Martinez et al v. The Welk Group, Inc. et al

Filing 189

ORDER Denying in Part without Prejudice Counter-Defendant's 186 Motion for Protective Order. Signed by Magistrate Judge William McCurine, Jr on 3/15/2013. (knb)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HERMENEGILDO (“JAY”) MARTINEZ, an )
individual on his own behalf and on behalf of )
all others similarly situated;
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Plaintiff,
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v.
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THE WELK GROUP, INC.; WELK
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RESORT GROUP INC.; WELK MUSIC
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GROUP, INC.; SOLEIL
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COMMUNICATIONS, INC.; and DOES 1
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through 25,
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Defendants.
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Case No. 09CV2883 AJB (WMc)
ORDER DENYING IN PART
COUNTER-DEFENDANT’S MOTION
FOR PROTECTIVE ORDER
[ECF No. 186.]

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I. INTRODUCTION
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On February 8, 2013, Counter-Defendant Wade Brent filed a motion for protective order to
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preclude Counter-Claimant, The Welk Group, from questioning him at deposition regarding the
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contents of an email dated October 5, 2009.1 [ECF No. 186.] Following his December 18, 2012
deposition,2 Brent has not been questioned by Welk about the email at issue and now invokes his

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The October 5, 2009 email is Exhibit 9 to the December 18, 2012 deposition of Counter-Defendant
Wade Brent. Brent is only invoking the 5th Amendment right against self-incrimination as to the top portion of
the October 5, 2009 email which is time stamped 8:14 p.m. See Gold Decl. at para. 4-8.
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Brent attended a day-long deposition in 2010 in his capacity as putative class-representative before
District Judge Battaglia granted the Welk Defendants’ motion for summary judgment dismissing Plaintiffs’
complaint.. See Kenny Decl. at para. 2.
09cv2883 AJB (WMc)

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Fifth Amendment right to remain silent to prevent counsel for Welk from raising the subject at any

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future depositions.3 Id. at 3:16-21; 5:15-18.

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Welk objects to Brent’s invocation of the privilege on the grounds it is overbroad and

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generalized as well as lacking in statutory support, which raises the issue of whether Brent’s concern

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regarding the possibility of criminal prosecution is objectively reasonable. [ECF No. 187 at 3:10-

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25.] Welk contends Brent’s invocation of the right against self-incrimination is frivolous and

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requests the Court order Brent to pay fees and costs incurred by Welk to respond to his motion.

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Brent argues despite Welk’s objection, he has made an adequate offer of proof to support his

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Fifth Amendment right to remain silent through the declarations of his lawyer ( a former prosecutor)

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and himself. Brent states his invocation of the right was not “blanket” in that he attended his

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deposition as noticed and answered other questions posed to him that did not implicate the October

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5, 2009 email. Brent also contends he should not have to divulge the authority under which he fears

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prosecution because to do so would undermine the very right against self-incrimination that he seeks

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to invoke. [ECF No. 188.]

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II. STANDARD OF REVIEW

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A. Protective Order

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Under Rule 26 of the Federal Rules of Civil Procedure, a party may move for a protective

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order to protect a himself from annoyance, embarrassment, oppression, or undue burden or expense.

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Fed. R. Civ. P. 26c(1). In its protective order, a Court may forbid disclosure or forbid inquiry into

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certain matters as well as limit the scope of disclosure to certain matters. Fed. R. Civ. P. 26c(1)(A),

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(D). Specifically, under Rule 26c, the Court has “broad discretion ... to decide when a protective

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order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467

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U.S. 20, 36 (1984).

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On December 18, 2012, Counter-Defendant Wade Brent sat for deposition regarding the counterclaim
brought against him by Counter-Claimant, The Welk Group. After a few hours of testimony, counsel for Brent
informed Welk that questions regarding the October 5, 2009 email were attorney-client privileged and barred
questions regarding the upper portion of the email at issue. At a second deposition, conducted on January 25,
2013, counsel for Brent informed Welk’s counsel that instead of the attorney-client privilege, the Fifth
Amendment right against self-incrimination applied to the top portion of the October 5, 2009 email. See Kenny
Decl. at para. 2-4.

