Civil Discovery and the Fifth AmendmentAuthor(s): Brian O'NeillSource: Litigation, Vol. 11, No. 1, CIVIL LAWYERS AND CRIMINAL CASES (Fall 1984), pp. 32-34, 61-62Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758934 .

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Civil Discovery and

the Fifth Amendment

by Brian O'Neill Civil lawyers and criminal lawyers are spending a lot of time these days looking at the same conduct. While white collar crime prosecutions for commercial activity proliferate, civil

litigation under the Racketeering Influenced and Corrupt Organizations Act explodes. Whether someone faces a civil lawsuit or a criminal prosecution may depend on the mere accident of whether a private plaintiff or a public agency is the first to learn a set of facts. Often a person faces both actions.

To represent your client competently when one of the par? ties to a civil suit faces criminal prosecution, you must go beyond your usual routine and examine the implications of the criminal litigation. No, you do not need to retake that first year criminal procedure course that never sank in. But a few matters merit review.

When civil and criminal cases mix, the thorniest discovery problems come from the Fifth Amendment privilege against self-incrimination. The issue can arise whenever one of the

parties is at risk in an imminent criminal case. While the

history and wording of the Fifth Amendment privilege sug? gest that it applies only to criminal proceedings, a person may invoke it in any forum: Lefkowitz v. Turley, 414 U.S. 70

(1973). Your client does not have to wait for the ultimate ques?

tion, "Did you fix prices?" before invoking the privilege. Otherwise a clever questioner could extract enough pieces of information from the witness to construct a mosaic of his criminal liability. Recognizing this possibility, the Supreme Court held in Hoffman v. United States, 341 U.S. 479 (1951), that a witness can invoke the privilege in response to any ques? tion when the answer could provide a link in the chain of evidence leading to the witness's incrimination.

A reasonable fear of prosecution based upon the mere ap? pearance of impropriety justifies invocation of the Fifth Amendment. In Slochower v. Board of Education, 350 U.S. 551, 557 (1956), the Court held:

[A] witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege

The author practices law in Santa Monica, California.

serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. The client under criminal investigation not only may but

must invoke the privilege when the answer sought might be

incriminatory. Failure to do so waives the privilege, and the evidence in the civil case could then be used for criminal pros? ecution. United States v. Kordel, 397 U.S. 1 (1970).

A party invoking the privilege to oppose discovery bears the burden of demonstrating its propriety. But the party's attorney often cannot describe precisely the manner in which the privileged matter would tend to incriminate. The descrip? tion itself could provide incriminating leads and defeat the

purpose of the privilege. Nor could counsel make an in camera disclosure since that would run afoul of Disciplinary Rules 4-101 (A) and 4-101(B) of the American Bar Associa? tion's Code of Professional Conduct which enjoin silence as to matters communicated in confidence by the client. Ac?

cordingly, an attorney can meet the burden of justifying op? position to discovery by representing that he has consulted with the client, assessed the circumstances, and concluded that the client's answers would tend to incriminate.

As a general rule, only a natural person can claim the

privilege. Corporations, trusts, labor unions, and similar

organizations, are not protected by the Fifth Amendment. However, courts have held the Fifth Amendment applicable to legal entities closely approximating a natural person, such as sole proprietorships, Stuart v. United States, 416 F.2d 459

(5th Cir. 1969). Because the privilege is personal, it may not be invoked

vicariously. A corporate officer may not claim his own

privilege to resist the production of corporate documents, United States v. Giordano, 419 F.2d 564,569 (8th Cir. 1969), moreover, a corporation may not refuse to produce docu? ments on the ground that they would incriminate corporate employees. FlavorlandIndustries Inc. v. United States, 591 F.2d 524 (9th Cir. 1979).

