Practitioners should anticipate when a witness will invoke the privilege and how to deal with or use such invocation applying the principles of fairness and reliability.
In the June 30, 2022 edition of The Legal Intelligencer, Edward T. Kang wrote “Nonparty Witness Invoking the Fifth Amendment Privilege in a Civil Case.“
We were in the middle of a deposition examining a former employee of a specialty pharmacy accused of unlawfully dispensing large quantities of fentanyl based opioid pain medication when the employee refused to answer a question about her involvement in dispensing the pain medication to dozens of patients, at least one of whom died of a drug overdose. The basis for her refusal to answer was her invocation of the Fifth Amendment privilege. Over the next hour or so, she refused to answer dozens of questions based on the Fifth Amendment privilege, which, if she had answered, would have likely exposed both her and her former employer to potential criminal liability. The deposition took place in a whistleblower case that we were prosecuting against a drug maker and other related parties including the pharmacy-employer.
The drug maker generated national attention in the past few years as its founder, CEO, and several other people who worked at the company were criminally convicted of unlawfully marketing and selling the pain medication. While the drug maker and its affiliates were charged and convicted, pharmacies that dispensed the drug were not charged criminally. Our whistleblower case was brought by a relator who used to work for the drug maker.
After the deposition ended, we argued with defense counsel about the implication of the former employee’s invoking the Fifth Amendment privilege. We argued that her refusal to answer should result in an adverse inference against the pharmacy-employer. Counsel argued that the former employee’s relationship is too remote to the employer and that no adverse inference is warranted. Counsel also argued the employee improperly invoked the Fifth as some of the questions did not implicate her of any criminal exposure, and I think counsel was correct. Eventually, however, the parties settled the case and the question about adverse inference—i.e., whether drawing adverse inference against the employer is proper when a nonparty witness invokes the Fifth Amendment and, if so, to what extent such inference should be given—was not answered.
The Fifth Amendment to the U.S. Constitution provides that “no person shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has long held that a witness can invoke the protections of the Fifth Amendment in any proceeding where the testimony might incriminate the witness in a future criminal prosecution. See Lefkowitz v. Cunningham, 431 U.S. 801 (1977). That is, the Fifth Amendment can be invoked in a civil proceeding. This is because a witness may, rightly or wrongly, fear that his testimony may be used against him in a future criminal prosecution. The Fifth Amendment privilege against self-incrimination is applicable to the states via the Fourteenth Amendment. See City of Philadelphia v. Kenny, 28 Pa. Cmwlth. 531 (1977).
The complications that may arise out of invocation of the Fifth Amendment in civil litigation may be divided into two categories: the consequences of the privilege when properly invoked, and the effects when it is abused causing unfair prejudice to the opposing litigant. See Securities and Exchange Commission (SEC) v. Graystone Nash, 25 F.3d 187 (3d Cir. 1994) Because the privilege may be initially invoked and later waived at a time when an adverse party can no longer secure the benefits of discovery, there is the potential for exploitation by litigants. Unlike its application in criminal cases (where reliance on the Fifth Amendment may not be used against the defendant), reliance on the Fifth Amendment in civil cases may give rise to an adverse inference against the party claiming its benefits. At the same time, use of the Fifth Amendment can substantially prejudice an adverse party who is deprived of “a source of information that might conceivably be determinative in a search for the truth.” Therefore, the trial court must carefully balance the interests of the party claiming the protections afforded by the Fifth Amendment and the opposing party’s entitlement to equitable treatment. Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side.
The inference is similar to the well-established rule in civil proceedings that a party’s failure to testify can support an inference that whatever testimony he would have given would have been unfavorable to him. See Beers v. Muth, 395 Pa. 624 (1959). And, in civil proceedings, the adverse inference has been found to extend to nonparty witnesses. In Rad Services v. Aetna Casualty & Surety, 808 F.2d 271 (3d Cir. 1986), the U.S. Court of Appeals for the Third Circuit allowed the admission of adverse inferences against nonparty employees of the defendant chemical company. There, the witnesses had allegedly dumped toxic waste in violation of environmental laws. At trial, they claimed their Fifth Amendment privilege with respect to questions about their previous work with the defendant and their current employment status. The court held that the mere fact that a witness no longer works for a corporate party should not preclude evidence of his invocation of the Fifth Amendment.
