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The Florida Bar
www.floridabar.org
The Florida Bar Journal
December, 2013 Volume 87, No. 10
A Civil Litigator’s Guide to the Privilege Against Self-incrimination in Florida’s State and Federal Courts

by Marisa E. Rosen

Page 8

When Hal Litchford reviewed decisional trends concerning the privilege against compelled self-incrimination in civil litigation for The Florida Bar Journal in 1983,1 the invocation of that privilege was an infrequent concern to many civil practitioners. On the rare occasion the privilege was asserted in civil proceedings, the effect depended on which party asserted it. At the time, the Florida Supreme Court had a precedent of automatic dismissal of the plaintiff’s claims when the plaintiff asserted the privilege.2 Such consequences were often prefaced with the tenet that a litigant was not entitled to both silence and a lawsuit.3

In 1983, the constitutionality of the various consequences of asserting the privilege had been recently examined by the Fifth Circuit Court of Appeals in the landmark decision Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979). In Wehling, the predecessor court to the 11th Circuit Court of Appeals disapproved of the practice of automatic dismissal of complaints or claims upon the plaintiff’s exercise of the privilege, and directed district courts to balance the competing interests of the litigants to determine a “less burdensome” remedy to reduce the prejudice caused by the privilege.4

Thirty years later, the assertion of the privilege against self-incrimination in a civil proceeding has lost its novelty, owing largely to a series of highly publicized lawsuits resulting from infamous corporate scandals.5 Yet, the repercussions of asserting one’s right to silence — legally and culturally — have not diminished greatly. It remains true that invoking the privilege against self-incrimination, or “taking the Fifth,” may subject parties to adverse consequences in a civil action. The appropriate remedies (or sanctions, depending on your party affiliation) for a witness’ invocation of the privilege are influenced, but no longer determined, by whether the witness invoking the privilege is a plaintiff, defendant, or nonparty.

While the basic rationale guiding the courts’ handling of the invocation of the privilege has not changed significantly in the interim, the ramifications of the privilege have continued to emerge and, among jurisdictions, diverge. This article focuses on the current standards and practices with respect to the invocation of the privilege against compelled self-incrimination in civil proceedings in Florida’s state and federal courts, calling attention to where the standards and practices differ and which issues remain unsettled.6

Basic Overview of the Privilege Against Self-incrimination
The Fifth Amendment to the U.S. Constitution and Fla. Const. art. I, §9 prohibit a natural person7 from being compelled in any criminal case to be a witness against himself or herself.8 These constitutional mandates protect one from compelled self-incrimination in “any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory,”9 whether the inculpation arises through oral or written testimony or the production of documents in one’s possession.10 However, the privilege is not absolute.

The privilege against self-incrimination may be properly invoked to justify withholding evidence where the evidence meets three criteria: It is compelled,11 testimonial,12 and incriminating.13 The witness has the obligation to assert the privilege contemporaneously to the questioning.14 One may not assert the privilege unless the testimony solicited is realistically self-incriminating, meaning there must be reasonable grounds to believe that the testimony would furnish a link in the chain of evidence needed to prove a crime.15 It does not shield responses that may lead to civil liability or may be embarrassing.16

A blanket assertion of the privilege against self-incrimination is insufficient to secure the protections of the privilege.17 Rather, the witness must raise a specific objection to a particular question or document.18 Though it is the witness’ burden to claim the privilege, the judge ultimately decides whether the privilege is applicable.19 In doing so, the court must assess the reasonableness of the privilege in relation to each question.20 The failure of the witness to raise particularized objections, or the judge to evaluate the validity of the privilege, to each objectionable inquiry has been a common basis for reversal by Florida’s appellate courts.21

Since the U.S. Supreme Court mandated in 1968 that the assertion of the Fifth Amendment privilege cannot be “costly” or “unduly burdensome,” certain remedies have been recognized as improper punishment for the exercise of one’s constitutional rights.22 For example, the automatic entry of an adverse judgment due solely to the assertion of the privilege has been held impermissibly burdensome and, thus, unconstitutional under Florida and federal law.23 The discretion of courts and legislative bodies to fashion a suitable remedy is constrained by the constitutional guarantees protecting individuals participating in a civil proceeding.

Invocation by the Plaintiff
The privilege against self-incrimination continues to have the most significant ramifications in civil litigation when it is invoked by the party seeking affirmative relief, typically the plaintiff. Yet, the remedies awarded to alleviate the prejudice caused by a plaintiff’s assertion of the privilege are no longer invariably harsher than those awarded for a defendant’s assertion of the privilege.

