Reconciling fifth amendment claims and the factfinding process in civil antitrust litigation

• Date: 01 December 1981
• Published date: 01 December 1981
• Author: Douglas W. Kenyon,Ray V. Hartwell
• DOI: 10.1177/0003603X8102600401
• Subject Matter: Article

The Antitrust Bulletin/Winter

1981

Reconciling fifth amendment claims

and the factfinding process in civil

antitrust litigation

BY RAY

V.

HARTWELL, III* and DOUGLAS W. KENYON**

633

Evidentiary privileges frustrate the factfinding goal

of

our

adver-

sary litigation process. IWith increasing frequency, individuals are

asserting the fifth amendment privilege against self-incrimination

in civil antitrust litigation." This phenomenon is a natural conse-

quence

of

the revolutionary "criminalization"

of

both federal and

state antitrust enforcement during the past 5years.' Given the

Hunton &Williams, Richmond, Virginia.

Hunton &Williams, Richmond, Virginia.

E.g.,

MCCORMICK'S

HANDBOOK

OF

THE

LAW OF

EVIDENCE

§72 (2d

ed. E. Cleary 1972) [hereinafter McCormick on Evidence]. See, e.g.,

Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir.), vacated on

other grounds, 635 F.2d 281 (4th Cir, 1980) (en bane).

2The availability

of

the fifth amendment privilege in civil discov-

ery proceedings has been consistently recognized. See, e.g., In re

Corrugated Container Antitrust Litigation: Appeal

of

Franey, 620 F.2d

1086 (5th

en.

1980), cert. denied,

101

S. Ct. 897 (1981); In re Folding

Carton

Antitrust Litigation: Appeal

of

Brown, 609 F.2d 867 (7th Cir.

1979); In re Master Key Antitrust Litigation, 507 F.2d 292 (9th Cir.

1974). Accord, e.g., McCarthy v. Arndstein, 266 U.S. 34 (1924).

3See, e.g., Swope, "Current Trends in Antitrust Enforcement: A

Prosecutor's Perspective" (April 22, 1978) (remarks delivered at the

1978 Southeastern Corporate Law Institute).

©1981by federal Legal Publications.Tnc.

634 The antitrust bulletin

close relationship between criminal and civil antitrust litigation,"

it is hardly surprising that attorneys representing individuals

called to testify in civil depositions or trials are often loath to

have their clients risk prosecution. S

From the plaintiff's viewpoint, fifth amendment assertions by

witnesses may impede or even preclude discovery on important

issues, making

proof

of

the plaintiff's claims more difficult. Not

surprisingly, plaintiffs frequently view fifth amendment claims as

the product

of

aconspiracy of silence between witnesses and

corporate defendants, designed to obstruct legitimate discovery

and posing a serious threat to private antitrust enforcement. 6In

response, plaintiffs usually serve on corporate defendants' dis-

covery requests tailored to compel the disclosure

of

incriminating

information by or about corporate officers, and seek discovery

4Asubstantial number of private antitrust actions are filed in the

wake of federal criminal actions. By statute, guilty pleas or verdicts in

criminal actions are prima facie evidence

of

liability, and may be given

collateral estoppel effect in civil damage actions. See Clayton Act §§ 4

and

5, 15

U.S.c.

§§ 15 and 16.

5Adeponent's incriminating testimony might provide the basis for

his prosecution under §1 of the Sherman Act or other federal or state

statutes.

6See, e.g., Plaintiff State of Arkansas' Memorandum in Opposi-

tion to Motion to Exclude Fifth Amendment Testimony, filed Nov. 28,

1980 in State

of

Arkansas v. Borden, Inc., Civil Action No. LR-C-77-

126 (E.D. Ark.); Plaintiffs' Memorandum in Support of Admissibility

of

Witnesses' Refusal to Testify on Fifth Amendment Grounds, filed

April 28, 1980, and Plaintiffs' Memorandum in Support

of

Motion to

Compel Deposition Testimony of Clarke Thornton, filed Jan. 16, 1980

in In re Corrugated Container Antitrust Litigation, M.D.L. No. 310

(S.D. Tex.); Memorandum in Support of [Plaintiffs'] Motion to Compel

the Testimony of Joseph Frank, et al., filed November 13, 1978 in In re

Anthracite Coal Antitrust Litigation, M.D.L. No. 293 (M.D. Pa.).

See also, e.g., Casson Construction Co. v. Armco Steel Corp.,

1980-2 Trade Cas.

163,369

(D. Kan. 1980); In re Folding Carton

Antitrust Litigation, 465 E Supp. 618 (N.D. Ill.), rev'd on other

grounds, 609

E2d

867 (7th Cir. 1979); In re Folding Carton Antitrust

Litigation, 76

ER.D.

417 (N.D. Ill. 1977).

Fifth amendment claims :635

sanctions against defendants unwilling or unable to comply with

such requests.' Similarly, plaintiffs often attempt to elicit fifth

amendment assertions in depositions, and then argue that the

assertions should be admissible at trial as "evidence" giving rise

to adverse inferences against defendants. 8

Fifth amendment assertions also create a number of difficult

problems for antitrust defendants. For example, fifth amendment

claims may deprive defendants

of

important evidence on the

purpose and effects

of

the conduct at issue. By eliminating such

evidence, they can seriously impair a defendant's ability to

respond to a plaintiff's

proof

and, conversely, may relieve a

plaintiff

of

the potentially complex task

of

challenging defenses

by cross-examination or rebuttal. More importantly, fifth amend-

ment claims cannot be cross-examined.

If

viewed as "evidence,"

their impact will be far more damaging to a defendant than

substantive testimony. A jury will probably view "the resort to

privilege as a clear confession of crime.?" Indeed, the limited

experience

of

antitrust litigants suggests that, far from being an

effective defense tactic, witnesses' fifth amendment assertions do

more harm to defendants than to plaintiffs. 10

7See, e.g., Casson Construction Co. v. Armco Steel Corp., supra

note 6; In re Anthracite Coal Antitrust Litigation, 82

ER.D.

364 (M.D.

Pa.

1979). See a/so, e.g., Gen'l Dynamics Corp. v. Selb Mfg.

Co.,

481

E2d

1204 (8th Cir. 1973); United States v. 3963 Bottles, Etc., 265

E2d

332 (7th Cir. 1959).

8See, e.g., Pretrial Order No. 51, filed May 23, 1980 in In re

Corrugated Container Antitrust Litigation,

M.D.L.

No. 310 (S.D. Tex.)

("The

Court is faced with the problem of giving the jury evidence which

is less than perfect or no evidence at all."); Plaintiff's Proposed Jury

Instruction

No.6,

State

of

Arkansas v. Borden, Inc., Civil Action No.

LR-C-77-126 (E.D.

Ark.),

98 J.

WIGMORE,

EVIDENCE

§2272 at 426 (McNaughton rev. ed.

1961).

10 In a recent antitrust class action trial, for example, the plaintiffs

were allowed to read into evidence "fifth amendment" depositions

of

the defendants' employees, and to "corroborate" other testimony by

announcing repeatedly to the jury that 143 nonparty deposition wit-