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OS RECOVERY, INC. v. ONE GROUPE INTERNATIONAL

United States District Court, S.D. New York


April 12, 2005.

OS RECOVERY, INC., et al., Plaintiffs,
v.
ONE GROUPE INTERNATIONAL, INC., et al., Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

As the Court previously has indicated, this case has been characterized by a virtually complete lack of cooperation by the parties in conducting discovery and by an almost endless array of charges and countercharges. Now the parties have filed a virtual avalanche of motions, probably amounting to thousands of pages, for various sorts of sanctions. One, at least, may be dealt with swiftly.

At depositions of defendant Randy L. Johnson, Jr., conducted in 2002 and 2003, Mr. Johnson invoked the Fifth Amendment in declining to respond to questions. He did so again in his answer to the complaint in July 2004. For some reason, plaintiffs now move for what they call "adverse inference sanctions" against Mr. Johnson. Their motion attaches three lengthy tables which collectively set out each question or allegation in response to which Mr. Johnson invoked his privilege against self incrimination and, for each, the inference which the plaintiffs seek to have the Court draw in consequence of the invocation.

  In Baxter v. Palmigiano, 425 U.S. 308 (1976), the Supreme Court held that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Id. at 318. Accordingly, the Second Circuit subsequently held in Brink's Inc. v. City of New York, 717 F.2d 700 (2d Cir. 1983), "that it is unfair to prevent a jury from drawing inferences against defendants when they or their employees exercise a privilege." Id. 709 (emphasis in original). See also LiButti v. United States, 107 F.3d 110, 120-21 (2d Cir. 1997). In other words, the claims of the privilege against self-incrimination "were admissible and competent evidence" in the circumstances of that case. 717 F.2d at 710. The question whether to draw adverse inferences and, if so, which inferences was for the trier of fact.

  So too here. The invocation of the privilege against self-incrimination is not discovery misconduct. While, in light of Baxter and its progeny, it is not free of risk, it is not for a judge to take from the jury the question whether an adverse inference is warranted. Moreover, there is at least some authority, ignored by plaintiffs, to the effect that an adverse inference from invocation of the privilege may be appropriate only where there is independent evidence corroborating the proposition sought to be inferred. E.g., Doe v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000). Accordingly, plaintiffs' motion for adverse inference sanctions against Randy L. Johnson, Jr., is denied. Should any invocation of the privilege by Mr. Johnson be received in evidence — a matter that will depend upon relevance and Rule 403, perhaps among other considerations — the Court will consider an appropriate instruction.

  SO ORDERED.

20050412

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