Although documents may be incriminatory, the witness

usually cannot resist production because he cannot claim that he was compelled to prepare them. However, if the act of

production itself would be incriminatory ? for example to

authenticate the documents or to show that the witness was

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^^^^^^^^^^^^ in possession of the documents ? the witness may invoke the Fifth Amendment against disclosure. United States v. Beat tie, 522 F.2d 267 (2d Cir. 1975).

How can you respond when your opponent invokes the

privilege against self-incrimination to prevent discovery? Sanctions are unlikely. Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), held that a court can? not default a party for validly exercising a constitutional right in refusing to provide discovery, although in Lyons v.

Johnson, 415 F.2d 540 (9th Cir. 1969), the court granted judg? ment against a plaintiff who refused to respond to any discovery requests while at the same time prosecuting his own claim.

Even less likely is an immunity order for the witness, pro? hibiting use of his deposition testimony in any criminal pro? ceeding, so that the privilege against self-incrimination becomes inapplicable. Under the federal immunity statute, only the United States Attorney is empowered to seek such an order. 18 U.S.C. ? 6003.

However, at least one state (California) allows a civil litigant to seek an immunity order for a witness who has in? voked the Fifth Amendment privilege. Daly v. Superior Court, 19 Cal.3d 132 (1977). California procedure requires notification of both the District Attorney and United States Attorney. If neither objects, the California court will enter an immunity order compelling the witness to testify.

If a civil litigant has testified pursuant to a grant of im?

munity, the testimony is available for use in any civil or ad? ministrative proceeding, whether state or federal. Patrick v. United States, 524 F.2d 1109, 1120 (7th Cir. 1975). But a

deponent who has previously testified pursuant to a grant of use immunity cannot be compelled to testify to the same matter in a deposition, unless he receives assurance of im?

munity for the deposition testimony because otherwise the

deposition testimony could be used against him in a criminal

prosecution. Pillsbury Co. v. Conboy, 103 S. Ct. 608 (1983). A party in a civil suit who is also exposed to criminal pros?

ecution may require greater protection than that provided solely by the privilege against self-incrimination. He should be spared the injustice of having to defend against both a civil and criminal action at one time, see United States v.

Amrep Corp., 405 F. Supp. 1053 (S.D.N.Y. 1976), and also should not have to disclose prematurely a defense that he will raise in the criminal proceedings. United States v. Simon, 262 F. Supp. 64 (S.D.N.Y. 1966), rev'd, 373 F.2d 649 (2d Cir. 1967).

There are several remedies available under both the Civil Rules and the Criminal Rules.

The most effective remedy, available under Rule 26(b) of the Federal Rules of Civil Procedure, is an order enjoining discovery to protect the litigant's right to a fair criminal trial. The remedy of a stay of civil proceedings was suggested by the Supreme Court in United States v. Kordel, 397 U.S. at 9 (1970).

The party seeking a stay bears the burden of persuading the court that a stay should be granted under the particular circumstances of the case. The court must balance the criminal defendant's right to a fair trial against the right of a civil litigant to pursue a valid claim. Courts have both granted and denied stays and imposed stays conditioned upon events in the criminal case. Where the criminal defendant faces a substantial risk to his right to a fair trial, courts im? pose stay orders to protect his rights. But the stay will not go beyond what is necessary for that purpose. The civil litigant may ordinarily pursue the other aspects of his claim and is denied access only to the protected materials and only for a period necessary to protect the rights of the criminal defendant.

In the leading case of Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), the plaintiff charged CBS with defamation for statements made in a news story about trade schools he operated. The plaintiff was then the

subject of a grand jury investigation, having testified several times before the grand jury. When the plaintiff was asked at his deposition about the operations of the school, he in? voked his Fifth Amendment privilege. The trial court dis? missed the action when the plaintiff continued to assert his privilege. The Court of Appeals, however, reversed the trial court and directed entry of an order staying discovery for three years, the time remaining under the applicable criminal statute of limitations.

