The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
In connection with proceedings to enforce a judgment in this
action, respondents Benedict Properties, LLC, Daniel Benedict,
and Values Holdings, LLC (collectively, "Benedict"), issued
subpoenas for the depositions of defendants Norman Goldstein and
Mattie Goldstein. Norman Goldstein appeared, but asserted his Fifth Amendment privilege
against self-incrimination in response to virtually all
questions. Mattie Goldstein did not appear. Benedict moves for an
order holding both in contempt.*fn1 For the reasons that
follow, the motion will be denied as to Norman Goldstein, and an
order to show cause shall issue as to Mattie Goldstein.
Benedict has not established that Norman Goldstein's behavior
was contumacious. A witness in a civil matter may assert his
Fifth Amendment privilege against self-incrimination where he
reasonably believes that his testimony could be used against him
in a criminal matter, either directly or by leading to other
evidence. Kastigar v. United States, 406 U.S. 441, 444-45
(1972); see also Lefkowitz v. Turley, 414 U.S. 70, 77-78
(1973); Malloy v. Hogan, 378 U.S. 1, 11-12 (1964); Hoffman v.
United States, 341 U.S. 479, 486-87 (1951). Because, at the time
of his deposition, Norman Goldstein awaited sentencing on
criminal charges that related directly to the subject matter of
these civil proceedings, the reasonableness of his assertion of
the Fifth Amendment is obvious. See Mitchell v. United
States, 526 U.S. 314, 325-26 (1999) (Fifth Amendment privilege
continues until conviction and sentence have become final); see
also United States v. Domenech, 476 F.2d 1229, 1231 (2d Cir.
1973) (Fifth Amendment privilege continues after guilty plea);
Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1075 (6th
Cir. 1990) (Fifth Amendment privilege "continues in force until
sentencing"; collecting cases).
Even now, after sentence has been imposed, Goldstein's
privilege assertion remains reasonable, for he has appealed his
conviction and thus remains in jeopardy insofar as any testimony he offers in these proceedings could potentially
prejudice him either in connection with his appeal or at a
possible retrial. See Taylor v. Best, 746 F.2d 220, 222 (4th
Cir. 1984); Holsen v. United States, 392 F.2d 292, 293 (5th
Cir. 1968); Prentice v. Hsu, 280 F. Supp. 384, 388 (S.D.N.Y.
1968) (recognizing that despite defendant's conviction, "it does
not automatically follow that the questions presented . . . will
not incriminate him," for "[t]he issues raised are not yet moot
since appeal may bring about a new trial"); accord, People v.
Chambers, 585 N.Y.S.2d 84, 85 (2d Dep't 1992); Ellison v.
State, 528 A.2d 1271, 1278 (Md. 1987); cf. Ottomano v. United
States, 468 F.2d 269, 274 (1st Cir. 1972) (sustaining privilege
where motion to vacate had been pending, because had it been
granted, defendant could have been retried, in which event "any
testimony given . . . would have been admissible against
him").*fn2 Furthermore, Goldstein's criminal counsel offers
an affirmation averring that in his professional opinion,
Goldstein's fear that his responses to questions in these civil
proceedings could tend to incriminate him is reasonable.*fn3 (Adler Aff. ¶ 5.)
