M E M 0 RAN DUM ON:

WHAT DO YOU DOWHEN THE DEPONENT

TAKES THE FIFTH?

BYAND

BRETT D.LAWRENCE

You are deposing the presidentof an investment firm. Your clientis suing the firm on a constructivetrust and accounting cause of ac-tion. Your first two backgroundquestions, concerning the depo-nent's name and age, he politelyanswers. You next ask him whohe works for. The president refusesto answer on the grounds that theanswer may tend to incriminatehim. Undaunted, you ask him wherehis firm is located. Again, he standson the Fifth Amendment. You getthe same response to your questionconcerning how long he has beenassociated with this investmentfirm. How do you deal with thisrecalcitrant deponent?

This article reviews the generalrules and principles surroundingthe Fifth Amendment privilegeagainst self-incrimination, alongwith providing guidelines for pro-ceeding with discovery when theFifth Amendment is asserted at adeposition.

Amendment VThe Fifth Amendment of the UnitedStates Constitution provides that"No person ... shall be compelledin any criminal case to be a witnessagainst himself .... " The IllinoisConstitution contains substantiallythe same language.

It is well established that theprivilege against self-incriminationmay be asserted by any witnessin any civil proceeding or pre-trialexamination where there is a rea-

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HEINRICHR. LA SUSA

sonable apprehension of criminalprosecution. McCarthy v. Arndstein,266 U.S. 34 (1924).

The mere assertion of the FifthAmendment privilege does not auto-matically insulate a party from theusual duty to comply with discovery.The Supreme Court in Hoffman v.United States, 341 U.S. 479 (1951),dictated that a witness can properlyinvoke the Fifth Amendment protec-tion when he or she has reasonablecause to apprehend danger of self-incrimination from a direct answer.However, the Court in Hoffmanrecognized the long-standing princi-ple that the Fifth Amendment privi-lege not only extends to answersthat would themselves support aconviction, but also embraces an-swers that furnish a link in thechain of guilt that alone may notindicate any crime. Therefore, aparty who reasonably apprehendsa risk of self-incrimination mayclaim the privilege even thoughno criminal charges are pendingagainst him or where the risk ofprosecution is remote. IO-Dix Build-ing Corp. v. McDaniel, 134ll1.App.3d664,480N.E.2d 1212 (lst Dist. 1985).

The court must determine if thedeponent's fear of self-incriminationis well-founded. Mason u. UnitedStates, 244 U.S. 362 (1917). Indetermining reasonable fear of self-incrimination, a court must notlook at the likelihood of prosecu-tion, but the possibility of prosecu-tion. Hoffman u. United States, 341U.S. 479 (1951); In Re Folding

Carton Antitrust Litigation, 609 F.2d867 (7th Cir. 1979); People v. Burk-ert, 7 Ill. 2d 506, 131 N.E.2d 495(1955). Courts do not recognizefanciful and imaginary fears of self-incrimination as constituting a pos-sibility of prosecution. Mason, su-pra; People u. Schultz, 380 Ill. 539,44 N.E.2d 601 (1942).

Who Can Use The ShieldOf The Fifth Amendment?The framers of the constitutionalguarantee against compulsory self-incrimination were interested pri-marily in protecting individual civilliberties. The framers did not intendto have the privilege available toprotect the economic and otherinterests of organizations. UnitedStates v. White, 322 U.S. 694 (1944).Yet, numerous cases have con-cluded that the privilege againstself-incrimination extends not onlyto oral testimony, but also to per-sonal documents and business re-cords of the sole proprietor orpractitioner. United States v. Doe,465 U.S. 605 (1984); Boyd v. UnitedStates, 116 U.S. 616 (1886); In reZisook, 88 I11.2d 321, 430 N.E.2d1037 (1982).

