Section 2.23 Privilege Against Self-Incrimination

• Library: Discovery 2015

A party has the right to claim privilege against self‑incrimination during discovery in a civil action. That party’s pleadings may be stricken, however, if the party seeks affirmative relief. Franklin v. Franklin, 283 S.W.2d 483 (Mo. banc 1955). The theory is that the party waives the privilege by placing the matter in issue, and the opposing party has a right to discover the information or obtain a dismissal of the pleadings. Geldback Transp., Inc. v. Delay, 443 S.W.2d 120 (Mo. 1969).

In State ex rel. Lieberman v. Goldman, 781 S.W.2d 802 (Mo. App. E.D. 1989), invocation of the privilege against self-incrimination to avoid compliance with discovery requests justified the trial court’s refusal to permit the defendant to seek any affirmative relief by way of counterclaim or cross-claim. But the trial court exceeded its jurisdiction in precluding the defendant’s assertion of any affirmative defenses by reason of invocation of the privilege. Furthermore, the trial court could not properly preclude the defendant from utilizing discovery procedures to support the affirmative defenses that the...