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CARTER-WALLACE, INC. v. HARTZ MT. INDUS.

September 22, 1982

CARTER-WALLACE, INC., Plaintiff,
v.
HARTZ MOUNTAIN INDUSTRIES, INC., and the Hartz Mountain Corporation, Defendants


Robert L. Carter, District Judge.


The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

In the latest flurry of bitter, sometimes peevish papers that have been filed in this action, Carter-Wallace, Inc. ("C-W"), and Hartz Mountain Industries, Inc. ("Hartz"), have each brought two motions.

 In its first motion, C-W asks the court, pursuant to Rules 26(b)(3) and 37, F.R.Civ.P., to order two of Hartz' top executives to respond to questions that they refused to answer at C-W's depositions or, in the alternative, to rule them ineligible to testify at trial. In addition, C-W seeks to compel testimony and the production of materials that Hartz asserts are protected under the work product doctrine.

 When they were deposed by C-W, David Lovitz, President of Hartz, and James D. Proud, Senior Vice President for Sales and Marketing, invoked the fifth amendment's guarantee against self-incrimination and refused to answer most of C-W's questions. They stated that on the advice of counsel they would not respond because of an ongoing investigation into Hartz' activities by a federal grand jury in the Eastern District of Virginia.

 C-W asserts three grounds for its belief that these Hartz executives should be compelled to answer C-W's questions, notwithstanding their reliance on the fifth amendment.

 First, C-W contends that the Hartz executives asserted their right against self-incrimination in such a vague and ambiguous way that they did not formally invoke it. C-W's contention has no merit. While the responses of Lovitz and Proud and the explanations of their attorneys with regard to exactly which constitutional provisions they were invoking were less than pellucid, it is nonetheless true "that a claim of the privilege [against self-incrimination] does not require any special combination of words," Quinn v. United States, 349 U.S. 155, 162, 75 S. Ct. 668, 673, 99 L. Ed. 964 (1955). That C-W would spend pages and pages in its papers quibbling over the fact that Lovitz and Proud invoked the fifth amendment generally rather than the self-incrimination clause specifically wastes both the court's time and the client's resources. Despite the vague way in which Lovitz and Proud claimed their fifth amendment rights, their assertion was valid because "the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the [questioner] of his intention." Id. at 164, 75 S. Ct. at 674.

 Second, C-W argues that any claim of privilege asserted by Hartz' top personnel could not be justified because, in C-W's words, there is no "real, substantial hazard of incrimination." The privilege against self-incrimination may, of course, be relied on in connection with civil depositions, Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 1656, 32 L. Ed. 2d 212 (1972), and determinations as to whether the privilege is justified are to be made by the trial court based upon the particular circumstances of each case. Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951); Camelot Group, Ltd. v. W.A. Krueger Co., 486 F. Supp. 1221, 1225 (S.D.N.Y.1980) (Weinfeld, J.). "The protection of the privilege is confined to instances where the witness has reasonable cause . . . to believe that a direct answer would support a conviction or furnish a link in the chain of evidence needed to prove a crime." Camelot Group, Ltd. v. W. A. Krueger Co., supra at 1225. What is more, "the right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution." In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir.1974) (emphasis in original); accord United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1957); Camelot Group, Ltd. v. W.A. Krueger Co., supra at 1229.

 Because there appears to be a real possibility that some of Hartz' top executives will face prosecution as a result of the grand jury investigation in Virginia, their invocation of the fifth amendment here "protects against real dangers, not remote and speculative possibilities," Zicarelli v. New Jersey Commission of Investigation, 406 U.S. 472, 478, 92 S. Ct. 1670, 1674, 32 L. Ed. 2d 234 (1972); accord United States v. Apfelbaum, 445 U.S. 115, 128, 100 S. Ct. 948, 955, 63 L. Ed. 2d 250 (1980), and should therefore be upheld.

