Opinion
No. CIV 00-238 BB/LFG-ACE.
January 25, 2001.
ORDER ON DEFENDANTS' MOTION TO COMPEL RESPONSES TO DEPOSITION QUESTIONS
THIS MATTER comes before the Court on Defendants City of Hobbs and Brenda Smith's Motion to Compel Defendant Condarco's Answers to Certain Deposition Questions [Doc. 93].
Defendant Condarco did not file a response, and the time for responding has elapsed. For the reasons given below, the motion is granted, on conditions as stated.
Background
This is a civil action brought by Plaintiff Sondra Garcia (Garcia) against Jorge L. Condarco (Condarco), Brenda Smith (Smith), and the City of Hobbs (the City). Garcia alleges that, while she was incarcerated in the Hobbs City Jail on June 6, 1998, she was sexually assaulted by Condarco, a corrections officer at the jail at that time. She also sues the City and Smith, the jails Chief Detention Officer.
On October 25, 2000, the City and Smith noticed Condarcos deposition.
Condarco was questioned by Gregory L. Biehler, attorney for the City and Smith, as well as by Paul J. Kennedy, attorney for the Plaintiff. Also present was James W. Klipstine, Jr., representing Condarco. At the deposition, on the advice of Klipstine, Condarco asserted his Fifth Amendment privilege against self-incrimination and refused to answer approximately 128 of the questions propounded by Biehler and Kennedy.
Defendants Smith and the City now bring this motion to compel Condarcos responses to all of the 128 questions which he refused to answer at his deposition. Criminal proceedings were instituted against Condarco in connection with the incident which forms the basis of this civil lawsuit, and those proceedings were still ongoing at the time Defendants motion was filed. The Court has not been advised that these proceedings have been resolved. Defendants argue, first, that Condarco waived his right to assert the Fifth Amendment at his October, 2000 deposition, because he gave a Mirandized statement to Hobbs City police on June 24, 1998 in connection with an investigation of the charges brought by Garcia against Condarco. They further argue that, even if the statement to police did not constitute a waiver of Condarcos right to assert the Fifth Amendment at his deposition, his answers should nevertheless be compelled because the information sought is not in any way incriminating. Before reaching the merits of these arguments, the Court must first determine whether the motion should be granted on technical grounds relating to attorney default.
Condarcos Procedural Faults
This motion was filed on November 15, 2000, and Condarcos response was due on or about December 4, 2000. He has not filed a response. If a party fails to respond to a motion within the time allotted, the Court may consider such failure as constituting consent to grant the motion. D. N.M. LR-Civ. 7.5(b).
In addition, Condarcos attorney instructed him not to answer numerous questions at the deposition but did not follow up with a motion for a protective order with respect to these questions.
Although it is generally inappropriate to instruct a deponent not to answer, such instruction is allowed when necessary to preserve a privilege. Fed.R.Civ.P. 30(d)(1). However, the person asserting the privilege in these circumstances is obligated to file an immediate motion with the Court for a protective order, justifying assertion of the privilege for each question asked. It is improper to direct a witness not to answer unless a motion for protective order immediately follows, since such lack of action forced the Plaintiff to file a motion to compel and thus put the burden on the Plaintiff to justify that motion. Furniture World, Inc., v. D. A. V. Thrift Stores, Inc., 168 F. R. D. 61 (D.N.M. 1996), citing, American Hangar, Inc. v. Basic Line, Inc., 105 F. R. D. 173 (D.Mass. 1985); Nutmeg Ins. Co. v. Atwell, Vogel Sterling, 120 F. R. D. 504 (W.D.La. 1988) (Even in the case of an instruction not to answer based on privilege, the party who instructs the witness not to answer should immediately seek a protective order).
