Does a party in a civil dispute have the right to raise the Fifth Amendment Privilege against self-incrimination? Yes. De Lisi v. Bankers Ins. Co., 436 So.2d 1099 (Fla. 4th DCA 1983). Does the privilege extend to production of documents or just testimony? The privilege only extends to the production of documents unless the production itself is testimonial in nature. Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980) (“It then held that while the Fifth Amendment privilege against self-incrimination affords no protection to the contents of previously prepared documents, it does protect a person from producing documents under subpoena where the compelled production would amount to a forced testimonial communication which would be incriminating.”); see also, Fisher v. United States, 96 S. Ct. 1569 (1976). Whether the act of production is testimonial or not can be a complicated analysis. Essentially, if the government were to already know of the existence of documents and the location of such documents then production is not testimonial because the act of producing will not authenticate such documents or otherwise verify the existence of incriminating information. U.S. v. Lawrence, 2014 WL 2153944 (S.D. Fla. April 29, 2014); In re Grand Jury Proceedings, Subpoenas for Documents, 41 F.3d 377 (8th Cir. 1994).
CAN THE PLAINTIFF, IN A CIVIL ACTION, ASSERT HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION?
Yes, but the invocation of the privilege has disastrous consequences for the Plaintiff. The analysis is simple when a Plaintiff, in a civil action, invokes his Fifth Amendment privilege against self-incrimination. The Plaintiff’s action will be dismissed as a sanction for failing to participate in the discovery process. City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978).
CAN THE DEFENDANT, IN A CIVIL ACTION, ASSERT HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION?
Sometimes, but not by blanket assertion of the privilege. Unlike a criminal proceeding, the Defendant in a civil action does not always have the right to invoke his Fifth Amendment Privilege against self-incrimination. Delisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982). The Fifth Amendment Privilege is so fundamental that if the self-incriminating nature of the question is not clear from the face of the question a hearing is necessary to determine whether the invocation of the privilege is appropriate. Belniak v. McWilliams, 44 So.3d 1282 (Fla. 2d DCA 2010). Of course, the subjective belief of the party seeking protection from discovery that testimony or production of documents will incriminate him is not sufficient to prevent the testimony or production. Hoffman v. United States, 341 U.S. 479, 486 (1951). (“The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified…”) (emphasis added). If a Defendant refuses to answer questions or produce documents on the basis that testimony or production may incriminate him, the Court must conduct a hearing to determine whether the privilege is properly invoked. Deleo v. Wachovia Bank, N.A., 946 So.2d 626 (Fla. 2d DCA 2007). As a practice point, the Defendant should appear at such hearing and bring all documents it wishes to protect from disclosure. The Defendant should further request an in camera inspection, if it appears the Court is inclined to deny the request for a protective order. During the in camera inspection, the Defendant should be prepared to discuss the potentially incriminating testimony or potentially incriminating documents. If the Defendant declines to request an in camera inspection, the Defendant may waive the right to an in camera inspection. In Deleo, the Second District Court of Appeal reversed and remanded for an in camera inspection when the Trial Judge refused to grant an in camera inspection upon request by the Defendant.
The Deleo case is a perfect example of how a Defendant can frustrate and delay the process by asserting the Fifth Amendment privilege. It is also reinforces that the privilege is not absolute in civil cases. In Deleo, a judgment was obtained by Wachovia and Wachovia conducted a deposition in aid of execution. At the deposition, Deleo asserted his Fifth Amendment privilege against self-incrimination and refused to respond to 178 separate questions. Later at a hearing on a motion to compel and/or motion for protective order, Deleo sought in camera review of each of the 178 questions. The Trial Judge did not individually review the 178 separate invocations of privilege and the Second District Court of Appeal reversed with instructions to individually review in camera.
If you are a Plaintiff and the Defendant asserts his Fifth Amendment privilege against self-incrimination you need to understand that the invocation of the privilege is going to delay the prosecution of your case. The best strategy is to understand the process and let the Defendant’s strategy play out. File a motion to compel, notice it as an evidentiary hearing and subpoena the Defendant to be present at the hearing. Further request the Defendant bring with him the documents for which the privilege is invoked, if it was invoked in regards to production of documents. You can also inform the Judge that an in camera inspection is the process of choice to determine whether the privilege is properly invoked. Essentially, the Defendant then has to specifically explain why certain answers or documents may incriminate him. Conversely, you could also take the position that it is Defendant’s responsibility to request the in camera inspection and argue that such right was waived by failing to make the request.
If you are a Defendant and you wish to assert your Fifth Amendment privilege against self-incrimination you should be cautious in asserting the privilege. The assertion of such privilege requires you and your attorney to review the questions asked or the documents requested to determine whether a good faith basis for the privilege can be asserted. You should then file a motion for protective order and personally appear at the hearing and request to be questioned in camera on the specific questions/documents to which you invoke the privilege. If the privilege is asserted on numerous occasions, like it was in Deleo, the Court is not going to be happy if it wastes significant time reviewing individual responses when there is no realistic threat of incrimination. Loosely invoking the privilege by a blanket objection is not a good strategy. Remember, the invoking of this privilege will cause both Plaintiff and Defendant significant attorney’s fees in researching complicated legal issues. Improperly invoking this privilege could result in a large cost (including attorney’s fee) award pursuant to Florida Rule of Civil Procedure 1.380(a)(4). For many reasons, the Defendant should assert the privilege sparingly, only in cases in which the discovery will likely lead to criminal prosecution.