When the plaintiff invoked the privilege in civil litigation 30 years ago, the defendant’s entitlement to a dismissal of the plaintiff’s claim was “automatic” in Florida and nearly automatic in other jurisdictions.24 Florida courts have since retreated from a practice of automatic dismissal.25 Though it remains an appropriate sanction in some cases, such as when a plaintiff’s claim of privilege prevents otherwise proper discovery, dismissal is no longer routine.26

Courts’ historically harsher treatment of the plaintiff’s assertion of the privilege reflects the well-established “sword and shield” doctrine. The sword and shield doctrine reasons that one who elects to seek judicial relief should not be able to use the privilege as both a sword to obstruct the opposing party’s lawful discovery and a shield to avoid self-incrimination.27 It applies to any person seeking affirmative relief, regardless of party designation.28 While the doctrine justifies the court’s imposition of remedies to counteract prejudice arising from the privilege, it does not require dismissal of the invoking party’s claim.29

The sword and shield doctrine echoes the rationale of earlier courts, namely, that the party seeking affirmative relief is a “voluntary” party to the litigation and the defending party an “involuntary” party. A voluntary party who asserts the privilege to avoid discovery should be subjected to harsher sanctions.30 Portraying the party seeking affirmative relief as a “voluntary” party has fallen out of favor. Even in Wehling, the court questioned the voluntariness logic as it attempted to balance the litigants’ interests to create a remedy less prejudicial than dismissal of the plaintiff’s claims.31 The Wehling court was mindful that, generally, “a party ‘voluntarily’ becomes a plaintiff only because there is no other means of protecting legal rights.”32

In 1990, the 11th Circuit revisited the voluntariness logic in Pervis v. State Farm Fire & Casualty Company, 901 F.2d 944 (11th Cir. 1990), in which the plaintiff exercised his privilege to avoid an examination by his insurer, which was a condition precedent to bringing an action against the insurer under his insurance policy. The court emphasized that the plaintiff “instituted this civil suit” and “chose to seek enforcement of a contract at a time when he had no right of action under that agreement,” and then “chose between complete silence in response to [his insurer’s] request and maintaining an action against [his insurer].”33 The court observed that the Fifth Amendment ultimately preserves the right to choose.34 Because the plaintiff was given a choice, and chose to remain silent during the civil trial, the trial court’s entry of summary judgment against the plaintiff did not amount to a “deprivation of constitutional magnitude.”35

Concerns about penalization based on voluntariness have been replaced with more practical concerns about the resulting prejudices to the parties. For example, automatic dismissal of the invoking party’s claims has been deemed unconstitutional when the statute of limitations would bar refiling the claims after the threat of criminal prosecution ceased.36 In Brancaccio v. Mediplex Management of Port St. Lucie, Inc., 711 So. 2d 1206 (Fla. 4th DCA 1998), the plaintiff argued that the rule of automatic dismissal was developed in divorce cases for which there was no statute of limitations. The plaintiff claimed the trial court’s dismissal of his tort claims due to his invocation of the privilege impermissibly infringed his constitutional rights because by the time the limitations period expired on plaintiff’s criminal charges, the statute of limitations on his civil claims would bar refiling his action.37 The court agreed, finding that the Florida Supreme Court ordered automatic dismissal only in cases when dismissal did not effectively terminate the plaintiff’s cause of action.38 The court granted a stay of the civil lawsuit since the statute of limitations had already run on the claim and there was “a reasonably foreseeable end in sight for the criminal exposure.”39

The 11th Circuit courts use a balancing test to determine when dismissal of a claim may be justified as a consequence of the invocation of the Fifth Amendment.40 Though a dismissal solely attributable to the exercise of the witness’ privilege is constitutionally impermissible, dismissal may be used as a “remedy of last resort” to prevent unfairness to the opposing party.41 Federal courts in this circuit must balance the relative weights of the competing interests of the parties to ensure that the court considers the rights of both parties before it decides whose rights predominate.42

In Eagle Hospital Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298 (11th Cir. 2009), a co-defendant secretly monitored the plaintiff’s privileged attorney-client communications. Once discovered, he invoked the Fifth Amendment to avoid answering questions about whether he retained the ability to monitor the privileged communications. To remedy the misconduct, the trial court struck the defendants’ answer and counterclaims, which led to the entry of a default judgment against the defendants.43 The 11th Circuit found that dismissal of the defendants’ claims was a result of the misconduct, and not the invocation of the Fifth Amendment.44 Even if the dismissal resulted from the invocation, the default was not improper because the co-defendant’s invocation would unduly prejudice the plaintiff, who was obstructed from determining the extent of the illicit monitoring or if it continued.45 In a subsequent case involving similar factual circumstances, the Southern District of Florida recognized that less drastic sanctions should be considered, but concluded that “no lesser sanction than the dismissal of [the invoking party’s] claims and the striking of his defenses would be appropriate.”46

No single remedy is best suited to lessen the prejudice caused to the defendant by the plaintiff’s assertion of the privilege. Remedies utilized against a party whose privilege prevents discovery include striking pleadings or testimony, granting a stay or continuance of the civil proceedings pending conclusion of the threat of criminal exposure, relieving an opposing party of its burden of proof, and dismissing the claims or entering an adverse judgment.47 The appropriate remedy will depend on the facts of each case.

