A civil litigator's guide to the privilege against self-incrimination in Florida's state and federal courts.

• Author: Rosen, Marisa E.
• Position: Cover story

When Hal Litchford reviewed decisional trends concerning the privilege against compelled self-incrimination in civil litigation for The Florida Bar Journal in 1983, (1) the invocation of that privilege was an infrequent concern to many civil practitioners. On the rare occasion the privilege was asserted in civil proceedings, the effect depended on which party asserted it. At the time, the Florida Supreme Court had a precedent of automatic dismissal of the plaintiff's claims when the plaintiff asserted the privilege. (2) Such consequences were often prefaced with the tenet that a litigant was not entitled to both silence and a lawsuit. (3)

In 1983, the constitutionality of the various consequences of asserting the privilege had been recently examined by the Fifth Circuit Court of Appeals in the landmark decision Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979). In Wehling, the predecessor court to the 11th Circuit Court of Appeals disapproved of the practice of automatic dismissal of complaints or claims upon the plaintiff's exercise of the privilege, and directed district courts to balance the competing interests of the litigants to determine a "less burdensome" remedy to reduce the prejudice caused by the privilege. (4)

Thirty years later, the assertion of the privilege against self-incrimination in a civil proceeding has lost its novelty, owing largely to a series of highly publicized lawsuits resulting from infamous corporate scandals. (5) Yet, the repercussions of asserting one's right to silence--legally and culturally--have not diminished greatly. It remains true that invoking the privilege against self-incrimination, or "taking the Fifth," may subject parties to adverse consequences in a civil action. The appropriate remedies (or sanctions, depending on your party affiliation) for a witness' invocation of the privilege are influenced, but no longer determined, by whether the witness invoking the privilege is a plaintiff, defendant, or nonparty.

While the basic rationale guiding the courts' handling of the invocation of the privilege has not changed significantly in the interim, the ramifications of the privilege have continued to emerge and, among jurisdictions, diverge. This article focuses on the current standards and practices with respect to the invocation of the privilege against compelled self-incrimination in civil proceedings in Florida's state and federal courts, calling attention to where the standards and practices differ and which issues remain unsettled. (6)

Basic Overview of the Privilege Against Self-incrimination

The Fifth Amendment to the U.S. Constitution and Fla. Const. art. I, [section]9 prohibit a natural person (7) from being compelled in any criminal case to be a witness against himself or herself. (8) These constitutional mandates protect one from compelled self-incrimination in "any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory," (9) whether the inculpation arises through oral or written testimony or the production of documents in one's possession. (10) However, the privilege is not absolute.

The privilege against self-incrimination may be properly invoked to justify withholding evidence where the evidence meets three criteria: It is compelled, (11) testimonial, (12) and incriminating. (13) The witness has the obligation to assert the privilege contemporaneously to the questioning. (14) One may not assert the privilege unless the testimony solicited is realistically self-incriminating, meaning there must be reasonable grounds to believe that the testimony would furnish a link in the chain of evidence needed to prove a crime. (15) It does not shield responses that may lead to civil liability or may be embarrassing. (16)

A blanket assertion of the privilege against self-incrimination is insufficient to secure the protections of the privilege. (17) Rather, the witness must raise a specific objection to a particular question or document. (18) Though it is the witness' burden to claim the privilege, the judge ultimately decides whether the privilege is applicable. (19) In doing so, the court must assess the reasonableness of the privilege in relation to each question. (20) The failure of the witness to raise particularized objections, or the judge to evaluate the validity of the privilege, to each objectionable inquiry has been a common basis for reversal by Florida's appellate courts. (21)

Since the U.S. Supreme Court mandated in 1968 that the assertion of the Fifth Amendment privilege cannot be "costly" or "unduly burdensome," certain remedies have been recognized as improper punishment for the exercise of one's constitutional rights. (22) For example, the automatic entry of an adverse judgment due solely to the assertion of the privilege has been held impermissibly burdensome and, thus, unconstitutional under Florida and federal law. (23) The discretion of courts and legislative bodies to fashion a suitable remedy is constrained by the constitutional guarantees protecting individuals participating in a civil proceeding.