This procedure is in keeping with the principle that broad, liberal discovery is the rule in federal court, United States v. Procter Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87 (1958), and the party resisting disclosure should therefore be the one to carry the burden of justifying an exception to the rule:
[I]t is the duty of the attorney instructing the witness not to answer to immediately seek a protective order . . . The party claiming the privilege must demonstrate the potential harm which would result from disclosure. In the absence of a showing of some serious harm likely to result from responding to any given question, the policy of Rule 30(c) [i.e., that deposition testimony shall be taken subject to any objections] prevails and requires that the answers be given. Hisaw v. Unisys Corp.,134 F. R. D. 151, 152 (W.D.La. 1991).
Condarco has neither responded to the motion to compel, nor has he filed a motion for protective order. For either of these reasons, the Court could in its discretion simply grant the motion and order Condarco to submit to a continuation of his deposition and respond to all questions which he previously refused to answer. However, the fault appears to lie with Condarcos counsel rather than with Condarco himself, and the Court is reluctant to compromise Condarcos constitutional rights because his attorney failed to take proper steps to preserve them. The merits of Condarcos Fifth Amendment claim will therefore be addressed.
Waiver of Fifth Amendment Privilege
Defendants Smith and the City argue that Condarco should not be allowed to assert his Fifth Amendment privilege against self-incrimination as to questions asked at the deposition, because he previously waived his fifth amendment rights by discussing the facts of this matter prior to his deposition with a detective who was investigating the incident in relation to criminal charges.
(Memorandum in Support of Motion to Compel [Doc. 94], at unnumbered p. 2). Smith and the City append to their Memorandum a Hobbs Police Department report, including a Narrative Supplement, in which Detective Johnny Gonzales describes his interview with Jorge Condarco occurring on June 9, 1998, three days after the incident alleged in Garcias complaint. In the narrative, Detective Gonzales writes that Condarco was advised of his rights and that he signed a form stating that he understood his rights but would nevertheless make a voluntary statement. Gonzales writes that Condarco told him that he had indeed gone into Garcias cell two or three times on the date in question, to talk with Garcia and another inmate, but that Condarco denied Garcias charge that he took her into the laundry room, and he denied having sexual, or any physical, contact with Garcia. Also appended to the Memorandum is an Advise of Rights, signed and initialed by Condarco on June 9, 1998, in which he affirms that he was read his rights and obligations, including the right to remain silent, the fact that anything he did say could be used against him in court, and the fact that, if he decided to give a statement, he had the right to stop talking at any time.
Smith and the City argue that Condarcos statement to police, made under the circumstances described above, constitutes a waiver of his right against self-incrimination for purposes of the present proceedings. They contend that, since Condarco voluntarily disclosed information outside the shield of the Fifth Amendment, knowing that he was under investigation for a crime, his rights could not be further jeopardized by testimony in a subsequent civil proceeding. The Court disagrees. The great weight of authority holds that waiver of a Fifth Amendment right at one time and place, and in one proceeding, does not estop a witness from asserting the privilege in a later proceeding.
The Tenth Circuit found no waiver in a situation where a debtor in bankruptcy refused to answer questions at an examination under the Bankruptcy Act, even though he had earlier testified at a deposition in a related but separate state court proceeding.
The waiver of the Fifth Amendment privilege in these circumstances is limited to the particular proceeding in which the witness gave the testimony, but does not extend to a separate and independent proceeding. In re Beery, 680 F.2d 705, 720, n. 17 (10th Cir. 1982). The holding is accord with the majority of cases that have considered the issue.
In each of these cases the prior disclosures were held not to constitute a waiver in the subsequent proceedings for the reason that during the period between the successive proceedings conditions might have changed creating new grounds for apprehension (e.g., the passage of new criminal laws) or that the witness might be subject to different interrogation for different purposes at the subsequent proceeding . . .
The passage of time and the events occurring between the two appearances render the proceedings separate for the purposes of the waiver rule.
United States v. Miranti, 253 F.2d 135, 140 (2d Cir. 1958).