When the criminal proceedings are over or there is no substantial criminal exposure, the courts have denied relief. In General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1214 (8th Cir. 1973), the defendant sought an indefinite stay

of civil proceedings and asserted his right to resist discovery even after he had been convicted on criminal charges. He

argued that the criminal matter was not terminated because a criminal appeal was pending. The court held that while the defendant's rights were substantial, further delay would

jeopardize the plaintiffs rights, which had already suffered because of the death of one defendant and the departures of witnesses since the lawsuit had commenced.

If the court is not persuaded of the need for a stay, it can

impose other conditions to protect the interests of the party facing criminal prosecution. In DTppolito v. American Oil Co., 272 F. Supp. 310 (S.D.N.Y. 1967), the court refused a stay but ordered that depositions be taken under seal, preserved under seal, and not opened until completion of the

parallel criminal trial.

An order sealing discovery is less satisfactory than a stay of discovery. Even when sealed, deposition testimony or answers to interrogatories can be dangerous to a person with

potential criminal liability. The mere existence of that evidence may encourage litigants, private and governmen? tal, to try to obtain it. Exactly that occurred in Wilk v.

American Medical Association, 635 F.2d 1295 (7th Cir. 1980) and Martindell v. ITT, 594 F.2d 291 (2d Cir. 1979). In both

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instances the court protected the confidentiality of the material. But if the material were to leak out, it could be used

by the prosecution in the criminal case. A party may also invoke the power of the court where the

criminal action is pending or which supervises the grand jury conducting the criminal investigation to protect against civil

discovery that would jeopardize the rights of the criminal defendant. Rule 2 of the Federal Rules of Criminal Procedure

provides that the rules "are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure [and] fairness in administration...." Supplementing Rule 2's broad charter is Rule 57(b), which provides, "If no procedure is specifically prescribed by rule, the court may proceed in any lawful man? ner not inconsistent with these rules or with any applicable statute." The district court also has inherent supervisory power over the administration of criminal justice. McNabb v. United States, 318 U.S. 332, 340 (1943).

There has been little litigation in this area. One court has held that Rules 2 and 57(b) and the inherent supervisory power authorize the criminal court to issue protective orders

binding upon the parties as well as persons who are not party to the criminal action. United States v. Simon, 262 F. Supp. at 71. In United States v. Birrell, 276 F. Supp. 798 (S.D.N.Y. 1967), the district court noted that it had both the inherent

power to supervise the administration of criminal justice and

power under Rule 57(b) to enjoin civil proceedings involv?

ing the same facts as were involved in a criminal prosecution pending before the court. But it declined to exercise its power, because the evidence in the civil plaintiffs hands had already been the subject of a suppression order in the criminal case and thus could not harm the criminal defendant.

But protection from the criminal forum may be limited.

Although a court supervising an investigative grand jury has inherent power to ensure fairness in the grand jury proceeding, it is unlikely that a party seeking protection against civil

discovery could persuade a supervising court to intervene

prior to an indictment.

Also, one court has urged that the preferable forum for remedial relief is the court where the civil case is pending, and that "it is only in exceptional circumstances that the district court in which the criminal case is pending should

enjoin the taking of such a deposition." DTppolito v. American Oil Co., 272 F. Supp. 310 (S.D.N.Y. 1967) (quoting United States v. Simon, 373 F.2d 649,653 (2d Cir.

1967), cert, granted sub nom. Simon v. Wharton, 386 U.S. 1030 (1967)). But that proposition has not been developed further.

Parties who are the targets of criminal actions are not the

only ones who may seek protective orders to prevent civil

discovery from being used in criminal proceedings. The

government too can seek a stay when a criminal defendant

attempts to use the liberal civil discovery rules in a parallel civil action to avoid the severe limitations of criminal

discovery.

In Campbell v. Eastland, 307 F.2d 478,487 (5th Cir. 1962), a civil plaintiff seeking a refund against the Commissioner of Internal Revenue sought production of the IRS criminal

investigative files. The court held that the trial court should review such requests to determine the effect civil discovery would have on a criminal proceeding that is pending or just about to be brought and if a party would gain an advantage in the criminal case by utilization of civil discovery, a stay should be ordered. The court stressed the importance of

maintaining the integrity of the differing rules governing discovery in criminal and civil cases.

