Commercial Litigation and Arbitration

Fifth Amendment Privilege in Civil Cases — Party Barred from Offering Any Evidence on Subjects Shielded from Discovery by Its Own Assertion of Fifth

Barrette Outdoor Living, Inc. v. Mich. Resin. Representatives, 2015 U.S. Dist. LEXIS 8936 (E.D. Mich. Jan. 27, 2015):

B.  Plaintiff's Motion in Limine to Preclude Defendant John Lemanski from Offering Any Evidence and/or Testimony on Subjects He Shielded from Discovery Through His Assertion of the Fifth Amendment [#218]

Plaintiff seeks to exclude evidence on subjects that [Defendant Lemanski] shielded from discovery through the assertion of his Fifth Amendment rights. These subjects include the cause of the fire that destroyed his vacation home, insurance claims related to his home and his car, his 2011 tax returns, and portions of his deposition testimony in which he was questioned about defrauding [Plaintiff] Barrette.

Plaintiff contends that this evidence should be excluded as a matter of fairness as well as under principles of reciprocity. Traficant v. C.I.R. , 884 F.2d 258, 265 (6th Cir. 1989). The Court agrees. While asserting one's right against self-incrimination is a constitutional one, a party may not use the Fifth Amendment in order to take advantage of the litigation process. See United States v. Sixty Thousand Dollars in U.S. Currency , 763 F.Supp. 909, 914 (E.D. Mich. 1991) ("The court would not tolerate nor indulge a practice whereby a defendant by asserting the privilege against self-incrimination during pre-trial examination and then voluntarily waiving the privilege at the main trial surprised or prejudiced the opposing party."). "Such limits are properly within the scope of cases holding that a party to [*13]  civil litigation or other non-criminal proceedings may encounter costs imposed in exchange for the assertion of the Fifth Amendment privilege as long as they are not so high as to force abandonment of the privilege." Id. (citing Spevack v. Klein, 385 U.S. 511, 515 (1967); Baxter v. Palmigiano , 425 U.S. 308 (1976)).

Courts have emphasized, though, the importance of specificity at which evidence should be limited when a party attempts to limit evidence or testimony based on the opposing party's assertion of their Fifth Amendment rights. See Dunkin' Donuts v. Taseki , 47 F.Supp.2d 867, 873 (E.D. Mich. 1999) (" Traficant was careful to note that 'when the issue is whether a court may impose broad limits on the admissibility of evidence, the cases permit only limits directly related to the scope of the asserted privilege" (emphasis in original)).

For this reason, the Court holds that evidence and testimony be excluded at trial only as it relates to the tailored subjects mentioned herein, and only on those areas of which Defendant Lemanski asserted his Fifth Amendment rights per Traficant .

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