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09cv2883 AJB (WMc)

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B. Invocation of the Fifth Amendment Privilege

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“The Fifth Amendment ‘can be asserted in any proceeding, civil or criminal, administrative

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or judicial, investigatory or adjudicatory; and it protects against any disclosure which the witness

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reasonably believes could be used in a criminal prosecution or could lead to other evidence that

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might be so used.’” United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) (per curiam)

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(quoting Kastigar v. United States, 406 U.S. 441, 444-445 (1972) ). The propriety of invoking the

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Fifth Amendment privilege depends on whether the risk of prosecution is substantial and real and

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not merely fanciful.” In re Corrugated Container Antitrust Litig., 662 F.2d 875, 883 (D.C. Cir.

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1981). Nevertheless, an assertion of the privilege does not require an imminent criminal prosecution

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or investigation. “[T]he right to assert one’s privilege against self-incrimination does not depend

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upon the likelihood, but upon the possibility of prosecution.” In re Master Key Litigation, 507 F.2d

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292, 293 (9th Cir. 1974). The possibility of prosecution exists where the statute of limitations has

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not run, or there are no other concrete indications that criminal prosecutions are barred. Doe v.

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Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).

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III. DISCUSSION

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In the context of deposition testimony, in order to assert the Fifth Amendment privilege,

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Brent must answer all questions regarding the upper portion of the October 5, 2009 email that do

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not pose a risk of self-incrimination. See e.g. SEC v. Thomas, 116 F.R.D. 230, 234 n.7 (D.Utah

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1987); Wright & Miller, 8 Fed. Prac. & Proc. Civ. § 2018 (3d ed.). Specifically, he may claim the

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privilege in response to each individual deposition question when he has “reasonable cause” to

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believe an answer would lead to self-incrimination. Hoffman v. United States, 341 U.S. 479, 486

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(1951). Currently, no questions have been asked of Brent as to the upper portion of the October 5,

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2009 email. So while Brent has answered other questions posed to him at his deposition, his

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invocation of the privilege at this point is an improper “blanket” assertion because he has neither

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heard, nor answered Welk’s specific questions as to the top portion of the October 5, 2009 email.

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Without a record of Welk’s proposed questions and Brent’s responses or assertions of the privilege,

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the Court cannot make a determination at this point about which questions, if any, entitle Brent to

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claim the privilege. Moreover, the Court has reviewed the portion of the October 5, 2009 email
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09cv2883 AJB (WMc)

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which is time-stamped 8:14 p.m., and it is not apparent from the material what federal criminal

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statue would be implicated by questioning on the subject. While it is not necessary for Brent to

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reveal the criminal statue(s) that may be at issue as Welk suggests,4 the Court nevertheless must

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have a record from which to work in order to determine the objective reasonableness of Brent’s

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concerns about the risk of prosecution. Accordingly, the Court DENIES IN PART Brent’s motion

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and orders Brent to appear for deposition regarding that portion of the October 5, 2009 email which

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is time-stamped 8:14 p.m. The Court’s order does not preclude Brent from claiming the Fifth

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Amendment privilege during deposition where reasonable cause exists. However, Brent must do so

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on a question-by-question basis. Once an official record of Brent’s deposition has been made, that

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portion of the deposition transcript addressing the October 5, 2009 email shall be made available to

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the Court within ten (10) days. Upon receipt of the relevant portions of the deposition transcript,

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the Court will determine whether Welk’s questions pose real, substantial hazards of self-

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incrimination for Brent. See Neff, 615 F.2d at 1240 (explaining the court can conduct an in camera

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“examination of the questions, their setting, and the peculiarities of the case.”).

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IT IS FURTHER ORDERED that Welk’s request for Brent to pay the fees and costs it

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incurred to respond to his motion is DENIED without prejudice. Without a record of the parties’

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questions and answers, a sanctions award would be unsupported and premature at this time. See

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Fed. R. Civ. P. 37(a)(5)(A)(iii); 37(a)(5)C.

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IT IS SO ORDERED.
DATED: March 15, 2013

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Hon. William McCurine, Jr.
U.S. Magistrate Judge
United States District Court

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See Hoffman, 341 U.S. at 486 (“[I]f the witness, upon interposing his claim, were required to prove the
hazard in the sense in which a claim is usually required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to guarantee.”).

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09cv2883 AJB (WMc)