Hernandez et al v. Hankook Tire America Corporation et al

Filing 76

MEMORANDUM OPINION AND ORDER re #69 MOTION to Compel Discovery - For the reasons given within, the court ORDERS Hernandez to answer deposition questions about her immigration status and Garcia's past immigration status unless she refuses to answer pursuant to her privilege against self-incrimination or the presentation of a motion under FED R. CIV. P. 30(d)(3), if warranted. The court DENIES Hankooks motion to compel plaintiffs to answer Hankooks Fourth Set of Discovery Requests because they have asserted their privilege against self-incrimination, and the information sought is irrelevant and is not reasonably calculated to lead to admissible evidence. Signed by Judge William M Acker, Jr on 7/3/14. (SAC )

FILED
2014 Jul-03 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GREGORIA HERNANDEZ HERNANDEZ, }
et al.,
}
}
Plaintiffs,
}
}
}
HANKOOK TIRE AMERICA
}
CORPORATION, et al.,
}
}
Defendants.
}

Case No. 2:12-CV-03618-WMA

MEMORANDUM OPINION AND ORDER
Before the court is the motion to compel discovery filed by
defendants

Hankook

Tire

America

Corporation

Company, Ltd. (collectively “Hankook”).

and

Hankook

Tire

This products liability

action involves the blown tire and subsequent crash of a Ford
Explorer on I-65.

The driver, Valente Santiago Garcia (“Garcia”),

died in the crash, and the passenger, plaintiff Gregoria Hernandez
Hernandez (“Hernandez”), sustained personal injuries.

Hernandez

and plaintiff Paloma Santiago Hernandez, as administrator ad litem
for Garcia’s estate, instituted this action seeking compensatory
and punitive damages.

Through this motion, Hankook seeks an order

(1) compelling Hernandez to answer deposition questions about her
immigration status and Garcia’s past immigration status, and (2)
compelling plaintiffs to provide complete answers to Hankook’s
Fourth Set of Discovery Requests, which asks each plaintiff to
identify every name and social security number used by herself and
by Garcia.
1

For

the

reasons

set

forth

below,

the

court

will

grant

Hankook’s motion in part. The court will order Hernandez to answer
deposition questions about her immigration status and Garcia’s past
immigration status, but in order to preserve a privilege, including
her privilege against self-incrimination, she may refuse to answer
or may make a motion under FED R. CIV. P. 30(d)(3).

The court will

not compel plaintiffs to provide complete answers to Hankook’s
Fourth Set of Discovery Requests because plaintiffs have asserted
their privilege against self-incrimination, a constitutional right
not waived by missing a discovery deadline by seven weeks, and
because the information sought has such tenuous relevance that it
is not reasonably calculated to lead to admissible evidence.
DISCUSSION
Hankook’s motion asks this court to intervene with respect to
their deposition of Hernandez and their Fourth Set of Discovery
Requests

sent

to

both

plaintiffs.

Plaintiffs

counter

that

Hankook’s deposition questions regarding immigration status were
asked in bad faith, and that immigration status is irrelevant.
They further state that plaintiffs assert their privilege against
self-incrimination, presumably with respect to both the deposition
questions and the Fourth Set of Discovery Requests. The court will
address each discovery issue in turn.
I.

Deposition of Hernandez
At Hernandez’s deposition, Hankook asked her two questions

regarding her immigration status, once repeating the question for
2

the translator. Doc. 69-4 at 22-25.

Her counsel objected to the

form and relevance, stated that there may be a component of the
privilege against self-incrimination, noted that they may assert
other

grounds,

questions. Id.

and

instructed

Hernandez

to

not

answer

the

Hankook then asked about Garcia’s past immigration

status, and Hernandez’s counsel objected on the same grounds and
instructed Hernandez to not answer. Id. at 26-27. Hankook now asks
the court to compel Hernandez to answer their deposition questions
regarding her immigration status and Garcia’s past immigration
status.

Plaintiffs contend that Hernandez should not have to

answer because (A) Hankook asked the questions in bad faith; (B)
immigration status is irrelevant; (C) and Hernandez asserts her
privilege against self-incrimination.
A.

