may not draw any inference from the refusal to testify as to the credibility of the witness or as to any matter at issue in the proceeding. (Evid. Code, § 913(a); see People v. Doolin (2009) 45 Cal.4th 390, 441–442.) This bar on commenting on a party’s use of the privilege is at odds with the Federal standard and some other states, which allow for adverse inferences to be drawn against parties in civil actions who refuse to testify in response to probative evidence offered against them. (See Baxter v. Palmigiano (1976) 425 U.S. 308, 319.) To this end, in cases where a party’s refusal to testify is somehow mentioned or discussed, the Judicial Council of California has approved CACI 216, which instructs the jury to not consider the party’s invocation of the Fifth Amendment.
Of course, a court has many other tools at its disposal to accommodate a party’s invocation of the Fifth Amendment in a civil case depending on the specific circumstances of a case, should it so desire. These tools include: staying a civil proceeding until the disposition of the related criminal prosecution, allowing a party to invoke the privilege at trial, or conferring immunity on the party invoking the privilege. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 308.)
But if you are the party against whom the privilege was asserted, and you believe the privilege was used improperly, perhaps the most intriguing options include those contemplated by Code of Civil Procedure 2023.030:
According to section 2023.030, “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party from engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses; (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of discovery process from introducing designated matters into evidence.”
In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason. [Citation.]” (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.) Courts attempt to tailor the sanction to the harm caused by the withheld discovery. (See Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 229.) “So long as the penalty is appropriate to the dereliction and does not exceed the protection required to protect the interests of the party entitled to but denied discovery, its imposition is within the discretion of the trial judge.” (A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 565.)
Occasionally a party will assert the Fifth not just in a deposition but in written discovery as well. In some cases, for example, when a defendant refuses to participate in discovery under the guise of the Fifth Amendment while simultaneously pleading affirmative defenses and numerous allegations against the plaintiffs, such actions should not be rewarded by handicapping the plaintiffs at trial. If this were the case, every single defendant in every single case could plead the Fifth Amendment to avoid disclosing its defenses at trial.
In such cases, one option to consider is moving to exclude evidence as a sanction for discovery; i.e. meaning that, in addition to not being able to testify, the defendant cannot introduce evidence to support his or her case. Exclusion of a party’s evidence based upon that party’s failure to identify the evidence and witnesses in discovery is appropriate if the omission was willful or a violation of a court order compelling a response. (See Code Civ. Proc., §§ 2023.030, 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333-335; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273-275.)
Thus a party confronted with a party asserting the Fifth in written discovery has two options: (1) moving to compel the discovery and getting the Court to issue an order, or (2) if the court has not issued an order compelling a response or further response to an interrogatory (and where such an order has not been violated), the party moving for the exclusion of evidence has the burden of establishing the answer given by the responding party was willfully false, i.e., intentionally not true. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.) When a party is invoking the Fifth Amendment on requests for information that might appear tangential to a pending criminal case, a court may be inclined to grant such an order.
So the next time you see or hear “I plead the Fifth” during discovery, be sure to take stock of all the remedies at your disposal. And to the individual invoking the privilege, you might also want to say “Thank you.”