Invocation by the Defendant
The consequences to a defendant who asserts the privilege against self-incrimination have remained largely the same in the last 30 years. Courts have characterized the defendant as an involuntary party to the litigation, forced into a position in which asserting the privilege presents a “Catch 22” situation: Either remain silent and concede civil liability, or speak up and risk offering evidence that may subject one to criminal charges.48 Courts are also aware that the defendant’s right to remain silent may preclude discovery by the plaintiff, and recognize that allowing the defendant to fight the battle of civil litigation armed with an unassailable constitutional shield is just as unfair.

To minimize prejudice to the plaintiff when the defendant invokes the privilege, courts have discretion to fashion an appropriate remedy.49 As with plaintiffs, penalizing the exercise of a constitutional right is prohibited; the entry of an adverse judgment against the defendant solely due to his or her assertion of the Fifth Amendment privilege remains impermissible.50 Courts commonly impose less severe sanctions against defendants who exercise the privilege, such as authorizing an adverse inference against the defendant, ordering a stay of the civil action pending resolution of criminal charges against the defendant, and excluding nonparty witness testimony or nontestimonial evidence.

Florida’s state and federal courts have authorized adverse inferences against civil litigants who refuse to testify on Fifth Amendment grounds as a means to counteract the disadvantage to the party precluded from obtaining evidence as a result of the privilege.51 Although an adverse inference against a defendant who invokes the right to remain silent is strictly prohibited in criminal trials, it is routinely permitted in civil proceedings. However, “there is an exception to this rule when a claimant in the civil case is also a defendant in the criminal case and is forced to choose between waiving the privilege and losing the case on summary judgment.”52

In such cases, a stay of the civil action may be warranted.53 The stay may remain in effect pending the resolution of the invoking party’s criminal proceedings or the running of the statute of limitations for the crime for which the witness may be incriminated.

Florida’s state courts and 11th Circuit courts evaluate the propriety of a stay under differing standards. The 11th Circuit strongly disfavors stays, and, in recent years, will deny a stay so long as the witness’ assertion of the privilege does not compel an adverse judgment against the invoking party.54 Courts in the 11th Circuit “must stay a civil proceeding pending resolution of a related criminal prosecution only when ‘special circumstances’ so require in the ‘interests of justice.’”55 Parallel criminal proceedings do not alone constitute “special circumstances.”56 Even short-term stays are not immune from scrutiny.57

Florida’s state courts have proved more amenable to issuing a stay of the civil action pending the resolution of a party’s related criminal proceedings.58 Florida has not adopted the 11th Circuit’s narrow approach; Florida state courts have opted for a balancing approach that considers the potential prejudice to the parties from a stay.59 One court has even suggested it may depart from the essential requirements of law to deny a stay of a civil case due to pending criminal charges.60 However, no stay will be granted on the basis of a blanket assertion of the privilege,61 or the party’s mere expectation of exercising the privilege.62 Florida courts have also refused to stay a civil suit while a nonparty witness’ criminal proceedings are in progress.63

Invocation by a Nonparty Witness
As with parties, a nonparty witness may not be compelled to answer questions over a valid assertion of the privilege against self-incrimination.64 Similar remedies are available when a nonparty witness’ privilege hinders a party’s lawful discovery. Florida’s state and federal courts are split on authorizing an adverse inference from a nonparty witness’ claim of privilege against the party who indirectly benefits by that witness’ silence.

In the 11th Circuit, adverse inferences are not limited to cases in which a party asserts the privilege. When a nonparty refuses to testify on the basis of the privilege, the court may allow an adverse inference against the implicated party when other evidence supports the adverse inference.65 For instance, in Bernal v. All American Investment Realty, Inc., 479 F. Supp. 2d 1291 (S.D. Fla. 2007), the Southern District of Florida permitted an adverse inference against the defendant when a nonparty witness invoked the privilege as to certain questions concerning the truthfulness of the affidavit he submitted on behalf of the defendant and alleged bribery by the defendant in procuring the affidavit.66 Guided by the U.S. Supreme Court’s declaration that “the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for truth,” the court decided that the adverse inference was proper against the defendant because it was supported by sufficient additional evidence.67

To the contrary, Florida’s decisional law indicates that an adverse inference may not be permitted against a party when the witness invoking the privilege is a nonparty.68 It was ruled an error for the trial court in Insurance Company of State of Pennsylvania v. Estate of Guzman, 421 So. 2d 597, 603-04 (Fla. 4th DCA 1982), to permit a nonparty witness to take the witness stand at trial for the sole purpose of asserting the Fifth Amendment privilege before the jury because of undue weight given to the privilege by the jury. Instead, it would have been proper to exclude the nonparty witness from testifying.69 Since Guzman, Florida’s courts have not directly addressed the propriety of adverse inferences arising from a nonparty witness’ privilege. Given the opportunity, Florida courts may reconsider this precedent and follow the lead of the 11th Circuit and other jurisdictions that have approved adverse inferences against a party due to a nonparty witness’ privilege.70

Remedy Depends on the Materiality of the Privileged Testimony
A recurrent but often unmentioned consideration in determining the repercussions for invoking the privilege is the materiality of the evidence sought. When the effect of the privilege is to avoid responding to questions on matters material to the litigation, courts are more likely to impose sanctions to alleviate the resulting prejudice.