 Third, C-W argues that by giving deposition testimony about Hartz' marketing practices in A.H. Robins Co. v. Hartz Mountain Corp., Civ. Action No. 78-0142-R (E.D.Va.1979), the Hartz executives waived their right to invoke the fifth amendment. C-W argues that inasmuch as Lovitz and Proud have already given testimony about the company's marketing practices, any further testimony about the details of such practices "would not further incriminate" them. Rogers v. United States, 340 U.S. 367, 373, 71 S. Ct. 438, 442, 95 L. Ed. 344 (1951). This contention fails not only because "a waiver of the fifth amendment's privilege against self-incrimination should be inferred only in the most compelling of circumstances," Klein v. Harris, 667 F.2d 274, 288 (2d Cir.1981); E.P. Hutton & Co. v. Jupiter Development Corp., 91 F.R.D. 110, 114 (S.D.N.Y.1981) (Ward, J.), but also because "a waiver of the privilege in one proceeding does not affect a witness' rights in another proceeding." United States v. James, 609 F.2d 36, 45 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S. Ct. 1082, 63 L. Ed. 2d 321 (1980); United States v. Miranti, 253 F.2d 135, 139-40 (2d Cir.1958), but see Ellis v. United States, 135 U.S. App. D.C. 35, 416 F.2d 791 (D.C.Cir.1969).

 The Hartz executives note that their testimony in the Robins litigation was given before the grand jury was convened. Because at the time of the Robins case, Hartz personnel apparently saw little or no "possibility of prosecution" and thus did not deem it necessary to invoke the fifth amendment, it would be harsh indeed to hold that the deposition testimony in that case waived their fifth amendment privileges here. Prior disclosure should not be held to constitute a waiver in subsequent proceedings when the reason for apprehension did not exist at the time the witness gave testimony in the first proceeding. United States v. Miranti, supra at 140.

 C-W has no basis for asserting that any new substantive testimony by Hartz executives would not further incriminate them. As this court has explained, if the initial statement is incriminating, a subsequent statement on the same subject would necessarily be further incriminating because the second statement "would corroborate the earlier statement, making it more difficult for the witness to discount the earlier statement and hence increasing the danger of conviction." E.F. Hutton & Co. v. Jupiter Development Corp., 91 F.R.D. 110, 115 (S.D.N.Y.1981) (Ward, J.). What is more, what C-W is seeking is much more than getting Lovitz and Proud merely to fill in the details of responses they made in prior depositions. Rogers v. United States, supra at 374, Camelot Group, Ltd. v. W.A. Krueger Co., supra at 1230.

 Even if, as C-W contends, the Hartz executives had given deposition testimony in civil actions after the grand jury was convened, such testimony should still not be construed as waiving their fifth amendment rights. People who testify at depositions may agree to do so shortly after a grand jury is convened, but may reasonably balk later on as they begin to appreciate the "possibility of prosecution" that may result from grand jury proceedings. It would not be fair to force witnesses to sacrifice their fifth amendment rights because of their initial failure to appreciate the gravity of a grand jury investigation. A witness in a civil case may "refuse to answer any questions about a matter already discussed, even if the facts already revealed are incriminating, as long as the answers may tend to further incriminate him," In re Master Key Litigation, supra at 294 (emphasis in original); Usery v. Brandel, 87 F.R.D. 670, 683 (W.D.Mich.1980), and, as explained above, the possibility of further incrimination certainly exists in this case.

 While the court is confident that Lovitz and Proud did not waive their fifth amendment privileges, there is no justification for their more or less blanket invocation of the privilege. "As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a 'real danger' of further crimination." Rogers v. United States, supra at 374. While the answers to many questions that C-W posed to Lovitz and Proud "could possibly" provide a link in the chain of evidence needed to prove a crime, In re Master Key Litigation, supra at 294, many of the questions that the executives refused to answer were wholly innocuous inquiries into such subjects as the basic duties and responsibilities of the two executives and whether certain individuals were employed by Hartz. Because the answers to such questions "could not possibly" provide an incriminating link in the chain of evidence, Lovitz and Proud are ordered to respond to the questions enumerated in the Appendix to this opinion.

 In order to avoid unfair surprise, C-W has asked, as part of its motion, that Hartz' top executives not be allowed to testify at trial if the court upholds their refusal to answer any of C-W's questions on fifth amendment grounds. The request seems premature. With the hundreds of volumes of depositions from the Robins litigation that C-W has received, it would be difficult to conclude at this point that the danger of unfair surprise is imminent or grave. However, if at any time before or ...


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