Helena Chemical Company et al v. Skinner et al

Filing 131

ORDER denying pltf's motions to compel 121 123 . Signed by Judge Susan Webber Wright on 9/5/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION

HELENA CHEMICAL COMPANY and
FEDERAL INSURANCE COMPANY
Plaintiffs
V.
JOHN BOSWELL SKINNER, JR., ET
AL.
Defendants

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NO: 4:11CV00691 SWW

ORDER
Helena Chemical Company (“Helena”) and Federal Insurance Company bring this action
against former Helena employees John Boswell Skinner, Jr., Thomas Chris Coleman, Kurt
Nelson Catlett, Adam Roll Catlett, and Wayne Norman Bass. Before the Court are Helena’s
motions to compel separate defendants Myron Bass (“Bass”) and Kurt Nelson Catlett (“Catlett”)
to respond requests for admissions (docket entries #121, #122, #123, #124) and Bass’s and
Catlett’s responses in opposition (docket entries #136, #127, #128, #129). After careful
consideration, and for reasons that follow, the motions to compel are denied.
In this case, Plaintiffs charge that Defendants engaged in various fraudulent schemes to
appropriate money and property belonging to Helena. Helena served requests for admissions
upon Bass and Catlett, requesting that the separate defendants admit that their handwritten
signatures appear on various employment-related documents. In separate responses, Bass and
Catlett asserted their Fifth Amendment right against self-incrimination.
Helena asks the Court to order Bass and Catlett to answer the requests for admissions.

Under Rule 36(a)(6) of the Federal Rules of Civil Procedure, a party may move to determine the
sufficiency of an answer or objection, and unless the court finds an objection justified, it must
order that an answer be served. See Fed. R. Civ. P. 36(a)(6).
Helena acknowledges that the privilege against self incrimination may be asserted in
response to discovery requests in a civil proceeding, but it argues that a “blanket” refusal to
answer requests by invoking the privilege is improper. Helena further asserts that given the
content of its requests for admissions, separate defendants’ invocation of the privilege is not
justified. Helena contends that Bass and Catlett lack reasonable cause to apprehend that
admitting or denying their handwritten signatures on employment-related documents would
support a conviction or provide a link in the chain of evidence to prosecute them for a crime.
Helena notes that Rule 36(b) of the Federal Rules of Civil Procedure provides: “An admission
under this rule is not an admission for any other purpose and cannot be used against the party in
any other proceeding.” Fed. R. Civ. P. 36(b).1
The Fifth Amendment of the United States Constitution provides that no person “shall be
compelled in any criminal case to be a witness against himself.” U.S. CONST. AMEND V. In
addition to protecting an individual against compelled testimony in a criminal case, the Fifth
Amendment privilege against self-incrimination permits him to decline answering questions put
to him in a civil proceeding when the answer might incriminate him in a future criminal

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Helena also argues that handwriting exemplars have generally been held to be outside
the protection of the Fifth Amendment. Requiring a criminal defendant to give a handwriting
exemplar and introducing samples of the defendant's handwriting at trial do not violate the Fifth
Amendment privilege against self-incrimination. See United States v. McDougal, 137 F.3d 547,
559 -560 (8th Cir. 1998)(citation omitted). “The handwriting itself (as opposed to the content of a
written statement) is physical, not testimonial evidence.” Id. Here, however, Helena is asking
the separate defendants to acknowledge that certain documents bear their signatures.
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proceeding. See Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973). In reviewing
the validity of the invocation of privilege in a particular case, “‘it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.’” Capitol Products Corp. v. Hernon, 457 F.2d 541, 542 (8th
Cir.1972)(quoting Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 81 (1951)).
Additionally, the risk of self-incrimination must be “substantial and real.” Id. (citation omitted).
Previously, Helena acknowledged that it has turned over evidence of Defendants’ alleged
misconduct to “governmental authorities.” See docket entry #97, at 2 n.1. Additionally, Helena
alleges in the complaint that Defendants’ fraudulent schemes including creating fraudulent
invoices. Given the content of the request for admissions, the nature of Helena’s claims, and the
threat of future criminal proceedings , the Court finds that a responsive answer to Helena’s
request or a more detailed assertion of the privilege would pose a substantial and real risk of selfincrimination. Accordingly, the Court finds that the separate defendants’ invocation of the
privilege was justified, and the Court will not order that answers be served.
IT IS THEREFORE ORDERED that Plaintiff’s motions to compel (docket entries #121,
#123) are DENIED.
IT IS SO ORDERED THIS 5TH DAY OF SEPTEMBER, 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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