The materiality of a witness’ testimony is the first of three factors that the First Circuit Court of Appeals set forth to determine the effect of an invocation of privilege in Serafino v. Hasbro, Inc., 82 F.3d 515 (1st Cir. 1996). The Serafino factors are 1) the importance and relevance of the information sought; 2) whether there are alternative means to obtain the information; and 3) whether there are remedies less drastic than dismissal.71 The 11th Circuit has considered the second and third factors expressly, while the first factor of materiality has been inconspicuously fundamental to the analysis.72 For example, in Pervis, the 11th Circuit affirmed the dismissal of the plaintiffs’ claims when they asserted a blanket privilege to avoid answering questions concerning the basis of their causes of action.73 The Pervis court indicated that when a party’s assertion of the privilege, even if proper, hinders the opposing party’s ability to discover or prove the material elements of the claim against it, one alternative remedy is to relieve the opposing party of its burden of proof.74 In Eagle Hospital, the 11th Circuit stated that, even if the dismissal of the defendants’ counterclaims had been attributed solely to the co-defendant’s assertion of the privilege, dismissal was not improper because the court carefully balanced the rights of both parties and determined that the severe prejudice caused by the co-defendant’s withholding of evidence warranted the harsh sanction.75 The Middle District of Florida found that an adverse inference was “unnecessary” in light of the “overwhelming” evidence presented against a defendant who had invoked his Fifth Amendment privilege.76 These examples illustrate that the materiality of privileged testimony is not being overlooked by the 11th Circuit courts in determining just remedies.

When the testimony is directly material to the legal issues, practitioners may question the applicability of F.S. §90.510 (2012), the Florida Evidence Code provision authorizing dismissal of a claim for relief or affirmative defense when a civil litigant asserts any privilege as to “a communication necessary to an adverse party.” Though the statute has remained effective and unchanged since 1977, few appellate decisions have discussed it. In the rare decisions involving the privilege against self-incrimination, the courts found the statute inapt because the defendant invoking the privilege raised no claim or affirmative defense.77 Noting that Florida law forbids punishing one who validly asserts the privilege against self-incrimination by entering a default judgment against him or her, these decisions indicate that the statute’s application likely is preempted by the constitutional protections afforded by this privilege.78

Evidentiary Value of the Act of Asserting the Privilege
It is constitutionally guaranteed that Fifth Amendment-protected silence is not substantive evidence of guilt and may not be treated as such.79 Yet, inartful reference to the invocation of the privilege being “an admission” or “evidence” of guilt begs the question: Once a witness has asserted the privilege in a civil case, what is the admissibility and evidentiary value of the act of invocation in proving the claims or defenses of a party?

The assertion of a privilege may arise during the pleadings stage, discovery, pre-trial motions practice, or trial of a case. The majority of remedies (such as stays, striking pleadings, and excluding evidence) will be implemented before the case comes to trial. When it comes to the disposition of the case, however, the role of an adverse inference calls for special attention.

The adverse inference arising from the act of exercising the privilege is neither evidence per se nor a presumption of liability; rather, it is a permissible deduction or conclusion from the lack of evidence proffered.80 The trier of fact may reject an inference or accord it such probative value as it sees fit.81 Once disposition of the case is at hand, often on a motion for summary judgment or at trial, the trier of fact must be mindful that adverse inferences are not a substitute for proof. The 11th Circuit has cautioned, “a dismissal following the assertion of the Fifth Amendment violates the Constitution where the inferences drawn from Fifth-Amendment-protected silence are treated as a substitute for the need for evidence on an ultimate issue of fact.”82 Courts may not allow an adverse inference to supply the sole evidence of an element of a claim for the purpose of approving a judgment against the party subject to the inference.83 When a judge is deciding the case, a summary judgment granted partly in reliance on an adverse inference would not be improper when other evidence corroborates the inference.84 If the case is put before a jury, courts must carefully educate the jury on the proper weight given such inferences.

Adverse inferences are widely accepted as proper when a witness has asserted the right to remain silent. However, when a witness claims the privilege and subsequently waives the privilege and substantively testifies, it is not clear whether a retraction by the witness will preclude an otherwise appropriate adverse inference. In Florida, admission of the prior invocation seems to depend on whether the privilege was invoked during the same case or in a prior proceeding.

When a witness has invoked the privilege in a prior criminal case but later testifies to the same matter in a civil case, constitutional protections under Florida law prohibit introducing the prior invocation to the trier of fact.85 In Walton v. Robert E. Haas Construction Corp., 259 So. 2d 731 (Fla. 3d DCA 1972), the trial court allowed the defendant’s counsel to read the transcript of the plaintiff’s deposition in a separate civil case arising out of the same accident, during which the plaintiff, as a nonparty witness, exercised his privilege against self-incrimination and declined to answer questions regarding the accident. In the plaintiff’s own case, he answered all such questions in his deposition.86 The appellate court, finding that admitting the prior exercise would tend to destroy or chill the exercise of the constitutional privilege and that the invocation was not relevant to any issue being tried in his own case, ruled that the invocation was not proper impeachment because “the fact that one claims a constitutional right may not be said to show a disregard for the truth.”87

In contrast, when a party’s assertion and waiver of the privilege occurred during the same case, no error resulted from introducing the party’s prior assertion to the jury and allowing an adverse inference against that party.88 In Fraser v. Security and Investment Corp., 615 So. 2d 841 (Fla. 4th DCA 1993), a cross-defendant refused to answer questions at an initial deposition, but abandoned his privilege at a later deposition. The Fourth District Court of Appeal upheld the trial court’s refusal to exclude the earlier assertion of privilege, relying on the U.S. Supreme Court’s approval of adverse inferences against a party invoking the privilege.89 Unlike the Walton court, the Fourth District was not persuaded that the act of asserting the privilege was immaterial.90 Meanwhile, though the 11th Circuit appears not to have ruled on the issue in a civil suit, federal courts in general have not been so eager to permit an adverse inference when a witness has withdrawn an asserted privilege and answered all questions in the same proceeding.91

Conclusion
While the Florida and federal constitutions guarantee individuals a privilege against compelled and “costly” self-incrimination in criminal matters, the assertion of that privilege in civil litigation is not without certain costs.92 “The decision to invoke the Fifth Amendment ‘is always affected in some way by the exigencies of a particular situation…. [Parties] cannot be free from conflicting concerns and…must weigh the relative advantages of silence and explanation.’”93 Though parties must consider their own conflicting interests, courts must be mindful of the constitutionally guaranteed protections afforded all individuals participating in civil proceedings. While the court’s analysis in 1983 was influenced largely by which party invoked the privilege, modern courts are instructed to look at the underlying circumstances of the litigants, such as the risk their claims may be statutorily time-barred, and balance the relative prejudice of available remedies to the party invoking the privilege against self-incrimination and the party who must defend in spite of it. Courts continue to have wide discretion to fashion remedies appropriate for a particular case, and recent decisions have demonstrated that courts are now more inclined to consider remedies other than outright dismissal of a party’s claims.


1 Hal K. Litchford, The Privilege Against Self-incrimination in Civil Litigation, 57 Fla. B. J. 139 (1983).

2 See Minor v. Minor, 232 So. 2d 746 (Fla. 2d DCA 1970), aff’d, 240 So. 2d 301 (Fla. 1970); City of St. Petersburg v. Houghton, 362 So. 2d 681 (Fla. 2d DCA 1978).

3 E.g., Wehling v. Columbia Broad. Sys., 608 F.2d 1084 (5th Cir. 1979), aff’d on rehrg., 611 F.2d 1026 (5th Cir. 1980).

4 Wehling, 608 F.2d at 1088.

5 See, e.g., F.D.I.C. v. Fid. & Deposit Co. of Md., 2012 WL 5378922 *1 (M.D. Fla. Oct. 17, 2012) (associate of Ponzi schemer Louis Pearlman asserted privilege); Coquina Invs. v. Rothstein, 2012 WL 4479057 *1 (S.D. Fla. Sept. 28, 2012) (vice president of bank accused of aiding and abetting Scott Rothstein’s Ponzi scheme invoked privilege); In re Enron Corp. Sec., Derivative & ERISA Litig., 490 F. Supp. 2d 784, 825-26 (S.D. Tex. 2007) (former managing director of Merrill Lynch claimed privilege on matters relating to Enron).

6 The repercussions of testimony under a grant of immunity exceeds the scope of this article.

7 Generally, no privilege extends to testimony by or on behalf of a business entity. Vann v. State, 85 So. 2d 133, 137 (Fla. 1956) (citing Wilson v. U.S., 221 U.S. 361 (1911)). See also In re Keller Fin. Servs. of Fla., Inc., 259 B.R. 391 (Bankr. M.D. Fla. 2000) (denying sole shareholder of closely held corporation ability to assert privilege when production of documents is made in his or her capacity as corporate records custodian, even if documents incriminate shareholder personally); State v. Wellington Precious Metals, Inc., 510 So. 2d 902, 906 (Fla. 1987) (sole owner of corporation not entitled to raise privilege to avoid producing documents in response to subpoena directed to corporation).

8 U.S. Const. amend. V; Fla. Const. art. 1 §9. See also Malloy v. Hogan, 378 U.S. 1 (1964) (deeming Fifth Amendment privilege incorporated into 14th Amendment and, thus, applicable against states). “[T]he constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.” U.S. v. Balsys, 525 U.S. at 680 (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 77-78 (1964)).

9 U.S. v. Argomaniz, 925 F.2d 1349, 1352-53 (11th Cir. 1991) (citing Kastigar v. U.S., 406 U.S. 441, 445 (1972)).

10 E.g., State ex rel. Byer v. Willard, 54 So. 2d 179, 182 (Fla. 1951). The privilege against self-incrimination applies to the compelled production of incriminatory documents, to the extent that the production proves the document’s existence, authenticity, or possession by the witness in his or her personal capacity. Id. The privilege does not apply to other nontestimonial physical evidence. St. George v. State, 564 So. 2d 152, 154 (Fla. 5th DCA 1990).