Using a nonparty witness’ invocation of the Fifth Amendment privilege against a party often arises in cases where an employee, or former employee, is testifying due to the action of her employer. Some courts have required that an “identity of interests” must exist between the witness and the party to the lawsuit to draw an adverse inference, many circuits including the Third Circuit “have overwhelmingly found it constitutionally permissible to impute an adverse inference from a non-party to a party in a civil proceeding” without such “identity of interests.” See State Farm Mutual Automobile Insurance v. Abrams, (N.D. Ill. 2000) (collecting cases from the Second, Third, Fifth and Eighth circuits).
In this circuit, the admissibility of a nonparty’s invocation of the Fifth Amendment privilege against a party “should be considered ‘on a case-by-case basis’ and … the ‘overarching concern’ that should guide the admissibility inquiry ‘is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.’” See R.D. v. Shohola, (M.D. Pa. 2019) (citing Rad Services and other cases). The court went on, “On this score, courts have identified four nonexclusive factors for courts to consider: ‘the nature of the relevant relationships’; ‘the degree of control of the party over the nonparty witness’; ‘the compatibility of the interests of the party and nonparty’; and ‘the role of the nonparty witness in the litigation.’” Practitioners should note that whether the court will allow using a non-party’s invocation of the Fifth Amendment privilege against a party and to what extent involves a fact specific inquiry, which varies from case-to-case. The notes to the Pennsylvania standard jury instruction on adverse inference indicate “neither the Supreme Court of the United States nor the Pennsylvania appellate courts have addressed the consequences of a nonparty invoking the Fifth Amendment in a civil case.” It appears the courts are guided by the principles of fairness (to the parties) and reliability (of the nonparty witness).
The adverse inference has also been found to apply at the pleadings stage. In City of Philadelphia v. Kenny, the appellant’s answer responded to some averments in the complaint with an assertion of the privilege against self-incrimination under the Fifth Amendment. The issue before the court was whether the assertions of privilege left unresolved questions of fact which render judgment on the pleadings or summary judgment inappropriate. The court provided “In the absence of statutory prohibitions, a party’s voluntary testimony or statements made in pleadings or other papers filed in a judicial proceeding, may be used against him in a subsequent criminal prosecution.” Accordingly, “a defendant in a civil case must be entitled to assert that privilege in his pleadings, when allegations in the complaint call for answers which may tend to incriminate him.”
The Fifth Amendment privilege is not self-executing. The privilege can be waived by failing to invoke it in a timely manner and by disclosure of incriminating evidence. See Rogers v. United States, 340 U.S. 367, 373 (1951). Once a witness voluntarily reveals an incriminating fact, the privilege cannot be invoked to avoid disclosing the details of that fact unless the witness’ answer to the particular question posed would subject him or her to a “real danger” of further incrimination.
A party who properly asserts the Fifth Amendment privilege in a civil proceeding is not automatically barred from later deciding to waive his Fifth Amendment protections. But the party who switches positions will not be permitted to offer testimony as to matters for which the Fifth Amendment privilege had been invoked where this would provide a significant tactical advantage to this party. For example, ordinarily, a party who has avoided discovery by asserting the Fifth Amendment privilege will not be permitted on the eve of trial to waive her Fifth Amendment protections for the purpose of testifying at trial. Also, at the request of a party, a court may set a time, based on a need of the parties to complete discovery, after which the party who has invoked the Fifth Amendment privilege will be barred from offering at trial his testimony on matters for which the Fifth Amendment was invoked to prevent discovery. See Haas v. Bowman, 62 Pa. D. & C. 4th at 15 (Com. Pl. 2003).
I was not surprised when the witness invoked the Fifth Amendment privilege in the whistleblower case. All of the parties anticipated that the witness would likely invoke the privilege going into the deposition. Although there could be a situation when a witness would surprise everyone by invoking the privilege, these situations are rare. Practitioners should anticipate when a witness will invoke the privilege and how to deal with or use such invocation applying the principles of fairness and reliability.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at firstname.lastname@example.org.
Reprinted with permission from the June 30, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.