Of course, the general reasonableness of a fear of potential
self-incrimination does not justify a refusal to answer any and
all questions; the appropriateness of assertions of privilege
must be determined on a question-by-question basis. See Estate
of Fisher v. Comm'r of Internal Revenue, 905 F.2d 645, 649 (2d
Cir. 1990); see also United States v. Aeilts, 855 F. Supp. 1114,
1116 (C.D. Cal. 1994) ("blanket" assertions of privilege
impermissible; rather "[t]he person must claim the privilege on a
document-by-document or question-by-question basis"). But
Benedict entirely fails to carry its burden of demonstrating that
Goldstein's assertion of the privilege was in bad faith, either
generally or as to any particular question. Neither in its
initial motion nor in its reply does Benedict focus on any
question in particular; it simply remarks that "a cursory glance
at the transcript . . . clearly shows that not every question
could have touched on privileged material." (Bizar Reply Aff. ¶
5.) But it is not the Court's job to parse the transcript,
guessing at the basis of assertions of privilege as to each
question. Certainly, in the case of a witness under indictment on
charges closely related to the subject of the deposition, the
presumption must be that his assertion of privilege as to any
relevant question is reasonable, at least absent some further
showing by the movant. See Hoffman, 341 U.S. at 486-87 ("To
sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation
why it cannot be answered might be dangerous because injurious
disclosure could result."). Accordingly, as to Norman Goldstein, the assertion of the
privilege is sustained, and the motion for an order of contempt
Mattie Goldstein presents a different issue. So far as the
record indicates, despite being properly served with a subpoena
(Bizar Aff. ¶ 4, Ex. A), she simply failed to appear on the date
and time specified. (Bizar Aff. ¶ 10; Reply Aff. ¶ 6.) "[A]
refusal to appear for an examination . . . is in a different
category than a refusal to answer questions protected by the
Fifth Amendment." Hudson Tire Mart, Inc. v. Aetna Cas. and Sur.
Co., 518 F.2d 671, 674 (2d Cir. 1975). She has not responded to
this motion for an order of contempt. Nor has she offered any
explanation, justification or excuse for her failure to appear.
Rule 45(e) of the Federal Rules of Civil Procedure provides
that "[f]ailure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the
court from which the subpoena issued." Before imposing sanctions
on a person charged with civil contempt, due process requires
that the person receive notice and an opportunity to be heard.
Shoenberg v. Shapolsky Publishers, Inc. 971 F.2d 926, 934-35
(2d Cir. 1992), overruled in part on other grounds, Bassett v.
Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000). This
motion, of course, gave Mattie Goldstein notice and an
opportunity to be heard, and she failed to avail herself of these
rights. The Court therefore has the power to issue an order of
contempt under Rule 45(e). See Diamond v. Simon, No. 89 Civ.
7061, 1994 WL 10622, at *1 (S.D.N.Y. Jan. 10, 1994).
Nevertheless, the Court declines to do so at this juncture. On
the one hand, the Advisory Committee Notes to Rule 45 make clear
that "[a]lthough the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is
nevertheless an act in defiance of a court order and exposes the
defiant witness to sanctions." See Fisher v. Marubent Cotton
Corp., 526 F.2d 1338, 1340-41 (8th Cir. 1975); Higginbotham v.
KCS Int'l, Inc., 202 F.R.D. 444, 455 (D. Md. 2001). On the
other, the Court recognizes that, as the Advisory Committee Notes
to Rule 45 also explain, "because the command of the subpoena is
not in fact one uttered by a judicial officer, contempt should be
very sparingly applied." See also Cruz v. Meachum,
159 F.R.D. 366, 368 (D. Conn. 1994) ("A subpoena, obtainable as of
course from the Clerk of the Court or issued by an attorney
without any court involvement, is not of the same order as one
issued by a judicial officer in the resolution of a specific
An order of contempt leading to the imposition of sanctions is
a drastic remedy. Hence, here, as in Diamond, 1994 WL 10622,
while "the Court has the power under Rule 45(e) to impose
contempt simply upon the basis of [Mattie Goldstein]'s failure to
comply" with the subpoena issued by Benedict commanding her
appearance for deposition, "the Court will instead . . . permit
[her] a final opportunity to avoid being held in contempt of
court." Id. at *1.
Of course, the simplest way for Mattie Goldstein to avoid an
order of contempt would be for her to comply with Benedict's
subpoena, appear for the deposition, and answer any questions
posed by Benedict insofar as they seek information not
privileged.*fn4 If the Court is notified that she has
appeared for a deposition by July 2, 2004, no order of contempt
will be issued. Should she instead persist in defying the
subpoena, she is directed to appear and show cause why her failure to appear for a deposition in this matter does not
constitute a contempt of court.
Accordingly, it is hereby ORDERED that:
1. The motion for an order of contempt as to Norman
Goldstein is denied.
2. Mattie Goldstein shall appear before the Court on
Friday, July 2, at 10:00 A.M. to show cause why she
should not be held in contempt, unless before that
time she appears for a deposition pursuant to the
subpoena served upon her by Benedict.
3. Benedict is ...