The Oklahoma Bar Journal January 2024

27. 12 O.S. §2512. 28. United States v. Rivas-Macias, 537 F.3d 1271, 1280 & n.14 (10th Cir. 2008) (quoting United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979)). 29. Id. (quoting United States v. Yurasovich, 580 F.2d 1212, 1220 (3d Cir. 1978)). 30. Harvey v. Shillinger , 76 F.3d 1528, 1535-36 (10th Cir. 1996). 31. S.E.C. v. Smart , 678 F.3d 850, 855 (10th Cir. 2012). 34. Id . (citing Davis-Lynch, Inc. v. Moreno , 667 F.3d 539, 547-48 (5th Cir. 2012) (post-discovery change of heart often places opposing party “at a significant disadvantage because of increased costs, delays, and the need for a new investigation.”)). 35. See United States v. $148,840.00 in U.S. Currency , 521 F.3d 1268, 1277 (10th Cir. 2008) (“It is well established that in a civil case a district court may strike conclusory testimony if the witness asserts the Fifth Amendment privilege to avoid answering relevant questions, yet freely responds to questions that are advantageous to his cause.”); see, e.g., Nationwide Life Ins. Co. v. Richards , 541 F.3d 903 (9th Cir. 2008) (victim’s wife precluded from testifying at criminal trial of another about her involvement or lack thereof in her husband’s murder after asserting Fifth Amendment privilege in response to questions about involvement at deposition in civil suit); Smart , 678 F.3d at 854-56 (affirming order striking defendant’s summary judgment declaration where defendant invoked the Fifth Amendment during discovery and “did not attempt to withdraw his assertion of the Fifth Amendment until after the [the plaintiff] had moved for summary judgment and the discovery cut-off date had expired.”). 36. Mid-Am.’s Process Serv. v. Ellison , 767 F.2d 684, 686 (10th Cir. 1985). 37. See, e.g., F.D.I.C. v. Fidelity & Deposit Co. of Maryland , 45 F.3d 969 (5th Cir. 1995). 38. U.S. ex rel. Bilokumsky v. Tod , 263 U.S. 149, 153–54 (1923). 32. Id. 33. Id.

39. Matter of C.C. , 1995 OK CIV APP 127, ¶11, 907 P.2d 241, 244; but see 12 O.S. §2513 (“[a] claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.”). 40. Baxter v. Palmiginano , 425 U.S. 308, 318 (1976); but see United States v. 15 Black Ledge Drive , 897 F.2d 97, 103 (2d Cir. 1990) (adverse inference instruction in civil forfeiture cases poses “a troubling question, given the severity of the deprivation at risk”). 41. See LiButti v. United States , 107 F.3d 110 (2d Cir. 1997) (establishing the widely used factors to guide whether courts draw an adverse inference from a nonparty’s invocation, including “1) the nature of the relevant relationship, 2) the degree of control of the party over the non-party witness, 3) the compatibility of the interest of the party and the non-party witness in the outcome of the litigation, and 4) the role of the non-party witness in the litigation.”); Fidelity & Deposit Co. of Maryland , 45 F.3d at 969 (5th Cir. 1995) (instruction against defendant appropriate even though nonparty investor had no special relationship to defendant fidelity bond insurer). 42. See, e.g., Serafino v. Hasbro, Inc. , 82 F.3d 515, 519 (1st Cir. 1996) (dismissal appropriate because evidence was sought was “central” to defendant’s defense, there was “no effective substitute” for plaintiff’s answers and “no adequate alternative remedy”); Wehling v. Columbia Broadcasting Sys. , 608 F.2d 1084, 1087 n. 6 (5th Cir. 1979) (dismissal may be an appropriate remedy of “last resort”); Lyons v. Johnson , 415 F.2d 540, 542 (9th Cir. 1969) (use of privilege as a shield and sword may “create an imbalance in the pans of the scales,” requiring dismissal). 43. United States v. Kordel , 391 U.S. 1, 12 n. 27 (1970); State ex rel. Oklahoma Bar Ass’n v. Gasaway , 1993 OK 13, ¶18, 863 P.2d 1189, 1197 (acknowledging that “a court may exercise its discretion and grant a stay when a strong public interest in proceeding expeditiously on a civil case is absent.”).

44. Creative Consumer Concepts, Inc. v. Kreisler , 563 F.3d 1070, 1080 (10th Cir. 2009). 45. In re CFS-Related Sec. Fraud Litig. , 256 F. Supp. 2d 1227, 1236-37 (N.D. Okla. 2003). 46. S.E.C. v. Dresser Indus., Inc. , 628 F.2d 1368, 1375 (D.C. Cir. 1980). 47. See United States v. Certain Real Prop. and Premises Known as 4003-4005 5th Ave., Brooklyn, New York , 55 F.3d 78, 84 (2d Cir. 1995). 48. CFS, 256 F. Supp. 2d at 1236. 49. Hale v. Henkel , 201 U.S. 43, 74-75 (1906). 50. United States v. Roe , 421 Fed. App’x 881, 883 (10th Cir. 2011). 51. Bellis v. United States , 417 U.S. 85, 95-96 (1974). 52. United States v. White , 322 U.S. 694, 701 (1944). 53. Braswell v. United States , 487 U.S. 99, 101 (1988). 54. Id . at 113. 55. LiButti , 107 F.3d at 123-124.

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.

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THE OKLAHOMA BAR JOURNAL