United States District Court, S.D. New York
April 12, 2005.
OS RECOVERY, INC., et al., Plaintiffs,
ONE GROUPE INTERNATIONAL, INC., et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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
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
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