Bad Faith

Plaintiffs claim that Hankook asked Hernandez the questions on
immigration status in bad faith in an attempt to scare or harass
plaintiffs, and ask the court to prohibit Hankook from continuing
to do so pursuant to Rule 30(d)(3)(A). The federal rules recognize
a motion under Rule 30(d)(3) as a valid reason for instructing a
deponent to not answer a question. FED R. CIV. P. 30(c)(2).

Rule

30(d)(3)(A) provides that, “[a]t any time during a deposition, the
deponent or a party may move to terminate or limit it on the ground
that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or
party.” FED R. CIV. P. 30(d)(3)(A) (emphasis added).
3

However,

plaintiffs did not present a motion under Rule 30(d)(3) during the
deposition and, in fact, never filed such a motion with this court.
See Redwood v. Dobson, 476 F.3d 462, 467-68 (7th Cir. 2007) (Rule
30 “specifies how harassment is to be handled.

Counsel for the

witness may halt the deposition and apply for a protective order
... but must not instruct the witness to remain silent.”). Although
plaintiffs may present a motion under Rule 30(d)(3) in the future,
if

warranted,

the

court

cannot

consider

such

a

motion

as

justification for Hernandez’s refusal to answer Hankook’s questions
at her past deposition.

The court will not prospectively limit

Hankook’s questions based on the excerpts from the deposition
transcript, which reveal only a civil exchange between counsel and
apparently polite, non-harassing questions. See Doc. 69-4.
B.

Relevance

Plaintiffs contend that Hernandez should not have to answer
deposition questions regarding her immigration status and Garcia’s
past immigration status because such questions are irrelevant to
the material issues and are not reasonably calculated to lead to
admissible evidence.
of

discovery

in

Plaintiffs quote the standard for the scope

Rule

26(b)(1),

but

Rule

30(c)(2)

governs

depositions. Rule 30(c)(2) specifies that “[a] person may instruct
a

deponent

not

to

answer

only

when

necessary

to

preserve

a

privilege, to enforce a limitation ordered by the court, or to
present a motion under Rule 30(d)(3).” FED R. CIV. P. 30(c)(2)

4

(emphasis added).

Relevance does not fall under any of these

categories, unless the questions rise to the level of bad faith
warranting a motion under Rule 30(d)(3). See Redwood v. Dobson, 476
F.3d 462, 467-68 (7th Cir. 2007); Parson & Whittemore Enters. Corp.
v. Cello Energy LLC, 2010 WL 1994857, at *3 (S.D. Ala. Mar. 29,
2010).

In short, lack of relevance does not give Hernandez

justification

under

Rule

30(c)(2)

to

not

answer

Hankook’s

deposition questions.
Because the parties have contested discovery on immigration
status only in the context of Hernandez’s deposition, and lack of
relevance does not allow Hernandez to refuse to answer deposition
questions, the court need not address the relevance of either
Hernandez’s or Garcia’s immigration status at this time.
C.

Fifth Amendment

At her deposition, Hernandez raised her Fifth Amendment right
against self-incrimination as a possible basis for refusing to
answer Hankook’s questions regarding immigration status.
since asserted her right more clearly.1 Doc. 71 at 4-5.
Amendment

right

against

self-incrimination

1

She has
The Fifth

qualifies

as

a

The response brief states: “Hankook’s repeated accusation that the
Plaintiffs are illegal or that their conduct is illegal is threatening.
Furthermore, Hankook’s suggestion that the Plaintiffs have used false
identities or social security numbers amounts to an accusation that they have
committed a crime. In response to such allegations and related questions, the
Plaintiffs do invoke their Fifth Amendment right against self-incrimination.”
Doc. 71 at 4-5. Plaintiffs’ assertion of their Fifth Amendment right appears
to apply to both topics of Hankook’s motion: the “accusation” that “Plaintiffs
are illegal” refers to the immigration status deposition questions and the
“accusation” that they “used false identities or social security numbers”
refers to the Fourth Set of Discovery Requests.

5

“privilege” under Rule 30 such that the deponent can refuse to
answer questions. See Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57
(1983) (absent a grant of immunity).

However, the privilege

against self-incrimination is “purely personal” and cannot be
asserted on another’s behalf, even by a person’s successors. United
States v. Ayers, 615 F.2d 658, 660 (5th Cir. 1980).2

Thus,

Hernandez’s privilege against self-incrimination does not extend to
any questions about Garcia’s immigration status, except to the
extent that she also would incriminate herself by answering.
Hankook

contends

that

Hernandez

has

not

identified

how

answering questions about her or Garcia’s immigration status could
subject her to criminal liability.

