Torres v. Zamanizadeh et al
Filing
80
OPINION AND ORDER written by the Honorable John V. Acosta. Torres's motion to compel 75 is GRANTED with regard to corporate documents of ACS in Zamanizadeh's possession as shareholder, president, or chief executive officer of A CS, and DEFERRED with regard to all other answers or documents to allow Zamanizadeh to assert, Torres to contest, and the court to consider, his Fifth Amendment privilege on a question-byquestion, or document-by-document, basis. DATED this 26th day of November, 2019. (pjg) Modified text removing mailed to pro se party on 11/26/2019 (pjg).
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
ANGELA TORRES, an individual,
Case No. 3:17-cv-01270-AC
Plaintiff,
OPINION AND ORDER
v.
ALIREZA ZAMANIZADEH, a/k/a ALI
ZAMANI, an individual; and ADULT CARE
SEARCH, a foreign non-profit corporation,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff, Angela Torres (“Torres”), filed this action against defendants Alireza
Zamanizadeh (“Zamanizadeh”) and Adult Care Search (“ACS”) (collectively “Defendants”)
asserting claims for fraud and unjust enrichment. Currently before the court is Torres’s motion to
compel Zamanizadeh to produce documents and answer interrogatories (the “Motion”).
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Zamanizadeh opposes the Motion asserting his Fifth Amendment privilege against selfincrimination.
The court finds Zamanizadeh’s provision of documents to the government in connection
with its criminal investigation did not constitute a waiver of his Fifth Amendment privilege in this
separate civil proceeding. Similarly, the information Zamanizadeh provided in the declarations
and oral argument in this proceeding was not inherently incriminating and did not waive the
privilege. However, Zamanizadeh’s blanket invocation of the privilege is improper because it
must asserted on a question-by-question, or document-by-document, basis. Finally, Zamanizadeh
is unable to assert a Fifth Amendment privilege with regard to ACS records in his possession.
Accordingly, the Motion is granted in part and deferred in part.
Background
In May 2016, Torres and Zamanizadeh became involved in a romantic relationship.
(Compl., ECF No. 1-1,1 ¶ 6.) At that time, Torres had been separated from her husband for seven
years and was contemplating initiating divorce proceedings.
(Compl. ¶ 7.)
Zamanizadeh
encouraged Torres to file for divorce and suggested she protect her personal assets by transferring
them to ACS, a non-profit corporation owned primarily by Zamanizadeh.2 (Compl. ¶¶ 3-5, 7, 8.)
Zamanizadeh assured Torres her assets would not be used by Defendants and would be returned
to her upon the finalization of her divorce. (Compl. ¶¶ 5, 8.) Based on Zamanizadeh’s direction
Torres originally filed her lawsuit in the Superior Court for the State of Washington, County of
Clark. (Notice of Removal, ECF No. 1.) The parties stipulated to the removal of this action to
this court and attached the original complaint as exhibit l to the Notice of Removal.
1
Torres alleges, and Zamanizadeh admits, he is the principal shareholder, president, and chief
executive officer of ACS.
2
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and assurances, Torres transferred substantial assets to ACS including cash, in the amount of
approximately $300,000, and her residence, valued at $573,000. (Compl. ¶¶ 9, 26.) Torres
subsequently authorized Defendants to use some of the transferred funds and issued a cashier’s
check to Zamanizadeh in an additional amount of $13,000. (Compl. ¶ 10.) Torres’s divorce was
finalized in December 2016. (Compl. ¶ 16.) Despite repeated requests, Zamanizadeh has refused
to reconvey the residence or return the funds to Torres. (Compl. ¶ 16.)
Torres filed a lawsuit against Zamanizadeh on February 20, 2017, seeking recovery of the
amounts transferred to Defendants. (Stipulated Notice of Removal, ECF No. 1 (“Notice”), at 2.)
