Cohran v. Carlin

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; QUILLIAN
• Citation: Cohran v. Carlin, 297 S.E.2d 54, 165 Ga.App. 141 (Ga. App. 1982)
• Decision Date: 03 November 1982
• Docket Number: No. 65080,65080
• Parties: COHRAN v. CARLIN et al.

Page 54

297 S.E.2d 54

165 Ga.App. 141

COHRAN v. CARLIN et al.

No. 65080.

Court of Appeals of Georgia.

Nov. 3, 1982.

Roy E. Barnes, Thomas J. Casurella, Marietta, for appellant.

Taylor W. Jones, Atlanta, Hylton Dupree, Jr., Marietta, for appellees.

CARLEY, Judge.

The instant appeal has a rather complicated history, a summary of which is necessary to the resolution of the issue presented.

Appellee-plaintiffs, the Carlins, instituted suit against appellant-defendant, Cohran, a practicing attorney. Subsequently, the Carlins sought to depose Cohran in connection with their pending action. During the deposition, Carlin refused to answer some 91 questions, premising his objections on various grounds, including irrelevancy, immateriality, and an assertion that answering would work a forfeiture of his estate or tend to bring infamy or disgrace or public contempt upon himself or any member of his family. Apparently, however, Cohran did not at this time specifically assert a Fifth Amendment privilege and object on the basis that answering would tend to incriminate him. The Carlins made a motion to compel discovery and the trial court, after conducting a hearing, ordered Cohran to respond to some 71 of the 91 unanswered questions. At this hearing on the motion to compel, Cohran did assert that his objection during the deposition to several of the Carlins' questions, no one of which is at issue in the instant appeal, was "the equivalent of the Fifth Amendment" and that the evidence sought thereunder "might tend to incriminate" him.

When Cohran subsequently failed to comply with the trial court's order requiring that he answer the 71 questions, he was adjudged in contempt. Cohran then appealed from the contempt order. This contempt order was affirmed in Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981). The affirmance by this court of the contempt order was itself upheld by the Supreme Court on certiorari in Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982).

When the remittitur affirming the contempt order was returned to the trial court, Cohran's deposition was rescheduled in order that he could answer the 71 previously unaddressed questions and thus purge himself of contempt. During the rescheduled deposition, Cohran for the first time invoked his Fifth Amendment privilege against self-incrimination and, on this basis refused to answer some 15 or 16 of the original 71 questions the trial court had previously ordered him to answer. No such privilege or objection to these specific questions had ever previously been invoked or raised during either the original deposition or the original hearing on the motion to compel. After Cohran had been redeposed, he moved for an order discharging his contempt for having failed to obey the trial court's original directive to answer the 71 questions. The trial court denied Cohran's motion for discharge and it is from this order that Cohran brings the instant appeal.

It is essentially Cohran's position that, on the above stated facts, he did not waive his Fifth Amendment privilege against self-incrimination as to any of the original 71 unanswered questions and that his subsequent invocation of that privilege as to several of the questions at the rescheduled deposition was therefore not in continuing contempt of the trial court's order requiring that he respond to the questions. Accordingly, the issue presented for resolution in the instant appeal may be stated as follows: Where a witness in a civil action fails to invoke his Fifth Amendment privilege when the question is originally asked, relying solely on other objections and privileges in refusing to answer, and the trial court orders that the questions be answered over the stated objections, can the witness, subsequent to an affirmance of the trial court's order by the appellate courts, avoid being cited for contempt by then asserting a self-incrimination privilege as the basis for his refusal to respond to the question?

" 'The protections of the Fifth Amendment may be invoked in civil as well as criminal actions, [cits.], and apply fully to state proceedings through the Fourteenth Amendment. [Cit.]' " Tennesco v. Berger, 144 Ga.App. 45, 47, 240 S.E.2d 586 (1977). However, "there '... is no blanket Fifth Amendment right to refuse to answer questions in non-criminal proceedings." ... The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim," ' ..." Tennesco, 144 Ga.App. at 48, 240 S.E.2d 586, supra. "Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege." Garner v. U.S., 424 U.S. 648, 655, 96 S.Ct. 1178, 1183, 47 L.Ed.2d 370 (1976).

At the original deposition, Cohran invoked no specific claim of his Fifth Amendment privilege as to the relevant questions at issue in the instant appeal. "[T]he claim of privilege should be made when the question is asked ... [i]t cannot operate as a general prohibition of inquiry ..." Chastain v. State, 113 Ga.App. 601, 602, 149 S.E.2d 195 (1966). That Cohran was not unaware of his rights under the Fifth Amendment is established by the fact that he argued the privilege against self-incrimination as to some of the other questions during the original hearing before the trial court on the motion to compel.

During the original deposition and hearing on the motion to compel, Cohran asserted various other privileges and objections to answering the questions. None of the objections which Cohran originally raised addressed the fundamental underlying authority of the Carlins to obtain discovery. In other words, none of Cohran's original objections if sustained by the trial court or on appeal, would have resulted in a holding that the Carlins had no right, generally, to depose him in the pending litigation. Compare Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (holding that one who relied, in refusing to answer questions, on the supposed lack of authority of the agency involved to deal with the subject matter, was not, under the circumstances, precluded from invoking his Fifth Amendment privilege after his jurisdictional objection proved...