The Oklahoma Bar Journal January 2024

ABOUT THE AUTHORS

who gives it”); Lefkowitz v. Turley , 414 U.S. 70, 77 (1973) (explaining that the Fifth Amendment permits an individual “not to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him”). 3. Hoffman v. United States , 341 U.S. 479, 486-487 (1951). 4. Id. At 486 (citing Mason v. United States , 244 U.S. 362, 365 (1917)); State ex rel. Oklahoma Bar Ass’n v. Moss , 1990 OK 22, 794 P.2d 403, 410 n. 6 (citations omitted) (the danger of incrimination must be “substantial and real, and not merely trifling or imaginary”). 5. United States v. Schmidt , 816 F.2d 1477, 1481-82 (10th Cir. 1987); United States v. Jones , 703 F.2d 473, 477 (10th Cir. 1983). 6. See, e.g., Davis-Lynch v. Moreno , 667 F.3d 539, 547 (5th Cir. 2012). 7. See Omni Air Int’l, LLC v. Austin Technik 1, Inc. , 2018 WL 1740936, at *5 (N.D. Okla. April 11, 2018) (permitting a party to plead the Fifth Amendment in response to a request for admission); Helena Chem. Co. v. Skinner , No. 4:11CV00691 SWW, 2012 WL 3860604, at *2 (E.D. Ark. Sept. 5, 2012) (holding party was justified in pleading the Fifth in response to request for admission, notwithstanding Rule 36(b)’s limitation that a party’s answer to a request for admission “cannot be used against the party in any other proceeding”). But see Ledet v. Perry Homes, 2022 WL 831809, at *1 n.1 (5th Cir. March 21, 2022) (“[R]equests for admissions responses cannot be used against defendants in criminal proceedings, so the Fifth Amendment is not a defense to the requests.” (citing Fed. R. Civ. P. 36(b))). 8. United States v. Hubbell , 530 U.S. 27, 36 (2000). Although the privilege may not be properly invoked over the production of nontestimonial evidence or evidence that is a “byproduct of obedience to a regulatory requirement, such as filing an income tax return, maintaining required records or reporting an accident.” Id. at 35. 9. Schmidt , 816 F.2d at 1482. 10. Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty ., 542 U.S. 177, 190 (2004).

11. Hoffman , 341 U.S. at 486 (quoting Temple v. Commonwealth , 75 Va. 892, 899 (1881)). 12. Hoffman , 341 U.S. at 486. 13. Id. at 486-87. 14. Id. 15. See, e.g., S.E.C. v. Farmer , 560 Fed. Appx. 324, 326-27 (5th Cir. 2014) (discussing the procedure a court should undertake to receive evidence on the potentially incriminating nature of the testimony). 16. United States v. Jones , 703 F.2d 473, 478 (10th Cir. 1983). 17. United States v. Nipper , 210 F.Supp.2d 1259, 1262 (N.D. Okla. 2002). 18. Brown v. Walker , 161 U.S. 591, 597-98 (1896). 19. Frierson v. Woodford , 463 F.3d 982, 987 n.5 (9th Cir. 2006). 20. See Robert Heidt, The Conjurer’s Circle the Fifth Amendment Privilege in Civil Cases , 91 Yale L.J. 1062, 1078–80 (1982). 21. Kastigar , 406 U.S. at 460. 22. 18 U.S.C. §6002 (“no testimony or other information compelled under the order [compelling testimony under use immunity] (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case.”); Hubbell , 530 U.S. at 45. 23. Hubbell , 530 U.S. at 45; Kastigar , 406 U.S. at 453. 24. Hubbell , 530 U.S. at 40. 25. See, e.g., Rogers v. United States , 340 U.S. 367, 373 (1951) (“Disclosure of a fact waives the privilege as to details. ... ‘Thus, if the witness himself elects to waive his privilege ... and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure.’” (quoting Brown , 161 U.S. at 597)); Mitchell v. United States, 526 U.S. 314, 321 (1999) (after witness waives for “matters to which the witness testifies,[ ] the scope of the waiver is determined by the scope of the relevant cross-examination.”). 26. Id . See also 12 O.S. §2511 (the witness “waives the privilege if the person or the person’s predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter.”).

Andrew J. Hofland is a shareholder at

GableGotwals, where his practice focuses on white-collar defense and

commercial litigation. He previously served as an assistant U.S. attorney for the Northern District of Oklahoma and a Navy judge advocate.

Justin A. Lollman is a shareholder at GableGotwals, where his practice focuses on appeals, complex

commercial litigation and white-collar criminal defense. Before entering private practice, Mr. Lollman clerked on the U.S. Court of Appeals for the 7th Circuit and the U.S. District Court for the Northern District of Oklahoma. ENDNOTES 1. U.S. Const. Amend V (emphasis added). 2. Kastigar v. United States , 406 U.S. 441, 445 (1972); see also McCarthy v. Arndstein , 266 U.S. 34, 40 (1924) (holding the nature of the proceeding is not determinative but rather “wherever the answer might tend to subject to criminal responsibility him

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.

14 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL