Judge: Mark H. Epstein, Case: 20SMCV00216, Date: 2023-11-13 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 20SMCV00216    Hearing Date: April 12, 2024    Dept: I

This is a motion to compel further responses and production.  The matter is CONTINUED to allow defendant to file the opposition that was apparently served on the moving party.  The court believes there is such an opposition because there is a reply to it, and the reply refers to the opposition papers.  However, they were not filed in court so the court has not reviewed them.  Given that there has been a change in counsel, the court believes that the better approach is to allow the opposition to be filed—but ONLY the opposition as it was served and without amendment or change—and then to reconvene the hearing.

A few preliminary thoughts.  First, while the court views it as a sharp-ish practice, defense counsel’s suggestion that the objections would be withdrawn or not relied upon and that actual responses would be given, only to have the privilege moved to the response without any actual substance, is not sanctionable or per se improper under the particular circumstances here, although, as stated, it was a sharp practice.  The more forthright approach would have been for the defense to acknowledge that the invocation of the right was going to be moved, not to suggest that it would provide substantive and informative responses.  The court agrees that the right against self-incrimination is not a proper objection; it is a potentially proper response.  In other words, the request is not “objectionable” by virtue of the privilege, to the contrary the request is entirely proper.  If the right attaches, it should be raised not in an objection signed by counsel but rather in the verified response, as it eventually was.  Thus, the court is not happy about the ploy, but the court will not impose sanctions for it.

More problematic for the defense, though, is that enough information must be given so as to establish that the privilege is properly invoked.  At least in a case like this—where there is no active criminal investigation—it is not enough just to say one invokes the right against self-incrimination.  There has to be at least some logical showing that the response would, in fact, potentially be incriminating.  The hurdle is not an especially high one, but it is not immaterial.  There was no attempt to make any such showing here unless it was in the opposition papers.  And to be clear, the privilege is testimonial only.  Document production is not of necessity subject to the right against self-incrimination because the documents themselves are not subject to the privilege; but the actual responses might be.  That is because the responses—which are testimonial—could give rise to a problem, such as an admission that records were destroyed or even an admission (express or implied) that the documents being produced are authentic.  But it is up to Rechnitz to provide some kind of link to what the responses would be (not the underlying documents) and the right against self-incrimination.  That could be in the form of a log or some other form, but there must be something other than a blanket and unsupported statement.  To illustrate the point, a check is not itself testimonial.  It is not privileged and it is not immune from discovery.  But a discovery response in which the defendant must admit that the check is responsive to a particular request might be testimonial in nature and thus subject to the right.  There are some cases where the issue is self-evident.  Were this a criminal proceeding, Rechnitz would need to do no more (or very little more) than assert the right to invoke it.  And similarly, were there an active criminal investigation into the matters at issue in the discovery, it could be that it is intuitively obvious that the verified responses could be incriminating.  That is not the case here, however,  The criminal investigation is over—Rechnitz was convicted.  To the court’s knowledge, there are no ongoing criminal investigations anywhere.  Of course, an active criminal investigation is not a prerequisite to invoking the right.  Even if a defendant were not under investigation if a discovery request called for a response that essentially admitted guilt to a crime, the right against self-incrimination could be invoked.  But it would be inherent on the person invoking the right to explain the link between the response and potential self-incrimination. 

Thus, the court agrees with plaintiff that Rechnitz cannot simply assert the privilege and refuse to participate without more.  But if Rechnitz can establish that responding to the discovery could be testimonial self-incrimination, then the right would attach.  That is easier to do with a lawyer, but given that Rechnitz no longer has one, he will have to do so without.  The court will need to see the opposition to see whether Rechnitz (who the court believes had a lawyer when the opposition was filed) has met his burden.

The court well understands that this could (depending on whether Rechnitz can establish the privilege) hamper the plaintiff.  But plaintiff is not without tools.  Plaintiff can subpoena financial institutions and other organizations for underlying documents, and the court would be reluctant to limit such discovery given the potential invocation of the right against self-incrimination.  That is cumbersome, but might be necessary; the right itself, once established, is well-nigh inviolable. 

The court will see the opposition and set a new hearing date and go from there.

The standing objection is OVERRULED.