Opinion
No: 96-1150-BTM (POR)
May 29, 1997
ORDER FINDING THE DEPONENT BARBARA RICHMOND'S ASSERTIONS OF THE FIFTH AMENDMENT TO BE INAPPOPRIATE
Introduction
A discovery dispute concerning the appropriateness of a deponent, Barbara Richmond, asserting the Fifth Amendment in response to specific questions and requests for production of specific documents at a deposition came on for hearing before this Court on May 12, 1997. The deponent, Barbara Richmond, appeared on her own behalf having not previously consulted with counsel. Curtis Richmond, proceeding in pro se, appeared on his own behalf. George Harris, Esq., United States Department of Justice, appeared for Defendant United States. Michael Fabiano, Esq., Jones, Day, Reavis Pogue, appeared on behalf of Defendant TRW Info Services Division. Leslie Branman Smith, Esq., Office of the California Attorney General, appeared for Defendant State Franchise Tax Board.
The Court examined Barbara Richmond, the deponent at issue, in camera. Upon questioning, Barbara Richmond wished to consult an attorney prior to this Court issuing a ruling regarding this matter. Due to the fact that Barbara Richmond is unrepresented in an action where her husband is a pro se plaintiff, the Court found good cause in an Order dated May 12, 1997, to delay ruling until May 27, 1997, so that Barbara Richmond may consult an attorney regarding her assertions of the Fifth Amendment to specific questions and requests for the production of documents at deposition. Barbara Richmond has not requested a further hearing, and therefore, the Court shall now issue its ruling.
Background
Mrs. Richmond asserted the Fifth Amendment on a question-by-question basis to the following series of questions:
1. Is a retirement or pension plan offered to part-time and/or full-time employees at your place of employment, General Atomics?
2. Are you a part-time or full-time employee at your place of employment, General Atomics?
3. What are the specific benefits of any retirement or pension plan offered by your employer, General Atomics?
4. Are you a participant in a retirement or pension plan at your place of employment, General Atomics?
5. If you are a participant in a retirement or pension plan, how long have you been a participant?
6. If you are a participant in a retirement or pension plan, was this fact listed in any bankruptcy plan?
7. Were you a participant in a retirement or pension plan in 1990?
8. If you are a participant in a retirement or pension plan, is your husband a beneficiary under the plan?
9. If your husband is a beneficiary under your retirement or pension plan, have you ever executed any documents with respect to your husband's involvement in the plan?
Mrs. Richmond also asserted the Fifth Amendment on a question-by-question basis to the following requests for the production of documents:
1. Any documents that reflect whether she was a participant in a retirement or pension plan at General Atomics.
2. Any documents that reflect the dates of her participation in a retirement or pension plan at General Atomics.
3. Any documents that describe a retirement or pension plan at General Atomics.
Fifth Amendment Privilege
The Fifth Amendment privilege against self-incrimination applies in any type of proceeding, including civil proceedings. Maness v. Myers 419 U.S. 449, 46 1-64, 95 S.Ct. 584, 593-94 (1975). To properly assert the Fifth Amendment privilege, a person must claim the privilege on a question- by-question basis and may not make a "blanket assertion" of the privilege. United States v. Brown, 918 F.2d 82, 84 (9th Cir. 1990). The privilege applies to evidence which may support directly a criminal conviction and "information which would furnish a link in the chain of evidence that could lead to a prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution". Hoffman v. United States. 341 U.S. 479, 485-86, 71 S.Ct. 814, 818 (1951).
One validly invokes the privilege only when there are "substantial hazards of self- incrimination" that are "real and appreciable", not "imaginary and insubstantial". United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018 (1980). The Court can make a determination of whether "substantial hazards of self-incrimination" exist by conducting an in camera "examination of the questions, their setting, and the peculiarities of the case". Neff, 615 F.2d at 1240.
Deciding whether a possibility of criminal prosecution exists sufficient to trigger Fifth Amendment protection turns on "the objective reasonableness of the target's claimed apprehension of prosecution".United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir. 1990). If the potential to incriminate oneself exists, then "courts should not engage in raw speculation as to whether the government will actually prosecute . . . and should only pursue that inquiry when there are real questions concerning the government's ability to do so because of legal constraints such as statute of limitations . . ." Sharp, 920 F.2d at 1171.
Disussion
Having thoroughly considered the applicable law, the oral arguments thereon, the letter exhibit provided by pro se Plaintiff Curtis Richmond attached to this Order for filing, the in camera examination of Mrs. Richmond, and the questions, their setting, and the peculiarities of the case, and good cause shown, IT IS HEREBY ORDERED that Mrs. Richmond shall answer the foregoing questions or requests for production of documents. Although Mrs. Richmond asserted the Fifth Amendment on a question-by-question basis and did not make a blanket assertion of the privilege, she has failed to show any real, appreciable or substantial hazard of self- incrimination by responding. The deposition of Mrs. Richmond shall be completed within thirty (30) days of the date of this Order.
EXHIBIT A
Internal Revenue Service Department Of The Treasury INTERNAL REVENUE SERVICE District Special Procedures Staff Director 880 Front Street, Suite 3269 San Diego, CA 92101-8869
Person to Contact: J. Maloney Telephone Number: (619) 557-5930 Curtis R Barbara Richmond Refer Reply to: 1505 Calle Narcisos Determination of Discharge Encinitas, CA 92024-4719-057 Date: 06-01-93
Dear Mr. Mrs. Richmond,
Your recent correspondence regarding your 1040 tax assessments for 1978 and 1979 was referred to me for response. I have reviewed transcripts of the tax accounts and the bankruptcy information you provided.
Our records show that these tax years hve been in dispute for quite some time, including prior Tax Court and other litigation. We also show that you have signed waivers of the statute within which we can make assessments, extending those dates to 10-03-93 for the 1978 year and 06-27-94 for the 1979 year.
The Bankruptcy Code, 11 USC, section 523(a)(1)(A) and section 507(a)(7)(A)(iii) provide an exception to discharge of tax liabilities which were not assessed prior to, but were assessable after the bankruptcy. Under this exception, the assessments for 1978 and 1979 were properly made and are debts not discharged in the bankruptcy.
If you have any questions about this, you may wish to discuss the matter with counsel. I can be reached at the address and telephone number given above.
Sincerely,
/s/ J. Maloney J. Maloney Bankruptcy Advisor