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Burt Hill, Inc. v. Hassan

December 4, 2009


The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge

Magistrate Judge Bissoon


Plaintiff's Motion to Compel discovery (Doc. 33) will be denied, consistent with the instructions below.

In an Order dated November 18, 2009, the Court held that Defendants' Fifth Amendment privilege against self-incrimination was not implicated by the criminal proceedings against them in the U.A.E. See id. (Doc. 30) at 2-3. Applying Third Circuit law, the Court concluded that Defendants' "fear of foreign prosecution, without more, [wa]s not a sufficient basis for [an] invocation of [the] privilege." Id. at 2 (internal quotations omitted). The Court also observed that, under the same binding precedent, there is no clear "exception" for cases where evidence adduced in U.S. criminal proceedings "will be shared with a foreign government" for the purposes of "joint prosecution," and that, even if such an exception exists, it has not been triggered here because there is "no indication that [domestic] charges have been requested or filed." Id. at 2-3. For these reasons, and because of concerns regarding international comity and enforceability, the Court declined to provide additional protections to Defendants based on their privilege against self-incrimination.

Since the November 18th Order, Defendants have persisted in their refusal to produce full responses to Plaintiff's interrogatories and document requests, again citing their rights under the Fifth Amendment. See generally Pl.'s Mot.

To the extent that Defendants' assertions of privilege rely in any way on the U.A.E. proceedings, the Court reiterates and reaffirms its November 18th ruling. In response to Plaintiff's Motion to Compel, however, Defendants raise additional issues and arguments regarding their invocation of the Fifth Amendment in connection with potential criminal liability in the United States. See generally Defs.' Opp'n Br. (Doc. 35) at 1-2, 3-7. To this limited extent, Defendants' positions warrant further attention.

Although the lack of pending criminal charges in the United States supports a denial of Fifth Amendment protection regarding the U.A.E. investigation, see discussion supra, it is not determinative of Defendants' rights in connection with potential domestic charges.

The "privilege against self-incrimination protects any person, an accused or a witness, from being compelled to speak against his penal interest." S.E.C. v. Leach, 156 F. Supp.2d 491, 493 (E.D. Pa. 2001) (citation omitted). The privilege extends to civil proceedings, and it applies not only at trial, but during the discovery process as well. S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994).

Fifth Amendment protection attaches "not only to answers that would in themselves support a conviction[,] . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Leach, 156 F. Supp.2d at 493 (citations to quoted sources omitted). The privilege against self-incrimination, moreover, is not preconditioned upon the existence of pending criminal charges. Izen v. Catalina, 256 F.3d 324, 329 (5th Cir. 2001) (so long as claimant "reasonably apprehends a risk of self-incrimination," protection applies even "though no criminal charges are pending against him . . .[,] and even if the risk of prosecution is remote") (citations to quoted sources omitted). Indeed, "[o]nce the court determines that the answers requested would tend to incriminate the witness, it should not attempt to speculate whether the witness will in fact be prosecuted." Leach, 156 F. Supp.2d at 494 (citations to quoted source omitted).

The Court agrees with Defendants that, in theory, Plaintiff's allegations may lead to reasonable apprehensions of self-incrimination for the purposes of domestic criminal charges. Count IV of the Complaint alleges violations of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. Although civil remedies are available under the CFAA, courts uniformly have recognized that the statute primarily is criminal in nature. See, e.g., P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC., 428 F.3d 504, 511 (3d Cir. 2005) (acknowledging "the criminal thrust of the [CFAA] section" permitting civil actions); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009) ("the CFAA is primarily a criminal statute"). Under analogous circumstances, courts have found defendants' potential criminal liability sufficient to implicate the Fifth Amendment. See, e.g., Leach, 156 F. Supp.2d at 495 (agreeing with defendant that, because "the SEC alleged that he engaged in securities fraud for which criminal penalties [were] available, all facts relevant to the SEC's civil suit [were] also relevant to a possible criminal proceeding"); see also generally U.S. v. U.S. Currency, 626 F.2d 11, 14-15 (6th Cir. 1980) ("a prosecutor may not circumvent a person's privilege against self-incrimination by invoking a civil remedy to enforce a criminal statute") (citation to quoted source omitted).*fn1

As referenced above, Defendants' assertions regarding their privilege against self-incrimination are tenable in the abstract, but they are insufficient in the details.

More exacting standards apply regarding Defendants' refusal to produce documents, and to provide adjudicable invocations of the Fifth Amendment in response to interrogatories, both of which will be addressed below.

A. Plaintiff's Requests for Production of Documents

To the extent Defendants believe that the content of their documents is protected under the Fifth Amendment, they are mistaken. As the Court of ...

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