In In re Taylor Brock Peters this year, the Texas Supreme Court considered the tension between the Fifth Amendment of the U.S. Constitution and the discovery needs of litigants in civil lawsuits. In Peters, a civil dram shop case filed by an injured motorist who was severely injured in a crash involving a drunk driver, the court allowed the drunk driver to invoke the Fifth Amendment to avoid providing the names of the bars that served him alcohol in response to discovery from the injured motorist. The court found the Fifth Amendment trumps discovery needs in civil cases, even if assertion of the privilege effectively bars a civil action from proceeding forward.

The Fifth Amendment of the U.S. Constitution states that "[n]o person … shall be compelled in any criminal case to be a witness against himself." The privilege also extends to civil litigation and the privilege may bar civil discovery. The privilege applies to testimony that could directly incriminate a witness and testimony that indirectly could furnish an evidentiary link that could incriminate a witness. Further, when a witness voluntarily discloses an incriminating fact, there is authority for the proposition that the witness cannot invoke the privilege to prevent disclosure of the details surrounding the fact.