Defendants’ legal counsel negotiated the removal of the lawsuit to this court, filed an answer and
counterclaims, and appeared at a Rule 16 conference and hearing on a temporary restraining order
on behalf of Defendants before obtaining court approval to withdraw as counsel on January 31,
2018. (Minutes of Proceedings, ECF No. 20.) With the exception of counsel appointed by the
court to assist Defendants in the negotiation of a settlement between January 24, 2019 and March
18, 2019, Zamanizadeh has represented himself, and attempted to represent ACS, in this litigation.
On May 23, 2019, Defendants filed a motion to stay this case in light of an ongoing
investigation by the United States Attorney’s Office, based on allegations of Defendants criminal
interactions with Torres (“Stay Motion”). (Defs.’ Mot. to Stay the Civil Case and Subpeonas, ECF
No. 62 (“Mot. to Stay”), at 1, 3.) Torres opposed the Stay Motion, arguing no criminal complaints
had been filed against Zamanizadeh, Zamanizadeh waived his Fifth Amendment privilege by
participating in this action and offering numerous statements regarding the facts at issue, and any
delay would be prejudicial to Torres.
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At a hearing held on May 31, 2019, the court granted the Stay Motion, which included a
stay of all discovery, pending a status conference set for July 10, 2019. (Mins. of Proceeding, ECF
No. 71.) The order generated at the July 10, 2019 status conference required:
(1) Defendant to provide to plaintiff’s counsel copies of transcript(s) of any
recorded conversations between he and plaintiff, as well as a copy of the letter to
the government, which is allegedly authored by plaintiff. (2) Defendant to produce
any documents pertaining to any transactions contained in the complaint and any
communications with plaintiff. (3) Defendant will not respond to any requests for
admissions until further order of the court. (4) Defendant is to answer the
Interrogatories propounded by plaintiff's counsel unless advised otherwise by Tom
Price. (5) Plaintiff to provide to defendant previously requested discovery that was
propounded when defendant was represented by counsel. (6) All discovery
mentioned above to be provided on or before 8/9/19. (7) All other discovery
remains stayed including plaintiff's subpoenas.
(Mins. of Proceeding, ECF No. 72.)
The court subsequently received two letters from Thomas E. Price (“Price”),
Zamanizadeh’s court-appointed criminal defense counsel. In a letter dated July 8, 2019, Price
informed Zamanizadeh he provided Assistant United States Attorney Donna Maddux “additional
evidence which the government is now reviewing” specifically “the 3 audio files you provided.”
(Glinka Decl., ECF No. 76, Ex. 4.) The “government” also planned “to conduct tests on the letter.”
(Glinka Decl. Ex. 4.) In a second letter dated July 31, 2019, Price informed the court he was
“advising Mr. Zamanizadeh to invoke his rights against self-incrimination under the Fifth
Amendment in response to the [July 10, 2019 court order].” (Glinka Decl. Ex. 5 at 1.) Specifically,
Price advised Zamanizadeh not to produce copies of any transcripts of recorded conversations
between Torres and Zamanizadeh or any documents related thereto, a copy of a letter to the
government authored by plaintiff, or any documents pertaining to the transactions alleged in the
complaint filed in this action. (Glinka Decl. Ex. 5 at 1.)
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At a status conference held August 14, 2019, the court granted Torres’s request to file a
brief addressing Zamanizadeh’s Fifth Amendment arguments. In response, Torres filed the
Motion seeking answers to interrogatories and production of documents as ordered by the court in
the July 10, 2019 order.
Legal Standard
Rule 37 of the Federal Rules of Civil Procedure provides that a party seeking discovery
may move the court for an order “compelling an answer, designation, production, or inspection”
if a party fails to answer a properly submitted interrogatory or fails to produce requested
documents. FED. R. CIV. P. 37(a)(3)(B) (2019). The party seeking to compel discovery is
burdened with demonstrating the information he or she seeks is relevant, but “[t]he party who
resists discovery has the burden to show that discovery should not be allowed, and has the burden
of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455,
458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975);
Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990)). The court has
broad discretion to determine the relevancy of the information sought, and the requested
information need not be admissible to be discoverable. Survivor Media, Inc. v. Survivor Prods.,
406 F.3d 625, 635 (9th Cir. 2005).
Discussion
The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself . . . .” U.S. CONST. amend V.