The Eleventh Circuit has

acknowledged that there are “‘some crimes related to immigration
violations’” even if “immigration law is more properly classified
as

regulatory

rather

than

criminal.”

United

States

v.

Garcia-Cordero, 610 F.3d 613, 618 (11th Cir. 2010) (citations
omitted).

Crimes plausibly related to immigration status include

unauthorized entry into the United States, 8 U.S.C. § 1325, falsely
representing onself as a citizen of the United States, 18 U.S.C. §
911, and using false identification documents, 18 U.S.C. § 1028.
Although Hankook cites one case that rejected a Fifth Amendment
claim for failing to identify potential criminal liability from

2

All cases decided by the Fifth Circuit on or before September 30,
1981, are binding precedent in the Eleventh Circuit. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

6

discussing immigration status, see Davila v. Grimes, 2010 WL
1737121, *2-3 (S.D. Ohio Apr. 29, 2010), Hankook elsewhere cites a
case that reached the opposite conclusion and allowed a Fifth
Amendment claim because of the potential criminal liability from
discussing immigration status, see Bermudez v. Karoline's Int'l
Rest. Bakery Corp., 2013 WL 6146083, at *5 (E.D.N.Y. Nov. 21,
2013). Immigration enforcement may not frequently involve criminal
liability in practice, but the Fifth Amendment does not require
Hernandez to play the odds if there is “even a remote risk” that
she will be prosecuted and her answers “might tend to reveal” that
she committed a crime. In re Corrugated Container Anti-Trust
Litig., 620 F.2d 1086, 1091 (5th Cir. 1980).
Accordingly, the court will deny Hankook’s motion to compel to
the extent that Hernandez asserts her privilege against selfincrimination, but will grant Hankook’s motion to compel to the
extent that Hernandez can answer questions about her or Garcia’s
immigration status without incriminating herself.
Hankook urges the court to make an adverse inference from
Hernandez’s invocation of her Fifth Amendment privilege against
self-incrimination.

The Eleventh Circuit has acknowledged that

district courts may allow such adverse inferences in civil cases.
See, e.g., United States v. A Single Family Residence & Real Prop.
Located at 900 Rio Vista Blvd., Fort Lauderdale, 803 F.2d 625, 630
n.4 (11th Cir. 1986) (citing Baxter v. Palmigiano, 425 U.S. 308,

7

318

(1976)).

However,

ruling

on

Hankook’s

proposed

inference at this point in discovery is premature.

adverse

The court will

address whether Hernandez’s immigration status is probative, and
whether the proposed adverse inference is appropriate as a pretrial matter.
II.

Fourth Set of Discovery Requests
Hankook

served

its

Fourth

Set

of

Discovery

Requests

on

plaintiffs on March 28, 2014, seeking all names and social security
numbers used by plaintiffs and by Garcia.

Hankook states that its

inquiry was prompted by bank records suggesting that Hernandez and
Garcia used stolen social security numbers to obtain a loan to
purchase the subject vehicle and tire.

Plaintiffs had until April

27, 2014, to respond or object to the Fourth Set of Discovery
Requests pursuant to this court’s Scheduling Order. Doc. 33.

Rule

33(B)(4) provides that if a plaintiff fails to timely object on any
ground, stated with specificity, the objection is waived unless the
court excuses the failure for good cause. FED R. CIV. P. 33(B)(4).
Plaintiffs responded on May 21, 2014, and did not invoke the Fifth
Amendment

privilege

against

self-incrimination.

Plaintiffs

asserted the Fifth Amendment for the first time with respect to the
Fourth Set of Discovery Requests in their response brief filed on
June 18, 2014. Doc. 71 at 4-5.
waived the

Fifth

Hankook argues that plaintiffs

Amendment objection

by

not

stating

it

with

specificity in a timely response, and asks the court to compel
plaintiffs to provide complete answers.
8

The court will deny

Hankook’s request because (A) plaintiffs have not waived their
Fifth Amendment privilege against self-incrimination by untimely
assertion, and (B) the information sought in the Fourth Set of
Discovery Requests has such speculative probative value that it is
irrelevant.
A.