11 E.g., Carson v. Jackson, 466 So. 2d 1188, 1191 (Fla. 4th DCA 1985) (citing Fisher v. U.S., 425 U.S. 391, 401 (1976)).

12 Testimonial evidence includes discovery responses. Cf. Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003) (citing Magid v. Winter, 654 So. 2d 1037, 1038-39 (Fla. 4th DCA 1995)).

13 See Doe v. U.S., 487 U.S. 201, 212 (1988); Argomaniz, 925 F.2d at 1352.

14 Hoffman v. U.S., 341 U.S. 479, 486 (1951). When one fails to assert the privilege, testimony may not be considered compelled, Carson, 466 So. 2d at 1191, and the privilege may be irrevocably waived as to the subject of the testimony, Jones v. Stoutenburgh, 91 So. 2d 299, 303 (Fla. 1956) (citation omitted).

15 E.g., Hoffman, 341 U.S. at 486; O’Neal v. Sun Bank, 754 So. 2d 170, 171-72 (Fla. 5th DCA 2000); see also U.S. v. Reis, 765 F.2d 1094, 1096 (11th Cir. 1985) (stating risk of prosecution must be “more than mere speculative, generalized allegations” of criminal prosecution). Subsequent prosecution of the witness in another court within the U.S. will support invocation of the privilege, see State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954), but not the threat of criminal prosecution by foreign governments, see U.S. v. Balsys, 525 U.S. at 699.

16 Cf. Hoffman, 341 U.S. at 486; O’Neal, 754 So. 2d at 171-72.

17 E.g., Anglada v. Sprague, 822 F.2d 1035, 1037 (11th Cir. 1986); Urquiza v. Kendall Healthcare Group, Ltd., 994 So. 2d 476, 477 (Fla. 3d DCA 2008).

18 E.g., U.S. v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir. 1994); Urquiza, 994 So. 2d at 477; Fischer v. E.F. Hutton & Co., Inc., 463 So. 2d 289, 291 (Fla. 2d DCA 1984). One court distinguished between unacceptable blanket assertions of privilege and “efficient” objections, finding that a witness who raised one objection to multiple requests for privileged communications acted properly because each request implicated specific inculpatory concerns. Sallah v. Worldwide Clearing LLC, 855 F. Supp. 2d 1364, 1371 (S.D. Fla. 2012).

19 Hoffman, 341 U.S. at 486; Eisenstein v. Citizens & So. Nat’l Bank of Fla., 561 So. 2d 1203, 1203 (Fla. 4th DCA 1990).

20 See DeLeo v. Wachovia Bank, N.A., 946 So. 2d 626, 628-29 (Fla. 2d DCA 2007) (quoting Novak v. Snieda, 659 So. 2d 1138, 1141 (Fla. 2d DCA 1995)).

21 See, e.g., DeLeo, 946 So. 2d at 628-29; Magid, 654 So. 2d at 1039; J.R. Brooks & Son Inc. v. Donovan, 592 So. 2d 795, 796 (Fla. 3d DCA 1992).

22 Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1304 (11th Cir. 2009) (citing Wehling, 608 F.2d at 1087).

23 Id. (citing Wehling, 608 F.2d at 1087; Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976)); Village Inn Rest. v. Aridi, 543 So. 2d 778, 782 (Fla. 1st DCA 1989).

24 See Litchford, The Privilege Against Self-incrimination in Civil Litigation, 57 Fla. B. J. at 143 (1983).

25 Village Inn Rest., 543 So. 2d at 782.

26 Eatmon v. Bonagura, 590 So. 2d 4 (Fla. 1st DCA 1991).

27 Arango v. U.S. Dep’t of Treasury, 115 F.3d 922, 926 (11th Cir. 1997) (quoting U.S. v. Rylander, 460 U.S. 752, 758-59 (1983)); Fassi v. Am. Fire & Cas. Co., 700 So. 2d 51, 52 (Fla. 5th DCA 1997); Rollins Burdick Hunter of N.Y., Inc. v. Euroclassics Ltd., Inc., 502 So. 2d 959, 962 (Fla. 3d DCA 1987) (disapproving denial of motion to compel discovery when plaintiff refused to answer questions necessary to prove affirmative defenses and thereby “effectively deprived [defendant] of the opportunity to defend itself”).

28 DePalma v. DePalma, 538 So. 2d 1290, 1291 (Fla. 4th DCA 1989).

29 See Childs v. Solomon, 615 So. 2d 865, 866 (Fla. 3d DCA 1993); see also Wehling, 608 F.2d at 1088 (“[A] civil plaintiff has no absolute right to both his silence and his lawsuit. Neither, however, does the civil defendant have an absolute right to have the action dismissed anytime a plaintiff invokes his constitutional privilege.”).