“This provision of the Amendment must be accorded liberal construction in favor of the right it
was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486 (1951).
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While the express language of the provision seemingly limits the right against selfincrimination to the criminal context, the Fifth Amendment’s protections have been deemed to
apply to civil proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Thus, the Fifth
Amendment’s protections against self-incrimination can be asserted in any proceeding, be it civil,
criminal, administrative, judicial, investigative, or adjudicatory. Kastigar v. United States, 406
U.S. 441, 444 (1972). However, in the civil context, the invocation of the privilege is limited to
those circumstances in which the person invoking the privilege reasonably believes that his
disclosures could be used in a criminal prosecution or could lead to other evidence that could be
used in that manner. United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir.1995). Therefore, the
“privilege against self-incrimination does not depend upon the likelihood, but upon the possibility
of prosecution” and also covers those circumstances where the disclosures would not be directly
incriminating but could provide an indirect link to incriminating evidence. United Liquor Co. v.
Gard, 705 F.2d 1499, 1501 (9th Cir.1983).
There is no dispute Zamanizadeh is the subject of a criminal investigation and Torres does
not argue Zamanizadeh does not have a valid claim to a Fifth Amendment privilege. The only
question is whether Zamanizadeh, by his prior disclosures in this proceeding and in connection
with the criminal investigation, waived his right to assert the privilege in this proceeding. Like
other privileges in a civil setting, the Fifth Amendment privilege can be waived. However, “Fifth
Amendment waivers ‘should be inferred only in the most compelling circumstances.’” Conant v.
McCaffrey, No. C 97-0139 FMS, 1998 WL 164946, at *6 (N.D. Cal. Mar. 16, 1998) (quoting Klein
v. Harris, 667 F.2d 278, 288 (2d Cir. 1981)). As with other fundamental constitutional rights,
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courts “must indulge every reasonable presumption against waiver.” Emspak v. United States, 349
U.S. 190, 198 (1955).
Torres argues Zamanizadeh waived his right to rely on the Fifth Amendment privilege
when he provided documents to the government, presented sworn testimony in declarations filed
in this case, and made factual representations during oral argument in open court, all pertaining to
the allegations here and being investigated by the government in the criminal proceeding.
Additionally, Torres contends Zamanizadeh may not assert a Fifth Amendment privilege on behalf
of ACS.
I. Provision of Documents to Government
Zamanizadeh’s defense counsel provided documents to the United States Attorney’s Office
with regard to a criminal investigation of Defendants. To the extent this production constituted a
waiver of Zamanizadeh’s Fifth Amendment rights, such waiver is limited to the criminal
investigation and does not prevent Zamanizadeh from asserting such rights in this civil action. “It
is well settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding
in which the waiver occurs.” United States v. Licavoli, 604 F.2d 613, 623 (1979) (voluntary
testimony before a grand jury did not waive the privilege at trial); see also Mitchell v. United
States, 526 U.S. 314, 321 (1999) (“[i]t is will established that a witness, in a single proceeding,
may not testify voluntarily about a subject and then invoke the privilege against self-incrimination
when questioned about the details.”). Zamanizadeh’s provision of documents to the government
in the criminal investigation is irrelevant to Zamanizadeh’s ability to assert his Fifth Amendment
rights in this action and does not constitute a waiver of such rights.