In United States v. Mellon Bank N. A., 545 F.2d 869, 873

(3d Cir. 1976), the court granted a stay order to protect the

government against the defendant's use of civil discovery to

inquire into the government's evidence in a criminal case in?

volving the same facts as the civil case.

A criminal investigation or prosecution of the opposing party in a civil suit does not produce only obstacles. The materials gathered by the investigative agency or the grand jury can be a rich resource for the civil litigant.

That is not to say that obtaining these materials is easy. Federal Rule of Criminal Procedure 6(e)(1) provides that mat? ters occurring before a grand jury are to be secret and viola? tions of secrecy are punishable by contempt. A private litigant seeking to obtain grand jury materials must demonstrate a

"particularized, more discreet showing of need" to overcome the policy favoring grand jury secrecy. United States v. Pro? ctor & Gamble Co., 356 U.S. 677, 683 (1958).

There is a three-pronged test for determining whether that

secrecy may be broken: "Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is need? ed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for con? tinued secrecy, and that their request is structured to cover

only materials so needed." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 at 222 (1979). When the criminal case has terminated and the grand jury material would not

compromise the interests of innocent third parties, courts tend to grant Rule 6(e) orders to civil litigants able to stidw a need.

The authority for obtaining information from federal

agencies, including criminal investigative files, is the Freedom of Information Act. The Act mandates disclosure of "agency records" to "any person" upon request (5 U.S.C. ? 552(a) (3)), subject to certain statutory exemptions. Exemption No. 7

(Please turn to page 61)

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insufficient evidence to warrant a retrial. Finally, on February 1,1978, the United States formally moved to dis? miss all charges against Filipina Narciso and Leonora Perez. It was the first government motion that the defense did not oppose.

Credible

Criminals

(Continued from page 28) would spend less time in jail, not out of a desire to be a good citizen.

Three, the witness should be ready to handle compound questions, confusing questions, or questions that shade or misstate the facts. He should be able to do this himself, without the help of the

prosecutor. Suppose the witness is asked "How many days did you rehearse your testimony with the prosecutor?" The witness must understand that if he spent a total of four hours over three separate days talking to the prosecutor, he should answer "four hours," not "three

days." Furthermore, the witness should not accept the cross-examiner's

characterization of these four hours as a "rehearsal."

The prosecutor should make as few

objections as possible during the cross examination. He does not want it to seem that he is trying to protect the witness. He wants the jury to view the

accomplice as a witness whose testi? mony is so truthful that it can withstand the test of cross-examination without outside assistance.

At the end of the trial, the prosecutor usually has two summations: the prin? cipal argument and rebuttal. Most of the arguments supporting the accom?

plice should be saved for rebuttal, after the defense has made its attack and has no further reply. In the principal argu? ment, the prosecutor should focus once more on whether the accomplice was

telling the truth, not on whether he is a bad person. But the bulk of the sum? mation should be the story told by the evidence. It should assume the ac?

complice is believable and weave the

corroborating evidence into the basic story.

Although every case is different, the defense summation will somehow ask the jury to disbelieve the accomplice

because of his criminal background. There are a number of general lines of rebuttal that can be tailored to each case.

First, the defense will probably attack the law enforcement authorities for us?

ing a witness with such a sordid past. The most effective response is to ask the jury what responsible law enforcement officials who have cornered a criminal like the accomplice should do. Should they refuse to listen to what crimes have been committed because of the witness's

background? Or should they listen skeptically and see if the other evidence supports what he says?