See also, Poretto v. United States, 196 F.2d 392, 394 (5th Cir. 1952) (The constitutional privilege attaches to the witness in each particular case in which he is called upon to testify, without reference to his declarations at some other time or place or in some other proceeding); United States v. Steffen, 103 F. Supp. 415, 417 (N.D.Cal. 1951) (a person is entitled to the Fifth Amendment privilege in each new and independent proceeding; otherwise he would subject himself to a new cross examination and be required under new and changed conditions to give testimony that may not have been anticipated or intended in subjecting himself to [the earlier] examination); United States v. James, 609 F.2d 36, 44-45 (2d Cir. 1979) (no waiver of right to assert Fifth Amendment at trial, based on earlier statements given to FBI and the grand jury; a waiver of the privilege in one proceeding does not affect a witness rights in another proceeding); United States v. Wilcox, 450 F.2d 1131, 1141-42 (5th Cir. 1971) (voluntary testimony in first trial does not waive the privilege with regard to second trial); United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (voluntary testimony before a grand jury does not waive the privilege against self-incrimination for purposes of trial); In re Neff, 206 F.2d 149, 152-53 (3d Cir. 1953) (same); Krause v. Rhodes, 390 F. Supp. 1070, 1072 (N.D.Ohio. 1974) (no waiver by testifying before grand jury or speaking to a member of the press).
Even in the leading case for the minority view that previous testimony can constitute a waiver, Ellis v. United States, 416 F.2d 791 (D.C. Cir. 1969), the court was careful to distinguish between prior sworn testimony at a formal proceeding, and statements volunteered during an informal investigation or properly supervised custodial situation . . .
Thus we do not hold that waiver takes place when a witness, who has made disclosures to investigating agents is called at trial, or before the grand jury. Id., at 805 n. 37.
The case cited by Smith and the City in support of their waiver argument is distinguishable.
The Tenth Circuit held in Czarlinsky v. United States, 54 F.2d 889 (10th Cir. 1931), that the filing of schedules in a bankruptcy case constitutes waiver of the privilege against self-incrimination in later proceedings, on the theory that the schedules became admissions of fact which would be admissible against the debtor in later criminal proceedings. In the present case, the statements made by Condarco to the investigator were not incriminating; the statements may or may not have been true, but Condarco denied any wrongdoing and his statements do not constitute admissions of incriminating facts. Even if voluntary testimony can work a waiver under some circumstances, no waiver will be found if the witness statements, standing alone, did not amount to an admission of guilt or furnish clear proof of crime. Rogers v. United States, 340 U.S. 367, 378, 71 S.Ct. 438, 444 (1951).
In any case, the Beery opinion, cited supra, is a later pronouncement by the Tenth Circuit and supersedes the Czarlinsky holding, and the Court adopts its reasoning that any waiver of Fifth Amendment privilege must be limited to the particular proceeding in which the waiver was given.
Waiver of the Fifth Amendment right is not lightly to be inferred, Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007 (1949), and the Court will not infer a waiver under the circumstances of this case.
Reasonable Basis for Fear of Incrimination
Smith and the City next contend that, even if Condarco did not waive his Fifth Amendment rights, he has not met his burden of establishing, as to each question asked, that he has reasonable cause to apprehend danger from a direct answer. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818 (1951). The Court agrees and will order Condarco to supply the necessary basis, in default of which the Court will order him to respond to all questions asked. The privilege against self-incrimination protects a witness from being compelled to give answers that would in themselves support a conviction, as well as answers that would furnish a link in the chain of evidence needed to prosecute the witness for a crime. Id.
The person asserting the privilege is not required to prove the hazard of incrimination in the sense in which a claim is usually required to be established in court, but it must appear that the witness has reasonable cause to apprehend danger if he answers. Id.; United States v. Jones, 703 F.2d 473, 475-76 (10th Cir. 1983).