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II. Declarations and Oral Argument in this Proceeding
While appearing pro se in this civil action, Zamanizadeh filed two declarations and
participated in oral argument. Torres appears to argue this conduct constitutes a waiver of
Zamanizadeh’s Fifth Amendment privilege with regard to all discovery. A party may waive the
Fifth Amendment privilege through the disclosure of incriminating facts. Rogers v. United States,
340 U.S. 367, 373-74 (1951); see also McCarthy v. Arndstein, 262 U.S. 355, 357-59 (1923)
(disclosure of facts that are not incriminating do not waive Fifth Amendment privilege as to matters
that might incriminate witness). Once such facts are admitted, a party cannot properly claim
privilege over the details surrounding those incriminating facts. Id. at 373. However, the party
still retains a privilege over any additional facts that would further incriminate them. Id. at 374;
see also In Re Master Key, 507 F.2d 292, 294 (9th Cir. 1974) (quoting Shendal v. United States,
312 F.2d 564, 566 (9th Cir. 1963) (“an ordinary witness may ‘pick the point beyond which he will
not go,’ and refuse to answer any questions about a matter already discussed, even if the facts
already revealed are incriminating, as long as the answers sought may tend to further incriminate
him.”).
Torres does not argue, and the court is not convinced, the information offered by
Zamanizadeh in his declarations and oral arguments is incriminating. Zamanizadeh offers his
version of the facts, admitting he and Torres had a romantic relationship, Torres made donations
to ACS without Zamanizadeh’s knowledge, volunteered to loan money to Defendants that would
be paid back with assets transferred from Iran, and authorized Zamanizadeh to utilize a power of
attorney Torres provided him. Torres describes this information as “one-sided statements,”
Zamanizadeh’s “own retelling of the relevant events,” and a “biased narrative of the events and
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facts at issue,” impliedly conceding the information provided by Zamanizadeh places
Zamanizadeh in a positive light and is not incriminating. (Pl.’s Mot. to Compel, ECF No. 75, at
8.) The court does not find the information voluntarily offered by Zamanizadeh is incriminating.
Accordingly, Zamanizadeh did not waive his Fifth Amendment privilege by offering his version
of the facts in the declarations or at oral argument.
However, Zamanizadeh’s broad invocation of his Fifth Amendment privilege to the
universe of the discovery sought in the Motion is improper. “The only way the privilege can be
asserted is on a question-by-question basis, and thus as to each question asked, the party has to
decide whether or not to raise his Fifth Amendment right.” Doe v. Glanzer, 232 F.3d 1258, 1263
(9th Cir. 2000). To preserve his right to assert the Fifth Amendment privilege, Zamanizadeh must
invoke the privilege on a question-by-question, or document-by-document, basis. Torres may then
dispute each assertion of the privilege, allowing this court to consider the applicability of the
privilege in the same fashion. Rogers, 340 U.S. at 374 (“As to each question to which a claim of
privilege is directed, the court must determine whether the answer to that particular question would
subject the witness to a ‘real danger’ of further crimination.”).
III. Corporate Records
“The constitutional privilege against self-incrimination is essentially a personal one,
applying only to natural individuals.”
United States v. White, 322 U.S. 694, 698 (1944).
“Moreover, the papers and effects which the privilege protects must be the private property of the
person claiming the privilege, or at least in his possession in a purely personal capacity.” Id. at
699. Accordingly, the Fifth Amendment privilege may not be asserted by or on behalf of a
corporation, partnership, or other entity in response to a request for corporate records. Id.
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Custodians of corporate records, such as directors, officers, or shareholders, hold the records as
representatives of the corporation and may be compelled to produce them “even though production
of the papers might tend to incriminate them personally.” Id. Zamanizadeh is unable to assert a
Fifth Amendment privilege on behalf of ACS and must produce all corporate records in his
possession.
Conclusion
Torres’s motion to compel (ECF No. 75) is GRANTED with regard to corporate documents
of ACS in Zamanizadeh’s possession as shareholder, president, or chief executive officer of ACS,
and DEFERRED with regard to all other answers or documents to allow Zamanizadeh to assert,
Torres to contest, and the court to consider, his Fifth Amendment privilege on a question-byquestion, or document-by-document, basis.
DATED this 26th day of November, 2019.
/s /John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
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