Another response is the importance of having an accomplice testify, especially in a conspiracy case. By its nature, any criminal conspiracy is a secretive group with ringleaders who are insulated by underlings. The only way law enforcement authorities can bring the leaders to justice is through the testimony of their associates. The pros? ecutor can argue that he would have preferred to have had the testimony of a respectable citizen, like a bank presi? dent or a school principal, but honest citizens are not the type of person a criminal deals with.

Second, the defense will argue that the immunity witness is motivated to

produce results for the prosecution. In the Tieri case, the defense argued that Fratianno invented Tieri's involvement in a murder plot and a bankruptcy fraud so Fratianno would have some? one to deliver to the government. There are good responses to this argument, and they all work in similar cases.

One, the agreement motivated Frati? anno to tell the truth. If he lied, he could be prosecuted for perjury as well as all of his other crimes ? including the murders. Would Fratianno take such an enormous risk and lie? Note that it is important for the prosecutor to present this argument without personally vouching for the accomplice's credibili? ty, which is an improper argument. See United States v. Arroyo-Angulo, 580 F.2d 1137, 1147 (2d Cir. 1978), cert.denied, 439 U.S. 913 (1978).

Two, Fratianno had no motive to single out Tieri. The evidence did not show any animosity between the two. They were members of the same

organization, the Mafia. Three, if Fratianno were lying, he

would have invented a better case

against Tieri. This was a telling point because Fratianno's testimony against

Tieri was brief, its most incriminating part simply described two short

meetings. In rebuttal, the prosecutor can often

use the defense's cross-examination in arguing the accomplice's credibility. In most instances, defense counsel makes little or no headway in shaking the ac?

complice on the substance of his testimony. The argument is that in cross-examination, the real test of truth, the defense did not dent the witness's testimony.

Finally, the defense lawyer probably asked the accomplice some questions on cross-examination that do not make much sense at the end of the case. This is usually because the defense was unable to develop other evidence to con? nect with this dangling information. For

example, a series of questions about the description of the defendant's clothing on a particular day may make no sense if his clothing turns out to have nothing to do with the case. This last argument is that the defense asked meaningless questions on cross-examination because

he had nothing else to ask in his futile attempt to discredit the accomplice's testimony.

Civil

Discovery

(Continued from page 34) exempts from disclosure investigative records compiled for law enforcement purposes if disclosure would result in harm. To resist discovery, the govern? ment must show that "disclosure would either constitute an unwarranted inva?

sion of personal privacy or disclose the identity of a confidential source. Un?

warranted, in this context, means with?

out justification or adequate reason.' Philadelphia Newspapers, Inc. v. U.S. Depart, of Justice, 405 F. Supp. 8, 12 (E.D. Pa. 1975). Where the criminal in? vestigation has terminated and no privacy interests are implicated, crim? inal investigative materials should be provided under the Act.

When you seek information under the Freedom of Information Act, you

may face serious resistance from the government. Resistance must be over

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come by independent litigation. None? theless, as government investigative resources are almost always consider?

ably greater than those of private liti? gants, the use of the Act to discover the

government's investigative files is a device that deserves more attention. 14 Am. Crim. L. Rev. 73 (1976).

The greatest benefit in a civil case is the conviction of your opponent in a parallel criminal case. The conviction can even be dispositive of the civil litigation. The defendant may be

collaterally estopped from re-trying issues in a subsequent civil action so

long as he had the opportunity to litigate those issues in the criminal case. That result has been most common in an? titrust litigation, United States v. Na? tional Association of Real Estate Boards, 339 U.S. 485 (1950), but also has been applied to patent infringement actions, Blonder-Tongue Laboratories, Inc. v. University of Illinois Founda? tion, 402 U.S. 313 (1971), mail fraud, United States v. Frank, 494 F.2d 145, 160 (2d Cir. 1974), and RICO, Ander? son v. Javonich, 543 F. Supp. 1124

(W.D. Wash. 1982). If your client is the one facing

criminal charges, these collateral civil consequences require careful attention in plea negotiations. Do your best to

negotiate a plea to limit the defendant's civil exposure (negotiating on charges) or to avoid collateral liability (negotiating a nolo contendre plea).