Fifth Amendment

This court does not accept as self-evident that plaintiffs
have

waived

their

constitutional

privilege

against

self-

incrimination solely for missing the discovery deadlines set forth
in the scheduling order and Rule 33.

Many courts are reluctant to

find that claims of privilege have been waived solely because they
have been untimely asserted. See Ayers v. Cont'l Cas. Co., 240
F.R.D. 216, 222-23 (N.D. W.Va. 2007) (discussing the split of
authority).

As

for

the

privilege

against

self-incrimination

specifically, while the Eleventh Circuit has not addressed “this
sensitive

question,”

other

courts

have

found

that

the

constitutional grounding of this privilege makes its waiver by
untimely assertion particularly problematic. See United States v.
A

&

P Arora,

Ltd.,

46

F.3d

1152,

at

*1-2

(10th

Cir.

1995)

(discussing courts’ differing treatments); Maness v. Meyers, 419
U.S. 449, 461 n.8 (1975) ("The constitutional basis for this
privilege distinguishes it from other privileges...”).

Circuits

that have found waiver by untimely assertion have done so in more
compelling circumstances. See, e.g., Davis v. Fendler, 650 F.2d

9

1154, 1160 (9th Cir. 1981).

The Ninth Circuit, for example, found

that a defendant had waived his Fifth Amendment privilege by
failing to specifically object to the interrogatories, but that
defendant waited fifteen months before asserting the privilege. Id.
In the present case, plaintiffs asserted their Fifth Amendment
privilege

seven

weeks

after

the

discovery

deadline.

While

accepting the possibility of such a waiver, Manness, 419 U.S. at
466,

this

court

requires

a

more

compelling

scenario

than

plaintiffs’ to find a waiver by untimely assertion of the privilege
against self-incrimination. Accordingly, the court will not compel
plaintiffs to provide complete answers to Hankook’s Fourth Set of
Discovery Requests to the extent that plaintiffs justifiably assert
their privilege against self-incrimination.
B.

Relevance

Hankook contends that the relevance of the information sought
in

the

Fourth

Set

of

Discovery

Requests

weighs

compelling plaintiffs to provide complete answers.

in

favor

of

The scope of

discovery is governed by Rule 26(b)(1):
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or
defense... For good cause, the court may order discovery
of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible
at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible
evidence.
FED R. CIV. P. 26(b)(1). Hankook argues that the information sought
in the Fourth Set of Discovery Requests is relevant to witness
10

credibility and because Hankook wants to run additional background
checks and seek third party documents related to any additional
identities used.
Neither argument persuades the court.

Hankook already has

evidence for witness credibility purposes that Hernandez used
another person’s social security number to obtain the vehicle loan,
assuming without deciding that such evidence will be admitted at
trial.

Garcia, a decedent, will not appear as a witness.

As for

additional background checks, the prospect that conduct by Garcia
or Hernandez under another identity could shed light on this
products liability case is tenuous indeed.

Presumably the conduct

would involve another vehicle or tire, but how that conduct could
connect to this case escapes the court, and Hankook did not argue
such a connection in its brief. See Doc. 69 at 9.

Even more

tenuous is the relevance of any names and social security numbers
used by plaintiff Paloma Santiago Hernandez, Garcia’s daughter and
the administrator ad litem for his estate, given that she did not
obtain the vehicle loan and was not in present during the crash.
Therefore, the court will not compel plaintiffs to provide
complete answers to the Fourth Set of Discovery Requests because
the information sought has tenuous relevance and is not reasonably
calculated to lead to admissible evidence.

This finding applies

equally to the interrogatories concerning Garcia, which plaintiffs
could not necessarily have refused to answer pursuant to their
privilege against self-incrimination.
11

CONCLUSION
For the reasons given above, the court ORDERS Hernandez to
answer

deposition

questions

about

her

immigration

status

and

Garcia’s past immigration status unless she refuses to answer
pursuant

to

presentation
warranted.

her
of

privilege
a

motion

against
under

FED

self-incrimination
R.

CIV.

P.

or

30(d)(3),

the
if

The court DENIES Hankook’s motion to compel plaintiffs

to answer Hankook’s Fourth Set of Discovery Requests because they
have asserted their privilege against self-incrimination, and the
information sought is irrelevant and is not reasonably calculated
to lead to admissible evidence.

DONE this 3rd day of July, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

12