ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Misc. No. 78-0780)
Before Gibbons, Rosenn and Garth, Circuit Judges.
This appeal requires that we decide whether a witness under subpoena in a civil proceeding may validly exercise his fifth amendment privilege against self-incrimination by refusing to submit to any interrogation except for questions as to his name and business address. We hold that a witness in a civil proceeding may not invoke a blanket fifth amendment privilege prior to the propounding of questions and, therefore, reverse the judgment of the district court.
National Life Insurance Company ("National Life") commenced an action in the United States District Court for the Southern District of Florida against Hartford Accident and Indemnity Company and several other insurance companies seeking recovery under bonding agreements for injuries resulting from the allegedly fraudulent acts of two of National Life's general agents. In the normal course of discovery, a subpoena duces tecum was issued by the District Court for the Eastern District of Pennsylvania commanding Arnold Weiss to appear for the taking of his deposition and instructing him to bring certain enumerated documents. Weiss, a certified public accountant, and his firm, Weiss, Freedman & Company, apparently had some dealings with the two National Life general agents.
Weiss appeared at the deposition, stated his name and business address and then, through his attorney, refused to testify further on the ground of possible self-incrimination. Weiss' attorney stated:
If you want to submit a list of the questions, I would be most happy to sit down with Mr. Weiss and make a determination of whether or not he can answer them or give you an affidavit with regard to those questions. But I will not allow him to be questioned at this time.
Before any additional questions could be asked, Weiss left the deposition proceedings. National Life continued the examination in absentia, recording "no response" to the remaining questions.
Following Weiss' refusal to testify, National Life moved under Fed.R.Civ.P. 37(a)(1) in the district court for an order compelling Weiss to appear a second time for the taking of his deposition and requiring him to assert his privilege against self-incrimination only as to those specific questions which Weiss believed might involve incriminatory responses. The district court denied the motion, reasoning that
(T)he face of the questions asked to Mr. Weiss in absentia shows that answers might establish a connection between Mr. Weiss and certain other individuals, and might link Mr. Weiss and the others to dubious insurance sales practices and clandestine disposal of the funds generated by those practices.
National Life filed this appeal, arguing that Weiss has no right to assert a blanket fifth amendment privilege in a civil proceeding before the questions are put to him.
This court, sua sponte, has raised the issue of appellate jurisdiction and requested both parties to submit supplemental briefs. Our concern was that the order of the district court, denying the motion to compel discovery was not "final" within the meaning of 28 U.S.C. § 1291.*fn1 After careful ...