30 See Minor, 232 So. 2d at 747 (emphasis in original) (“Appellant’s choice in this case is not, involuntarily, one between two totally disadvantageous alternatives . . . but rather, voluntarily, one between two alternatives one of which can be employed to some advantage.”).

31 Wehling, 608 F.2d at 1089 n.10.

32 Id.

33 Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944, 947-48 (11th Cir. 1990) (emphasis in original).

34 Id. at 947.

35 Id. at 948.

36 See Brancaccio v. Mediplex Mgmt. of Port St. Lucie, Inc., 711 So. 2d 1206 (Fla. 4th DCA 1998).

37 Id. at 1211.

38 Id.

39 Id. at 1211-12.

40 See Eagle Hosp., 561 F.3d at 1305.

41 Id. (citing Wehling, 608 F.2d at 1087 n.6).

42 Id. (quoting Wehling, 608 F.2d at 1088).

43 Id. at 1303.

44 Id. at 1305.

45 Id.

46 Leor Exploration & Prod. LLC v. Aguiar, 2010 WL 2605087 *20 (S.D. Fla. June 29, 2010) (quoting Eagle Hosp., 561 F.3d at 1306).

47 See, e.g., Eagle Hosp., 561 F.3d at 1305 (striking pleadings of party seeking relief); Brancaccio, 711 So. 2d at 1211-12 (advising trial court that a stay may be appropriate); Pervis, 901 F.2d at 948 (granting summary judgment against invoking party); Roberts v. Jardine, 358 So. 2d 588, 589 (Fla. 2d DCA 1978) (suggesting trial court may strike testimony, but not enter default judgment, against defendant whose claim of privilege prevents relevant discovery).

48 See Minor, 232 So. 2d at 747.

49 Fernandez v. Blue Sky/Venecia Food Corp., 40 So. 3d 779, 781 (Fla. 1st DCA 2010) (quoting Eatmon, 590 So. 2d at 4).

50 See Brancaccio, 711 So. 2d at 1210 (citing Wehling, 608 F.2d at 1088); see also Daniels v. Cochran, 654 So. 2d 609, 611 (Fla. 4th DCA 1995) (reversing default order of civil forfeiture against claimant who failed to respond to discovery on basis of Fifth Amendment privilege).

51 See, e.g., Eagle Hosp., 561 F.3d at 1303; Arango, 115 F.3d at 926; Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. 3d DCA 2001) (dicta).

52 U.S. v. Two Parcels of Real Prop. Located in Russell County, Ala., 92 F.3d 1123, 1129 (11th Cir. 1996) (citations omitted) (finding exception inapplicable when claimants refusing to testify were not defendants in a criminal case).

53 See Shell Oil Co. v. Altina Assocs., Inc., 866 F. Supp. 536, 540-41 (M.D. Fla. 1994) (denying stay because defendant would not be subject to summary disposition due to adverse inference).

54 See, e.g., Court-Appointed Receiver of Lancer Mgmt. Group LLC v. Lauer (S.D. Fla. 2009) (recognizing 11th Circuit’s standard for issuing stays is narrower, as it requires invoking party to “face[] certain loss of the civil proceeding on summary judgment if the civil proceeding were to continue”); In re Fin. Federated Title & Trust, Inc., 252 B.R. 834, 837 (Bankr. S.D. La. 2000) (explaining standard in 11th Circuit is “more narrow and less subjective” than other jurisdictions and even a “severe disadvantage” to defendant would not afford stay).

55 U.S. v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir. 1994) (citing U.S. v. Kordel, 397 U.S. 1, 11-12 & n.27 (1970)).

56 Global Aerospace, Inc. v. Platinum Jet Mgmt., LLC, 2009 WL 2589116 *2 (S.D. Fla. 2009) (quoting In re Blankenship, 2009 WL 1607909 *4 (Bankr. N.D. Ala. 2009)).

57 See A.B. ex rel. Baez v. Seminole County School Bd., 2005 WL 2614622 *2 (M.D. Fla. 2005) (denying 60-day stay because it was not clear that criminal case would be resolved at that time).

58 See, e.g., Childs, 615 So. 2d at 866 (citing Miami Nat’l Bank v. Greenfield, 488 So. 2d 559, 561 (Fla. 3d DCA 1986)) (suggesting trial court stay action as a result of exercise of privilege during counterclaimant’s deposition when statute of limitations would bar refiling claim).

59 See Brancaccio, 711 So. 2d at 1211-12.

60 McCreery v. Fernandez, 882 So. 2d 498, 498 (Fla. 4th DCA 2004).

61 Urquiza, 994 So. 2d at 478.

62 Eller Media Co. v. Serrano, 761 So. 2d 464, 466 (Fla. 3d DCA 2000).

63 See Kerben v. Intercontinental Bank, 573 So. 2d 976, 978 (Fla. 5th DCA 1991) (quashing trial court’s indefinite order of abatement due to nonparty witness’ “unavailability” due to privilege).

