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Roger, Attorney
Category: Legal
Satisfied Customers: 31685
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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In a civil case deposition, can the plaintiff take the fifth

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In a civil case deposition, can the plaintiff "take the fifth amendment" to refuse answering questions about criminal behavior about which he/she have never been charged let alone tried? This is a California case (not federal), if that makes a difference... Please reference code sections that are relevant for my further understanding...
A person always has the choice not to testify or incriminate himself with regard to any civil or criminal activity under the US Constitution.
Customer: replied 8 years ago.
The fifith amendment states, in part, "...nor shall be compelled in any criminal case case to be a witness against himself;...". So I need to know what case law or authority allows refusal to answer in a civil deposition. Certainly, in a civil deposition, the deposed has to answer factual questions, even if told to their lawyer, and even if they might be harmful to their side of the matter. So what happens if the answer would open up a criminal investigation?
The deponent has to answer nothing, either upon the advice of his/her attorney or independently. The court can hold the person in contempt for refusing to speak, but no one can force the deponent to talk.
Customer: replied 8 years ago.
Thanks - but... If the deponent does not answer question(s), the defendant can ask for sanctions, but I am asking when sanctions as a matter of law will be granted in this situation. Refusing to answer and claiming a specious lawyer-client privelege regarding factual matters should entail sanctions. But lawyer work-product questions would not. What about this situation?

Anything that is privileged communications between the attorney and his/her client is not subject to divlugement by the attorney. The client can testify about these communications if he/she chooses. However, the client cannot be sanctioned for refusing to testify about this.


The only exception for the attorney is if the person provides information in continuance of a crime. If this occurs, the attorney has a duty to notify the authorities.


Under the rules of civil procedure (Rule 37 in the federal rules and in most states), the deponent can only be sanctioned for literally failing to appear. If the deponent appears physically, but refuses to testify, that is not a sanctionable event. The only option is to ask the court to order him to testify, and if he refuses, to put him in jail until he does.

Customer: replied 8 years ago.
Well, we're getting a little far afield here, but, assuming federal rules apply, which they don't, and the deponent refuses to testify, can the court order him/her jailed if the response would violate the fifth amendmant rights? Can he/she just respond that they refuse to testify invoking their fifth amendment rights?
Only after a person is compelled to testify can he/she truly "plead the fifth". Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the right against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)).



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Customer: replied 8 years ago.
Excellent. Thank you.
No problem. Good luck.