Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because, in contrast to the criminal context, the finder of fact in a civil case may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. We discuss below a number of recent decisions from the Southern District of New York addressing when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.
Nuts and Bolts
Although the Fifth Amendment is available in any proceeding in which a witness reasonably believes that his or her testimony “could be used in a criminal proceeding or could lead to other evidence that might be so used,” the privilege is not available to every litigant or witness in every circumstance. Andover Data Servs. v. Statistical Tabulating, 876 F.2d 1080, 1082 (quoting Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (internal quotations omitted)). Southern District Judges Jesse M. Furman, Andrew L. Carter Jr. and Laura Taylor Swain each issued decisions within the past year discussing the threshold questions of who can invoke the privilege and under what circumstances.