Since the privilege against self-incrimination is purely personal,courts have removed the protectiveshield of the Fifth Amendment fromindividuals who act as representa-tives of collective business entities.Collective business entiti~s haveno privilege against self-incrimina-tion with respect to the content of

a business document. Bellis u.United States, 417 U.S. 85 (1974).Similarly, representatives of coJlec-tive business entities have no FifthAmendment protection with respectto producing business records, evenif these records might incriminatethe representative personally. Id.This maxim has been applied tocorporations, partnerships, unincor-porated associations and unions.Additionally, a personal record canlose the protection of the FifthAmendment if it contains commin-gled notations of a collective busi-ness entity. United States u.Waltman, 394 F.Supp. 1393 (W.O.Pa. 1975).

~en The Deponent LosesFifth Amendment ProtectionWhen the possibility of criminalprosecution is nonexistent, the de-ponent's right to assert the privilegedisappears. The elimination of thepossibility of criminal prosecutionoccurs in a variety of ways: thestatute of limitations expires, theprosecution grants the deponentimmunity, the deponent waives hisFifth Amendment privilege.

The privilege can no longer beasserted after the prosecution fora crime is barred by lapse of time.The interrogating party has the bur-den of proving no prosecution hasbeen commenced within the periodof time during which prosecutionwas permissible. O'Neil v. O'Neil,299 F. 914 (1924). The decisionto prosecute is entirely within theprosecutor's discretion. Conse-quently, a judge's prediction as tothe likelihood of whether a prosecu-tor will file an indictment is notdispositive in ascertaining the per-missible scope of a claimed FifthAmendment privilege. Furthermore,the Fifth Amendment protection af-forded the deponent wiJl not beeviscerated merely on counsel'sassurances that he does not happento know of any current investigation.In Re Corrugated Container AntitrustLitigation, 661 F.2d 1145 (7th Cir.1981).

The privilege against self-incrimi-

nation can be supplanted by agrant of immunity. The two typesof immunity are transactional immu-nity and use immunity. Under trans-actional immunity, the witness isfully immunized from prosecutionfor any offenses to which his com-pelled testimony may relate. Useimmunity protects a witness's com-pelled testimony or leads derivedtherefrom from being used againsthim. Kastigar u. United States, 406u.s. 441 (1972); People ex reI.Cruz u. Fitzgerald, 66 Il1.2d 546,363 N.E.2d 835 (1977).

However, use immunity givento a witness in one proceedingaffords no protection against self-incriminating information disclosedby the witness in other proceedingsprior to or subsequent to the immu-nized proceeding. In Re Corrugated

Perhaps the most fertile

ground to remove the

shield of Fifth Amend-

ment protection from

a deponent ex~~ in

the area of waiver.

Container Antitrust Litigation, supra,at 1154. Therefore, repeating im-munized testimony in an independ-ent proceeding may itself be viewedas incriminating; i.e., repeated oracknowledged testimony could con-stitute an independent source ofevidence, aJlowing a deponent toraise his Fifth Amendment privilege.Id. As the interrogator, do not besurprised if the deponent, evenwith prior assurances of immunity,reassertshis Fifth Amendment privi-lege.

Perhaps the most fertile groundto remove the shield of Fifth Amend-ment protection from a deponentexists in the area of waiver. Thegeneral rule is that a deponentmay choose when to stop giving

testimony and to assert his FifthAmendment privilege. However, ifa deponent voluntarily disclosesany facts regarding a criminal trans-action or connection, he is notpermitted to stop, but must go on,because disclosure of a fact waivesthe privilege as to details. Brownv. Walker, 161 U.S. 591 (1896);Rogers u. United States, 340 U.S.367 (1951). The rationale is that ifa deponent were permitted to selectthe stopping point after disclosingfacts, and then assert his FifthAmendment privilege as to the de-tails surrounding the facts, a greatdistortion of the facts would result.Rogers u. United States, 340 U.S.367 (1951).

As early as 1924, the U. S.Supreme Court held that the FifthAmendment privilege is not waivedby the filing of nonincriminatingpleadings in a civil action. Arndsteinu. McCarthy, 254 U.S. 71 (1920).Following Arndstein, cases haveheld that the Fifth Amendment privi-lege is not waived by the filing ofa complaint followed by an answerto a counterclaim, Backos o. UnitedStates, 82 F.R.D. 743 (E.D. Mich.1979);or by responding to interroga-tories, Duffy v. Currier, 291 F.Supp.810 (D. Minn. 1968); or by pleadingan affirmative defense, United Statesv. 47 Bottles, 26 F.R.D. 4 (D.N.J.1960); IO-Dix Building Corp. v.

