Episode Details

Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific steps to take – in order – to stop this kind of misconduct.  As always, our show notes contain the research on which this episode is based. Note that some podcast sites don’t display lengthy show notes.  If you can’t see all fifteen citations in this episode’s notes, click through to our home page for the full list. Thanks!

SHOW NOTES

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, No. 3:18-CV-1506 (S.D. Cal. 2020) (individual defendant in securities fraud case produced no documents at deposition as required, and walked out after 1 hour 45 minutes, during most of which he allegedly refused to answer many questions, launched into profanity-laced tirades, and continuously invoking the Fifth Amendment; held, Plaintiff may re-depose defendant, and “the Court cautions Defendant Fellner that if he invokes the Fifth Amendment privilege with respect to topics on which he later attempts to present argument or testimony, the court may prevent him from doing so, or may issue other evidentiary sanctions such as giving an adverse jury instruction that the jury’s that the jurors may consider his implication of the privilege during his deposition in assessing his credibility”)

Keating v. OTS, 45 F.3d 322, 324 (9^th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege”)

Sheindlin & Orr, The Adverse Inference Instruction After Revised Rule 37 (E): An Evidence-Based Proposal, 83 Fordham L. Rev. Issue 3 (2014) (discussing the history and implications of adverse inference jury instructions)

Order Granting Plaintiff’s Motion for Summary Judgment, SEC v. Premier Holding Corporation, 2020 WL 8099514. No.: SACV 18-00813 (C. D. California Nov. 30, 2020) (“As a preliminary matter, the SEC asserts that Letcavage should be precluded from offering testimony and other evidence in opposition to its motion for summary judgment because he asserted his Fifth Amendment privilege and refused to answer all substantive questions in his deposition; The Court agrees - while Letcavage certainly has the right to assert the privilege, he “cannot have it both ways. By hiding behind the protection of the Fifth Amendment as to his contentions, he gives up his right to prove them”), citing SEC v. Benson, 657 F. Supp. 1122, 1129 (S.D.N.Y. 1987)

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (trial judge must balance the hardships caused to each party in considering adverse inference instruction, recognizing that there is a tension between one party's Fifth Amendment right and the other party's right to a fair proceeding; decisions when to allow the adverse inference and not to allow it must be determined on a “case-by-case basis under the microscope of the circumstances of that particular civil litigation”)

SEC v. Cutting, 2022 WL 4536816, No. 2:21-cv-00103 (D. Idaho Sept. 28, 2022) (Court grants plaintiff SEC’s motion to preclude defendant, in opposing the SEC’s motion for summary judgment, from introducing evidence, denials, and defenses that he previously withheld by invoking his Fifth Amendment privilege during deposition; “Cutting now attempts to speak on these very matters for which he previously invoked the privilege. ‘But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions” and then tossed aside to support a party's assertions’ ”), citing In re Edmond, 934 F.2d