The Oklahoma Bar Journal January 2024

extent to which the issues in the criminal case overlap with the issues in the civil case, 2) the sta tus of the case, including whether the defendant has been indicted, 3) the private interests of the other party in proceeding expeditiously versus the prejudice to the plain tiff caused by the delay, 4) the private interests of and burden on the defendant, 5) the interests of the court and 6) the public inter est. 45 Some of the key concerns for the invoking party include potential self-incrimination, the advantages the prosecution might enjoy with expanded discovery under the civil rules and that the criminal defense strategy might be exposed before the criminal trial. 46 Depending on how the court eval uates the factors, it might stay the case – more often when charges are already pending – or it might deny the stay, leaving the witness to choose between silence and an adverse inference versus potential self-incrimination. Should the court not wish to afford the defendant a stay to resolve their criminal matter, there are other measures it may take to mitigate as much of the harm as possible. In general, courts attempt to permit as much discovery as possible while still protecting a person’s Fifth Amendment rights. 47 If countervailing interests prevail over the defendant’s request, less drastic methods – such as “sealing answers to interrogatories, sealing answers to depositions, imposing protective orders, imposing a stay for a finite period of time, limiting a stay to a particular subject or lim iting disclosure only to counsel” – may be appropriate. 48

WHAT ARE THE CONSEQUENCES OF INVOKING THE FIFTH IN A CIVIL CASE?

CAN CORPORATIONS INVOKE IT?

No. The privilege is a personal one, not available to business enti ties. Corporations, 49 limited liabil ity companies, 50 partnerships 51 and labor unions 52 cannot invoke the Fifth. But a sole proprietorship, as an extension of the person, can. 53 The relationship between individ uals and the corporate party may have special implications under Fifth Amendment case law. For instance, a corporate document custodian cannot invoke the Fifth because they hold the records in a representative capacity for the corporation, not individually. Even though disclosing the records might incriminate them person ally, they cannot avoid the produc tion of corporate records on Fifth Amendment grounds. 54 And as noted above, the invocation of the privilege by nonparty employees – whether past or present – could create an adverse inference against the employer-defendant. 55 The uni verse of potentially complex rela tionships and their corresponding effects on a corporate defendant is worthy of extra attention going into discovery or trial. When deprivation of one’s liberty is a possibility, the stakes are high. Staying vigilant over the ways in which a response or answer in a civil case may affect a current or future criminal case is paramount. Specialized knowledge of the federal or state criminal code is not required. But having a sense of where the potential issues are and how they’re likely going to come up will help prevent a mis step with serious ramifications. CONCLUSION

A party may refuse to reveal information by invoking the priv ilege, but that party “may have to accept certain bad consequences that flow from that action.” 36 First, the invocation itself is generally considered admissible against the invoking party, no matter if it occurs at the deposition or trial. 37 That the witness remained silent in the face of an accusation is considered “evidence of the most persuasive character.” 38 Not only is it proper for evidence of the invocation to be admitted and for the opposing party to com ment on the invocation, 39 but the factfinder may draw an adverse inference that the answer to the question would have been unfa vorable to the invoking party. 40 In some cases, the adverse inference may be drawn against a party even when a nonparty takes the Fifth. 41 In the most extreme cases, courts may resort to dismissal. 42 Suffice it to say, the repercussions for invoking the privilege against self-incrimination in a civil case may negatively affect the invok ing party’s chances at a favorable outcome in that matter. WILL THE COURT STAY THE CIVIL ACTION TO AVOID THE WITNESS’S HOBSON’S CHOICE? Maybe. Generally, a court has the discretion to stay a civil case pending resolution of a related criminal action. 43 But one is not required, absent substantial prej udice to a party’s rights. 44 Courts often consider the following six factors when determining whether to stay the civil proceeding: 1) the

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

JANUARY 2024 | 13

THE OKLAHOMA BAR JOURNAL