Invocation by the Plaintiff

The privilege against self-incrimination continues to have the most significant ramifications in civil litigation when it is invoked by the party seeking affirmative relief, typically the plaintiff. Yet, the remedies awarded to alleviate the prejudice caused by a plaintiff's assertion of the privilege are no longer invariably harsher than those awarded for a defendant's assertion of the privilege.

When the plaintiff invoked the privilege in civil litigation 30 years ago, the defendant's entitlement to a dismissal of the plaintiff's claim was "automatic" in Florida and nearly automatic in other jurisdictions. (24) Florida courts have since retreated from a practice of automatic dismissal. (25) Though it remains an appropriate sanction in some cases, such as when a plaintiff's claim of privilege prevents otherwise proper discovery, dismissal is no longer routine. (26)

Courts' historically harsher treatment of the plaintiff's assertion of the privilege reflects the well-established "sword and shield" doctrine. The sword and shield doctrine reasons that one who elects to seek judicial relief should not be able to use the privilege as both a sword to obstruct the opposing party's lawful discovery and a shield to avoid self-incrimination. (27) It applies to any person seeking affirmative relief, regardless of party designation. (28) While the doctrine justifies the court's imposition of remedies to counteract prejudice arising from the privilege, it does not require dismissal of the invoking party's claim. (29)

The sword and shield doctrine echoes the rationale of earlier courts, namely, that the party seeking affirmative relief is a "voluntary" party to the litigation and the defending party an "involuntary" party. A voluntary party who asserts the privilege to avoid discovery should be subjected to harsher sanctions. (30) Portraying the party seeking affirmative relief as a "voluntary" party has fallen out of favor. Even in Wehling, the court questioned the voluntariness logic as it attempted to balance the litigants' interests to create a remedy less prejudicial than dismissal of the plaintiff's claims. (31) The Wehling court was mindful that, generally, "a party 'voluntarily' becomes a plaintiff only because there is no other means of protecting legal rights." (32)

In 1990, the 11th Circuit revisited the voluntariness logic in Pervis v. State Farm Fire & Casualty Company, 901 F.2d 944 (11th Cir. 1990), in which the plaintiff exercised his privilege to avoid an examination by his insurer, which was a condition precedent to bringing an action against the insurer under his insurance policy. The court emphasized that the plaintiff "instituted this civil suit" and "chose to seek enforcement of a contract at a time when he had no right of action under that agreement," and then "chose between complete silence in response to [his insurer's] request and maintaining an action against [his insurer]." (33) The court observed that the Fifth Amendment ultimately preserves the right to choose. (34) Because the plaintiff was given a choice, and chose to remain silent during the civil trial, the trial court's entry of summary judgment against the plaintiff did not amount to a "deprivation of constitutional magnitude." (35)

Concerns about penalization based on voluntariness have been replaced with more practical concerns about the resulting prejudices to the parties. For example, automatic dismissal of the invoking party's claims has been deemed unconstitutional when the statute of limitations would bar refiling the claims after the threat of criminal prosecution ceased. (36) In Brancaccio v. Mediplex Management of Port St. Lucie, Inc., 711 So. 2d 1206 (Fla. 4th DCA 1998), the plaintiff argued that the rule of automatic dismissal was developed in divorce cases for which there was no statute of limitations. The plaintiff claimed the trial court's dismissal of his tort claims due to his invocation of the privilege impermissibly infringed his constitutional rights because by the time the limitations period expired on plaintiff's criminal charges, the statute of limitations on his civil claims would bar refiling his action. (37) The court agreed, finding that the Florida Supreme Court ordered automatic dismissal only in cases when dismissal did not effectively terminate the plaintiff's cause of action. (38) The court granted a stay of the civil lawsuit since the statute of limitations had already run on the claim and there was "a reasonably foreseeable end in sight for the criminal exposure." (39)

The 11th Circuit courts use a balancing test to determine when dismissal of a claim may be justified as a consequence of the invocation of the Fifth Amendment. (40) Though a dismissal solely attributable to the exercise of the witness' privilege is constitutionally impermissible...