United States District Court, S.D. New York
May 5, 2005.
MAHEESH SHARMA Plaintiff,
NEW OPAL CORP., et al., Defendants.
The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This action was brought under the Fair Labor Standards Act,
29 U.S.C. § 201, et seq., and the New York Labor Law, to obtain
unpaid minimum wages, overtime premiums, and liquidated damages
on behalf of Plaintiff, Maheesh Sharma, who was employed as an
assistant chef in the Manhattan branch of a restaurant doing
business as "Dimple Indian Fast Food" (hereinafter "Dimple").
Presently before the Court is Plaintiff's application for an
order compelling a third-party, Mannan Motiayan ("Motiayan"), to
respond to questions posed to him at his deposition on February
10, 2005. With few exceptions, in response to questions addressed
to him, Motiayan invoked his Fifth Amendment privilege against
The standards governing the propriety of invocation of the
Fifth Amendment are straightforward and well-established. The
privilege may be invoked in any civil proceeding "whenever a
witness reasonably believes that his testimony could furnish a
link in the chain of evidence needed to prosecute him for a
crime." Estate of Fisher v. Comm'r of Internal Revenue,
905 F.2d 645, 648 (2d Cir. 1990) (quoting Hoffman v. United States, 341 U.S. 479,
486, 71 S. Ct. 814, 818 (1951)) (internal quotation marks
omitted). "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
of why it cannot be answered might be dangerous because injurious
disclosure could result." Id. at 648-49 (quoting Hoffman,
341 U.S. at 486-87, 71 S. Ct. at 818). The danger of
self-incrimination must be real, not remote or speculative. Id.
at 648; see also Andover Data Servs. v. Statistical Tabulating
Corp., 876 F.2d 1080, 1082 (2d Cir. 1989).
The witness need not prove that the government will, or is
likely to prosecute him, but must only show potential
incrimination. See Fisher, 905 F.2d at 649. "When the danger
is not readily apparent from the implications of the question
asked or the circumstances surrounding the inquiry, the burden of
establishing its existence rests on the person claiming the
privilege," and can be done in camera. Fisher,
905 F.2d at 649, 650; accord New York State Organization For Women v.
Terry, 886 F.2d 1339, 1356-57 (2d Cir. 1989); AAOT Foreign
Economic Assn'n (VO) Technostroyexport v. Int'l Dev. and Trade
Servs., Inc., No. 96 Civ. 9056 (JGK) (AJP), 1999 WL 970402, at
**8-9 (S.D.N.Y. Oct. 25, 1999).
At first blush, the basis of Motiayan's broad invocation of his Fifth Amendment rights is not readily apparent. Plaintiff
asserts that Motiayan is or was the head chef at Dimple, not an
owner of the enterprise. Yet, in addition to declining to answer
any questions relating to his employment at, or knowledge of, the
Dimple business, Motiayan also refused to respond to questions
about his residence, his date of birth, his present employment,
and whether he knew Plaintiff. Accordingly, the Court directed
Motiayan to provide an in camera submission to the Court
which provided a more explicit basis for his broad invocation of
Fifth Amendment privilege. In response, Motiayan's attorney
provided a letter to the Court for in camera consideration.
(See Letter from Krishnan S. Chittur, Esq., dated Apr. 18,
2005.) The letter provides a description of Motiayan's Fifth
Amendment concerns and cites to various criminal statutes which
pertain to those concerns. In fact, in an earlier letter to the
Court, which was not submitted in camera, Motiayan's attorney
described, in general terms, some of the considerations that
motivated Motiayan in invoking the Fifth Amendment.
Here, the circumstances of the case abundantly show
the possibility of criminal prosecution under a
variety of state and federal laws. The restaurant
Dimple appears to have been violating federal
criminal laws concerning employment of illegal
aliens, and state and federal criminal laws
concerning labor and tax. From the questions posed
. . ., and the plaintiff's own acknowledgments in the
Complaint and elsewhere, it is clear that Mr.
Motiayan's answers concerning his alleged residence
in the United States, alleged employment, alleged
receipt of income, and alleged activities at Dimple
tend to incriminate him. Moreover, any answer would also obviously suggest criminal complicity in
Dimple's violations of federal and state criminal
laws, raising the prospect of aiding and abetting
liability under federal criminal laws.
(Letter from Krishnan S. Chittur, Esq., dated Mar. 28, 2005, at
4) (citations omitted).
Because it is alleged that Motiayan played a pivotal role in
the operation of Dimple, which is alleged to have employed
undocumented aliens and violated federal wage and labor statutes,
his attorney's concerns about both principal liability, as well
as potential liability for conspiracy and aiding and abetting
various offenses related to the operation of the restaurant, are
not frivolous. See 29 U.S.C. § 203(d) (defining an employer
under the FLSA as "any person acting directly or indirectly in
the interest of an employer in relation to an employee").
Moreover, based upon Motiayan's refusal to respond to questions
about his current address, the length of residency at his current
address, and his previous employment, it may reasonably be
inferred that Motiayan has concerns about his own immigration,
employment, and tax status. Plaintiff should have some
appreciation of those concerns since he, as well, invoked his
Fifth Amendment rights at his deposition when asked about his
citizenship, whether he has passport, and when and how he entered
the United States. (See, e.g., Deposition Transcript of Mahesh
Sharma, dated Feb. 16, 2005, at 6-8, 24-25.)
The privilege against self-incrimination "must be accorded
liberal construction." Hoffman, 341 U.S. at 486,
71 S.Ct. at 818; see also Fisher, 905 F.2d at 648 ("The guarantee must be
broadly construed to serve the right it was designed to
protect. . . ."). The person invoking the Fifth Amendment need not
prove the hazard he faces. It need only be evident "that a
responsive answer to the question . . . might be dangerous because
injurious disclosure could result." Hoffman,
341 U.S. at 486-87, 71 S. Ct. at 818. Although there were a few relatively
innocuous questions which Motiayan could have answered without
fear of incriminating himself, those questions had little
likelihood of yielding relevant information to the claims in this
action. The thrust of the deposition questioning, however, was
addressed to Motiayan's work at Dimple and knowledge of its
operation. He has sufficiently demonstrated why he held a
reasonable belief that his response to those questions could
create a link in the chain of evidence needed to prosecute him
for various federal offenses.
Accordingly, Plaintiff's application to compel responses to the
deposition questions is denied.
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