Invoking the Fifth Amendment privilege is not just for scenes from Law & Order or Better Call Saul. These days commercial cases, especially those involving individual defendants, are commonly filled with claims that have criminal overtones–like fraud and trade secret theft. With an upswing in criminal prosecutions for financial fraud and trade secret theft, many commercial litigators are seeing more and more overlap between commercial causes of action and criminal prosecutions. When it comes to identifying Fifth Amendment issues for your client, commercial litigators can’t be asleep at the wheel. To help, here are the top ten things that every commercial litigator must know about the Fifth Amendment:
10. Your client can plead the Fifth when he has a reasonable belief that the response could be used against him in a criminal prosecution or lead to other evidence against him in a criminal prosecution. If a response won’t harm your client in a criminal case or investigation, then a Fifth Amendment invocation will not be permitted by the judge.
9. If your client elects to assert the Fifth, there is no magical way to do so. He can invoke the Fifth by saying something to this effect: “based on my rights under the Fifth Amendment of the U.S. Constitution, I decline to answer the question.”
8. If your client asserts the Fifth in a civil proceeding, the judge or the jury may make an inference of guilt or wrongdoing against your client (commonly referred to as the adverse inference).
7. If your client does not invoke the Fifth, but a nonparty that your client is closely aligned with invokes the Fifth, the judge or jury may apply an adverse inference against your client. In deciding whether to do so, the court will focus on: (1) the relationship between your client and the nonparty, (2) the degree of control your client has over the nonparty, (3) the compatibility of interests of your client and the nonparty in the outcome of the litigation, and (4) the role of the nonparty witness in the litigation.
6. If your client has already been indicted or if law enforcement is overtly investigating your client and you are worried about the adverse inference, you may be able to stay a civil proceeding until the parallel criminal investigation/prosecution is complete. If the judge doesn’t side with you on a stay, you should consider asking the court to issue a protective order prohibiting the use of your client’s responses in any criminal case.
5. The Fifth Amendment privilege doesn’t just apply to responses during trial or depositions, your client may also invoke the Fifth Amendment when answering interrogatories.
4. When responding to discovery requests, your client may invoke the Fifth Amendment if your client is an individual. This is because the act of producing a document not only authenticates the document, but also establishes its existence, the witness’s possession, and the belief that the document is responsive. If your client is a corporation, you will not be able to assert the Fifth in response to a discovery request.
3. Your client may invoke the Fifth in an answer to a complaint or petition.
2. If your client does not plead the Fifth when responding to questions to which he could have claimed the privilege, then he will be deemed to have waived his right to assert the Fifth with respect to all questions on the same topic. Said another way, the Fifth Amendment privilege must be raised in response to each specific inquiry or else it is waived.
1. Commercial litigators should consult with a criminal/white collar litigator on Fifth Amendment issues. After all, the potential stakes here aren’t just about economic damages; the stakes could include jail time, so sound legal advice from an attorney with expertise in criminal law is a must.