McDaniel, 134 Ill.App.3d 664, 480N.E.2d 1212 (1985). However, onecourt has determined that a depo-nent waived his Fifth Amendmentprivilege when he submitted af-firmations and affidavits opposinga motion for summary judgmentearlier in the proceedings. CamelotGroup Ltd. v. W A. Krueger Co.,486 F.Supp. 1221, 1230 (S.D.NY1980). Whether a witness haswaived the privilege wiJl be deter-mined by the trial court when aresponse by a party amounts toan admission of guilt or furnishesclear proof of crime.

How To Deal With TheFifth Amendment At A DepositionThe federal and Illinois Rules of

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Civil Procedure specifically give aparty a right to question a witnessby oral deposition. As a generalrule, the deponent must show upat the deposition and assert hisprivilege to each question askedof him. A deponent's refusal toappear at a deposition becausehe believes all possible questionswill be protected by the FifthAmendment is not acceptable. InRe Zisook, 88 Il1.2d 321, 430N.E.2d 1037 (1982). Similarly, ablanket refusal to answer any andall questions at a deposition isnot acceptable. Camelot Group Ltd.v. W A. Krueger Co., 486 F.Supp.1221 (S.D.N.Y. 1980). Furthermore,the deponent cannot have the courtreview all of the interrogator's ques-tions in advance of his refusal toanswer. National Life Insurance Co.v. Hartford Association and Indem-nity Co., 615 F.2d 595 (3rd Cir.1980); Guy v. Abdulla, 58 F.R.D. 1(N.D. Ohio 1973).

As the interrogator, it is yourjob to clarify the breadth and scopeof the deponent's position on hisFifth Amendment privilege. Sincea blanket refusal to answer is unac-ceptable and provides no basis forthe reviewing court to determine

the propriety of the claimed privi-lege, you should not stipulate toa termination of the deposition orto a blanket refusal not to attend.Instead, you should require thedeponent to assert the privilegeon each question. This way, thecourt has a record on which todecide whether the privilege hasbeen properly asserted to eachspecific question. Gatoil Inc. v.Forest Hill State Bank, 104 F.R.D.580 (D. Md. 1985).

The proper vehicle for the courtto review the record is a motionto compel discovery. Fed.R.Civ.P.37; Illinois Supreme Court Rule219. Some courts prefer that thedeponent specify in writing withrespect to each separate questionto which he objects, the groundsfor objection and,wherever possiblewithout self-incrimination, to whatdegree a responsive answer mighthave a tendency to incriminatehim. Gatoil Inc., supra. You maysuggest to the court that requiringthe deponent to respond in writingto each question is appropriateand will aid the court in its determi-nation of whether the privilege hasbeen properly asserted.

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36 A P R 989L

gator to ascertain whether the wit-ness has received a grant of immu-nity or even informal assurancesthat federal or state authorities willnot prosecute. The following ques-tions may be used to elicit thisinformation:

Q: Are you or have you beenunder investigation by any federalor state authorities?

Q: Are you being or have youbeen called to testify in any federalor state grand jury proceedings?

Q: Are you receiving or haveyou received any formal or informalassurances of immunity from anyfederal or state authorities?

Follow up these questions withthe standard who, when, whereand why questions. These simplebut fundamental questions can laythe groundwork for a motion tocompel answers and possibly anaward of expenses if you show theasserted privilege is not substan-tiallyjustified. Fed.R.Civ.P.37(a) (4);Illinois Supreme Court Rule 219(a).