64 Pillsbury Co. v. Conboy, 459 U.S. 248, 263-64 (1983).

65 E.g., Coquina Invs., 2012 WL 4479057 at *10 (approving explanation of adverse inference’s weight to jury); Bernal v. All Am. Inv. Realty, Inc., 479 F. Supp. 2d 1291, 1337 (S.D. Fla. 2007).

66 Bernal, 479 F. Supp. 2d at 1337.

67 Id. (quoting Libutti v. U.S., 107 F.3d 110, 125 (2d Cir. 1997)); accord Cole v. Am. Capital Partners Ltd., Inc., 2008 WL 2986444 *5 (S.D. Fla. 2008) (citing RAD Servs., Inc. v. Aetna Cas. & Sur. Co., 808 F.2d 271, 275 (3d Cir. 1986)) (drawing adverse inference from invocation by individual defendants against corporate defendants because individuals were acting in the scope of their employment when they engaged in the conduct they refused to testify about).

68 See Ins. Co. of State of Pa. v. Estate of Guzman, 421 So. 2d 597, 603-04 (Fla. 4th DCA 1982).

69 See id. at 603. Cf. U.S. Commodity Futures Trading Comm’n v. Capital Blu Mgmt., LLC, 2011 WL 52994 (M.D. Fla. Jan. 7, 2011) (refusing to exclude nonparty witness expected to invoke privilege from taking stand in front of jury).

70 See, e.g., LiButti, 107 F.3d 110, 123 (2d Cir. 1997) (listing nonexclusive factors for deciding to allow adverse inferences against a party due to invocation of privilege by a nonparty); F.D.I.C. v. Fid. & Deposit Co. of Md., 45 F.3d 969 (5th Cir. 1995); Cerro Gordo Charity v. Fireman’s Fund Am. Life Ins. Co., 819 F.2d 1471 (8th Cir. 1987); RAD Servs., Inc., 808 F.2d 271.

71 Serafino v. Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996) (affirming dismissal of claims due to plaintiff’s refusal to answer questions “[going] to the heart of” defenses and damages).

72 But see U.S. Commodity Futures Trading Comm’n, 2001 WL 52994 (finding probative value of invocation not outweighed by possible prejudice under Federal Rule of Evidence 403).

73 Pervis, 901 F.2d 944 at 946-947.

74 Eagle Hosp., 561 F.2d at 1305.

75 Id. at 1305.

76 S.E.C. v. Kirkland, 521 F. Supp. 2d 1281, 1286 n.1 (M.D. Fla. 2007).

77 See In re Keller, 259 B.R. at 406-07; In re Forfeiture of $13,000.00 U.S. Currency, 522 So. 2d 408, 409-10 (Fla. 5th DCA 1988).

78 In re Keller, 259 B.R. at 407 (quoting In re Forfeiture, 522 So. 2d at 410).

79 See Griffin v. Cal., 380 U.S. 609, 614-15 (1968).

80 Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006) (citing Little v. Publix Supermarkets, Inc., 234 So. 2d 132, 133-34 (Fla. 4th DCA 1970)).

81 Id.

82 Eagle Hosp., 561 F.3d at 1304 (citing Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991)).

83 Coquina Invs., 2012 WL 4479057 at *10 (citing LaSalle Bank Lake View v. Sequban, 54 F.3d 387, 391 (7th Cir. 1995) (claiming privilege did not admit or deny facts to enable summary judgment)). Cf. Zabrani v. Riveron, 495 So. 2d 1195, 1199 (Fla. 3d DCA 1986) (“The fact that [claimant’s] refusal to testify or otherwise plead leaves him without a defense to the motion for summary judgment does not mean that his privilege against compelled self-incrimination is violated.”).

84 See, e.g., Two Parcels of Real Prop. Located in Russell County, Ala., 92 F.3d at 1129.

85 Walton v. Robert E. Haas Const. Corp., 259 So. 2d 731, 734 (Fla. 3d DCA 1972), cert. denied, 265 So. 2d 48 (Fla. 1972); see also Clark v. State, 68 Fla. 433 (Fla. 1914).

86 Id. at 733.

87 Id. at 734.

88 See Fraser v. Security & Inv. Corp., 615 So. 2d 841, 842 (Fla. 4th DCA 1993).

89 Id. at 842.

90 Id. (citation omitted) (“’Silence is often evidence of the most persuasive character.’”).

91 E.g., Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1464-65 (5th Cir. 1992); Farace v. Independent Fire Ins. Co., 699 F.2d 204, 210-11 (5th Cir. 1983).

92 Eagle Hosp., 561 F.2d at 1304 (citing U.S. v. White, 589 F.2d 1283, 1287 (5th Cir. 1979)).

93 Arango, 115 F.3d at 927 (quoting White, 589 F.2d at 1287).


Marisa E. Rosen, an associate in Baker Donelson’s Orlando office, concentrates her practice in business litigation in state and federal courts throughout Florida. She received her B.A. from Duke University and her J.D. from the University of Florida. Ms. Rosen gratefully acknowledges the contributions of Hal K. Litchford, a shareholder at Baker Donelson, to this article.

[Revised: 11-26-2013]