The fear must be reasonable in light of the witness specific circumstances, the content of the questions, and the setting in which the questions are asked . . . The trial court is to evaluate the incriminatory potential of questions asked . . . The claim of privilege cannot be sustained if the fear of self-incrimination rests on remote and speculative possibilities; the privilege protects only against real dangers. Jones, 703 F.2d at 476, citing Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675 (1972). A mere imaginary possibility of danger, however remote and improbable, will not sustain a claim of privilege, Mason v. United States, 244 U.S. 362, 366, 37 S.Ct. 621 (1917), and it is for the court, not the person asserting the privilege, to determine whether a question is of such a character that an answer would tend to incriminate the witness or subject him to further danger of incrimination. Enrichi v. United States, 212 F.2d 702, 704 (10th Cir. 1954).
In order for the Court to evaluate the incriminatory potential of each question asked, the person asserting the privilege must factually establish that the risks of incrimination . . . [are] substantial and real . . . [the witness] say-so does not of itself establish the hazards of incrimination (internal punctuation omitted). United States v. Clark, 847 F.2d 1467, 1474 (10th Cir. 1988). In the present case, Condarco has not made the requisite showing. As noted above, counsel for Condarco did not file a motion for protective order following his instructions to Condarco not to answer numerous questions at the deposition, and he did not file a response to this motion, although the burden is clearly on Condarco to show how each of the 128 questions might tend to incriminate him.
The Court notes that answers to many of the questions asked would not, on their face, appear even remotely to implicate Condarco in any criminal activity. For example, Condarco was asked, And how did you come to apply to Lea County? (Deposition of Jorge Condarco, Ex. A, at 11); And you worked for Lea County for about 18 months, is that correct? (Ex. A, at 12-13); Can you tell me the positions you held at Lea County from 1996 forward? (Ex. A, at 13); Can you tell me what your job duties were when you worked for Lea County? (Ex. A, at 13); Can you tell me what training you received at the Hobbs City Jail? (Ex. A, at 19); When you went to work for the Hobbs City Jail, was there anything different about your job duties than when you were working for Lea County? (Ex. A, at 24); During the time that you worked for the City of Hobbs as a detention officer in the Hobbs City Jail, can you describe the individual who trained you? (Ex. A, at 25);
When you were working for the Hobbs City Jail, can you tell me how many inmates were generally in the facility? (Ex. A, at 26); Was there a particular time when the lights were supposed to go down and the TVs were supposed to be shut off? (Ex. A, at 30). These examples are not meant to be inclusive of all questions asked at the deposition which appear to be free of any incriminatory potential; the Court merely cites them as examples and notes that there are very many questions in this deposition transcript, the answers to which would not appear to be in any way incriminatory. The Court cannot say that they are, without further guidance from the witness as to the ground for his assertion of the privilege. [S]ufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution. Short of uttering statements or supplying evidence that would be incriminating, a witness must supply personal statements under oath or provide evidence with respect to each questions propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution . . . [A] court cannot be asked to scan all of the law for a possible connection between a question and a criminal offense. To impose such a duty on courts in response to a mere assertion of the privilege, without elaboration, in response to seemingly innocent questions devoid of a setting suggestive of producing injurious disclosures would result in a guessing game in which the witness is the final judge of the claim of privilege.
In re Morganroth, 718 F.2d 161, 169 n. 3 (6th Cir. 1983).
Because the Court cannot evaluate the incriminatory potential of the deposition questions unless Condarco provides further justification for his assertion of the privilege, as outlined above,
IT IS THEREFORE ORDERED that the Motion to Compel [Doc. 93] is granted, and Defendant Condarco is ordered to submit to a continuation of his deposition and to answer all questions posed in the original deposition, unless within ten days of this Order, he files an in camera response to the Motion, giving, for each of the approximately 128 deposition questions to which he asserted a Fifth Amendment right to refuse to answer, a detailed explanation as to how that particular question would tend to incriminate him. The Court will then consider Condarcos response and will file a supplemental order with regard to this Motion. No reply need be submitted, unless one is ordered by the Court following inspection of Condarcos response.