Plumber

Comes

(Continued from page 10) defendant should ordinarily be released

pending trial on his own recognizance or on his execution of an unsecured bond. 18 U.S.C. ? 3146(a). The court

may impose additional conditions of release only after a finding that the con? ditions are necessary to secure the defendant's appearance. After making such a finding, however, the court may impose various conditions, ranging from release into someone's custody to a traditional cash bond.

You must determine at which point your jurisdiction sets these conditions

of release. In federal proceedings, a defendant's conditions of release are established at his first appearance before a judicial officer. This is usually the arraignment. But state procedures vary. In some states, the court issuing the warrant will endorse on the warrant the amount of bail required. In others, the police are authorized to release a defendant on bail according to an ap? proved schedule keyed to the nature of the charge.

If your client is not released through one of these methods, bail will be set at an "initial appearance" before a judicial officer. Almost all states have statutes

requiring that the defendant's initial ap? pearance occur "without unnecessary

delay," "immediately," or within a

specified time, usually 24 to 48 hours. See ALI, A Model Code of Pre Arraignment Procedure, Appendix I, at 626-27 (Proposed Official Draft

1975).

Finding a Judge The actual timing of the initial ap?

pearance, however, will depend on when a judicial officer is first available to set bail after your client's arrest. Some

jurisdictions have night court or bail commissioner systems to ensure that conditions of release can be established

promptly even for defendants arrested at night or on the weekend. Defendants in other jurisdictions are not so for? tunate. In about half our cities, no weekend court is conducted to set bail. If you live in one of these cities, you may have trouble finding a judicial officer before Monday morning.

But no matter what the procedure, if

your client cannot establish acceptable conditions of release at his initial ap? pearance, he may appeal the bail deci? sion or challenge the conditions of release through habeas corpus.

You have now taken your client

through the first stages of his case, in?

cluding his pretrial release. You have

significantly helped him in all the pro? ceedings that will follow. Finally you can return home to what is left of your weekend.

On Monday, thinking back over the

spectacular job you did on the weekend, you may be tempted to handle the en? tire case yourself.

Resist.

Remember that effective criminal

practice requires experience. Bring in an

attorney with that experience.

1 Villi

Balloon

(Continued from page 4) Settlement also impedes vigorous en?

forcement. As a formal matter, con?

tempt is available to punish violations of a consent decree. But courts hesitate to use that power to enforce decrees that rest solely on consent, especially when enforcement is aimed at high public of? ficials, as In New York State Ass'n. for Retarded Children v. Carey, 631 F.2d 162 (2d Cir. 1980). The court was un?

willing to hold the governor in contempt when the legislature refused to provide funding for a committee established by the court to oversee implementation of the decree and it may have been led to that result because it was dealing with a consent decree. Courts do not see a mere bargain between the parties as a sufficient foundation for the exercise of their coercive powers.

Those who argue for settlement trivialize not just the remedial dimen? sions of a lawsuit, but also the purpose or function of adjudication. They see

adjudication solely as a mechanism for

resolving private disputes. They favor settlement because it appears to achieve

exactly the same purpose as judgment ?

peace between the parties ? but at con?

siderably less expense to society. In my view, however, the purpose of adjudica? tion is broader: It is justice, not peace.

Adjudication uses public resources. It does not employ arbiters chosen by the parties, but rather public officials who are chosen by a process in which the public participates. They are en? trusted with a power that has been defined and conferred by public law. The job of these officials is not to max? imize the ends of private parties, nor

simply to secure the peace, but to ex?

plicate and give force to the values em? bodied in authoritative texts such as the Constitution ? to interpret those values and to bring them into accord with reali? ty. This duty is not discharged when the

parties settle. Our courts are reactive institutions.

They do not search out interpretive oc?

casions, but wait for others to bring matters to their attention. They also rely for the most part on others to investi

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