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May 5, 2005.

NEW OPAL CORP., et al., Defendants.

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge


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 self-incrimination.

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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