Regarding statute-of-limitationsconcerns, review the applicablestatute and time frame in questionto determine whether the statutehas run at the time of thedeposition.However, for some crimes the stat-ute of limitations may not haveexpired at the time of the deposition(i.e., conspiracy), thereby givingthe deponent legitimate FifthAmendment protection. The factremains, probing this area mayprove helpful. For example, youmay wish to ask the followingquestions:

Q: Do you know the plaintiff?Q: How do you know the plain-

tiff?Q: When did you first meet the

plaintiff?Although simplistic, these gen-

eral questions may provide a suit-able time frame for you and thecourt to determine if the appropriatestatute of limitations has expired.Moreover, the answers to thesequestions may constitute a waiverof the deponent's privilege against

self-incrimination.Since waiver is the most fertile

ground for piercing the shield ofthe Fifth Amendment, you mustattempt to get the deponent toreveal at least some informationor facts. The axiom is that oncethe deponent reveals a fact, hewaives the privilege against self-incrimination as to the details sur-rounding the fact. Your lance inpiercing the shield of the FifthAmendment is the innocuous ques-tion. The innocuous question mustbe specific enough so that thecourt can determine whether thedeponent's response could resultin possible prosecution. The pur-pose of using innocuous questionsis twofold. First, specific innocuousquestions will bolster your motionto compel. Frequently, a judge willagreethat the question is so innocu-ous that the Fifth Amendment privi-lege cannot attach to the question.Using this method of questioning,will successfully narrow the depo-nent's liberal use of the FifthAmendment privilege. Second, thedeponent may be lulled into a falsesense of security by thinking thatthe innocuous questions and hisresponses are harmless. By obtain-ing factual responses, you are enti-tled to probe the details surroundingthe responses.

Should the deponent refuse toanswer even the most innocuousquestions, simply ask the deponentwhat areas is willing to discuss. Ifthe deponent refuses to respond,his assertion of the Fifth Amend-ment privilege may appear unrea-sonable and unjustified. Any infor-mation he does give you is aspringboard to the areas that maybe probed for details.

Using The Fifth AmendmentAs Shield And SwordCourts overwhelmingly frown on aplaintiff in a civil action invokingthe Fifth Amendment privilegeagainst self-incrimination whilemaintaining a lawsuit. Although itis true that plaintiffs cannot beforced to involuntarily incriminate

INTERROGA TOR'S CHECKLIST• Who is taking the Fifth Amendment? The privilege is.,purelypersonal; corporate officers in their representative capacity cannotassert it.

• How is the privilege being asserted? Blanket refusals are notacceptable. Do not terminate the deposition - keep going.

• Determine the breadth and scope of the deponent's position onhis Fifth Amendment privilege. Only answers that have a possibilityof being used as a basis for prosecution are privileged.

• Determine if the possibility of prosecution is barred by the statuteof limitations or a grant of immunity.

• Determine if the deponent waived the privilege by revealingincriminating facts without raising the privilege. The deponent mustgive details.

• Determine which areas the deponent is willing to talk about. Hemay waive his privilege in some areas.

• Ask specific innocuous questions to lay the groundwork for amotion to compel "answers.

themselves, they should not bepermitted to use the Fifth Amend-ment privilege as both a shield ofprotection and a sword of attack.

Where plaintiffs force defendantsinto court, it would be unjust toallow them to prosecute their causeand at the same time refuse toanswer defendants' questions. Gal-ante v. Steel City National Bankof Chicago, 66 IlI.App.3d 476, 384N.E. 2d 57 (1978). Your ultimaterelief in such a situation may bea motion to dismiss with prejudice.This would apply with equal forceto a defendant's counterclaim.

ConclusionArmed with an understanding ofthe Fifth Amendment, you can useeffective questioning to forestall arecalcitrant deponent's liberal useof his Fifth Amendment privilege.Byforging aheadwith thedepositionusing specific questions, you mayreveal information exposing eitherthe deponent's immunity or thedeponent's unjustified assertion ofthe Fifth Amendment due to the

running of the statute of limitations.By using specific innocuous ques-tions, you may lead the deponentinto the fertile area of waiver. Evenif the witness refuses to answerthe innocuous questions, the depo-nent's refusal will lay the ground-work for a motion to compel an-swers.

Brett D. Heinrich, a Special IllinoisAssistant Attorney General in theTrials Division, is the editor-in-chiefof the Young Lawyers Section ofthe CBA Record. Lawrence R. LaSusa, an Illinois Assistant AttorneyGeneral in the General Law Divi-sion, is the executive editor of theYoungLawyers Section of the CBARecord.

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