Monday, June 23, 2003

What to do when plaintiff in a civil case pleads the Fifth Amendment?

It has happened to me a time or two that plaintiffs try to avoid discovery of embarrassing if not incriminating evidence about themselves by taking the Fifth Amendment in depositions. In McMullen v. Bay Ship Management, the Third Circuit dealt with a case in which the plaintiff was actually indicted while the civil case was pending. The court of appeals concluded that outright dismissal of the plaintiff's case was too severe a sanction against the plaintiff, including this memorable paragraph which caught the eye of How Appealing:

"The only virtue in dismissing the case here was clearing the court’s docket. Although promptness in judicial administration is highly desirable, delay may sometimes be necessary to the mission of doing justice. We are all too often reminded that 'justice delayed is justice denied.' But, it is equally true that in some situations 'justice rushed is justice crushed.'"

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