The discovery stage of civil litigation presents the first potential pitfall for the actual or potential criminal defendant. Must he or she submit to a deposition? The defendant indeed is required to appear for a deposition, and cannot use the existence of parallel criminal proceedings, or his or her fear of criminal proceedings, to avoid giving a deposition. Nevertheless, the defendant may assert his or her rights under the Fifth Amendment and decline to answer specific questions that he or she reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. See SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980); Evans v. Chicago, 513 F.3d 735, 743 (7th Cir. 2008); Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000). The same standard applies when a witness takes the Fifth Amendment when testifying at trial. The witness need not have been actually accused of a crime to invoke this right. In response to an incriminating question, the witness may answer along the following lines: “Based on the advice of counsel, I assert my rights under the Fifth Amendment of the United States Constitution and respectfully decline to answer the question.”
This answer of necessity deprives the plaintiff of discovery that could be critical to the outcome of the case. Typically, a defendant who declines to testify to relevant facts faces sanctions for discovery abuse. Can the criminal defendant be sanctioned? May his or her pleadings be stricken? Since the defendant’s Fifth Amendment rights take precedence over the right to discovery, a defendant cannot be sanctioned for invoking his or her Fifth Amendment rights. See SEC v. Graystone Nash, Inc., 25 F.3d 187, 190–91 (3d Cir. 1994); Fed. R. Civ. P. 26(b)(5) (asserting privilege in response to discovery requests).The court is not empowered to strike the defendant’s pleadings, enter a default judgment, or hold the defendant in contempt solely for declining to answer questions on Fifth Amendment grounds.