1. Everybody’s Taking the Fifth These Days … Can My Client (in a civil case) Do So as Well?

2. FIFTH AMENDMENT
“No person shall be compelled in any criminal case to be a witness against himself.”

3. HISTORY OF FIFTH AMENDMENT RIGHT
The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission – British courts of equity that operated from These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient “proof” came from browbeating confessions out of the accused.

4. SCOPE OF PRIVILEGE
“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, (1951)
A witness also may assert his 5th Amendment privilege any time that “a responsive answer to the question or an explanation or why it cannot be answered might be dangerous because injurious disclosure could result.”
“[t]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” Ohio v. Reiner, 532 U.S. 17, 21 (2001)

5. ASSERTING THE FIFTH
A blanket assertion of the privilege is insufficient to relieve a party of the duty to respond to questions put to him. “Even if the danger of self-incrimination is great, the party’s remedy is not to voice a blanket refusal to produce his records or testify. Instead, he must present himself with his records for questioning, and as to each question and each record elect to raise or not to raise the defense.” Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660 (5th Cir. 1981).

6. WAIVER OF PRIVILEGE
Where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details.
Rogers v. U.S, 340 U.S. 367 (1951)

7. WHO CAN ASSERT
The right against self-incrimination is a personal privilege that does not extend to a corporation or its records. Bellis v. United States, 417 U.S. 85, (1974). Further, a corporate record custodian may not resist a subpoena on the grounds that the contents of the documents would be personally incriminating.
There remains an open question where the “custodian” is also the sole employee and officer of the corporation. Braswell v. United States, 487 U.S. 99, 110 (1988).

8. FIFTH AMENDMENT IN THE CONTEXT OF
CIVIL LITIGATION
The fact that Fifth Amendment privilege against self-incrimination is raised in a civil proceeding rather than criminal prosecution does not deprive party of its protection.
Under both the federal rules of discovery and the Constitution, civil litigants are under no obligation to disclose information that they reasonably believe might be used against them as an accused in a criminal prosecution.
If a party reasonably apprehends risk of self-incrimination, he may claim Fifth Amendment privilege though no criminal charges are pending against him and even if the risk of prosecution is remote.

9. PROBLEMS WITH FIFTH AMENDMENT IN CIVIL CASES
Doesn’t prevent adversaries from finding the same evidence elsewhere. (The right against self-incrimination is a personal privilege that does not extend to a corporation or its records).
Although in a criminal proceeding, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, in civil cases, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. Baxter v. Palmigiano, 425 U.S. 308 (1976)

10. ADVERSE INFERENCE
Even where the witness may be the sole source of information necessary to prove a case, the Court cannot force a witness to testify.
But in a civil case, federal courts may force a witness to invoke the privilege on the witness stand. And courts may allow the jury to draw an adverse inference from a witness invoking the Fifth Amendment. Baxter v. Palmigiano, 425 U.S. 308
By contrast, in most state courts, a witness may invoke the 5th Amendment rights in a civil proceeding, and the jury may not make any inference based on that invocation that the witness is guilty of some wrongdoing. Most state courts prohibit the jury from hearing the invocation at all.
[But see Miles v. Louisiana Landscapte Specialty, Inc., 697 So. 2d. 348 (La. App. 5 Cir. 1997; and Smith v. Lynn, 697 So. 2d 348 (La. App. 2 Cir. 1999)]

11. Adverse inference where party to the suit takes the Fifth
District courts have wide discretion to admit a party’s invocation of the Fifth Amendment into evidence or to exclude the invocation as unfairly prejudicial under Fed. R. Evid Farace v. Independent Fire Ins. Co., 699 F2d 204, 210 (5th Cir. 1983).
The invocation of the Fifth Amendment is not without consequences. The trier of fact and the opposing party are handicapped by the denial of possibly relevant information. To compensate for this handicap, courts have imposed a cost on the claimant to facilitate the proceeding or to “level the playing field’ for the party opposing the claimant.

12. TEST FOR DETERMINING IF ADVERSE INFERENCE IS PROPER
WHETHER THE VALUE OF PRESENTING THE EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREDJUDICE ON THE PARTY ASSERTING THE PRIVILEGE.
THE INFERENCE MUST BE CORROBORATED BY INDEPENDENT EVIDENCE
THE NEED FOR THE EVIDENCE MUST BE SUBSTANTIAL WITH NO LESS BURDENSOME WAY TO OBTAIN IT
ANY INFERENCE IS LIMITED TO THE SCOPE OF THE SPECIFIC QUESTIONS WHERE THE WITNESS INVOKES THE PRIVILEGE.

13. Non-Party Witnesses
A non-party's silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree than it does as to parties to a lawsuit.
RAD Servs., Inc. v. Aetna Casualty & Sur. Co., 808 F.2d 271, 275 (3d Cir.1986) (citing Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521 (8th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984)).
Because there is no constitutional bar to the admission of this evidence, it is admissible if it is relevant and not otherwise prohibited by the rules. Fed.R.Evid. 402.
F.D.I.C. v. Fid. & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995)

14. Economy Auto Salvage v. Allstate Insurance Company, 499 So. 2d 963 (La
Economy Auto Salvage v. Allstate Insurance Company, 499 So.2d 963 (La. App. 3 Cir. 1986)
Court interpreted the Supreme Court’s finding in Baxter regarding adverse inference to mean
That in a civil case, a negative inference may be drawn against a party to the action who asserts his Fifth Amendment privileges. The Court found that no negative inference should be reached by a court against either party when a disinterested, non party witness refuses to testify on Fifth Amendment grounds.
“It is illogical to conclude that a negative inference against Economy should be drawn because a nonparty witness called by Allstate pleads the Fifth Amendment privilege.

15. LiBuitti v. United States (seminal case on issue of adverse inference when non-party witness invokes the 5th)
Ultimate Concern of the Court was “whether the adverse inference is trustworthy under all of the circumstances.”
FACTORS CONSIDERED:
“the nature of the relevant relationships” between the witness and the parties
“the degree of control of the party over the non-party witness”
“the compatibility of the interests of the party and non-party witness in the outcome of the litigation”
“the role of the non-party witness in the litigation”

16. STAY OF CIVIL PROCEEDING
the extent to which the issues in the criminal case overlap with those presented in the civil case;
the status of the criminal case, including whether the defendants have been indicted;
the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay;
the private interests of and burden on the defendants;
the interests of the courts; and
the public interest

17. Wehling v. Columbia Broadcasting System
The Wehling was the owner of trade schools in Texas and filed a libel action against CBS alleging they had been defamed by a television new story which made allegations against the Wehlings of student loan fraud. Prior to the broadcast, Wehling had been the subject of a grand jury investigating federally insured student loan programs.
When CBS sought discovery from Wehling concerning the operation of the schools, he invoked his 5th Amendment privilege against self-incrimination. When Wehling continued to claim the privilege, despite the district court’s order that he answer the questions posed to him that the deposition, the district court dismissed his case with prejudice.
The Fifth Circuit held that the district court erred in concluding that Wehling’s assertion of his self-incrimination privilege during pretrial discovery automatically required the dismissal of his action. The district court could not force
Wehling to choose between his silence and his lawsuit.
The Court recognized, however, that CBS should not be required to defend against a party who refuses to reveal the very information which might absolve the defendant of all liability. The Court noted that a less drastic remedy than dismissal, such a staying discovery (or granting Wehling’s motion for protective order), would have protected Wehling’s constitutional right while preventing unfairness to the defendant.

18. ETHICAL CONSIDERATIONS
Rule 4.3 Dealing with unrepresented person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.