DeLeo v. Wachovia Bank, N.A.

• Decision Date: 17 January 2007
• Docket Number: No. 2D06-580.,2D06-580.
• Parties: Joseph DeLEO, Appellant, v. WACHOVIA BANK, N.A., Appellee.
• Court: Florida District Court of Appeals

946 So.2d 626

Joseph DeLEO, Appellant, v. WACHOVIA BANK, N.A., Appellee.

No. 2D06-580.

District Court of Appeal of Florida, Second District.

January 17, 2007.

Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for Appellant.

Peter E. Shapiro and Temple Fett Kearns of Shutts & Bowen LLP, Fort Lauderdale, for Appellee.

CANADY, Judge.

In this appeal, Joseph DeLeo appeals the trial court's nonfinal order compelling DeLeo to answer questions in aid of execution of a judgment obtained by Wachovia Bank, N.A.¹ Based on the Fifth Amendment privilege against self-incrimination DeLeo argued that he should not be compelled to answer the questions at issue. Because we conclude the trial court abused its discretion by failing to rule on each individual question for which DeLeo asserted the Fifth Amendment privilege, we reverse and remand.

I. Background

After Wachovia obtained its judgment against DeLeo, it conducted a deposition in aid of execution of judgment. During the deposition, DeLeo invoked the Fifth Amendment in declining to respond to 178 questions. Wachovia then moved to compel DeLeo to respond. After a hearing before a magistrate on the motion to compel, the magistrate ordered DeLeo to submit an affidavit setting forth a "reasonable basis to demonstrate the danger of incrimination that would result from his answers to the questions."

DeLeo submitted his affidavit for in camera review, and thereafter the magistrate issued a recommended order determining that (1) certain objected-to questions had already been answered, (2) DeLeo should be compelled to answer certain questions, and (3) on the basis of a Fifth Amendment privilege, DeLeo should not be compelled to answer certain other questions. Wachovia then filed exceptions to the recommended order, arguing that the Fifth Amendment should not bar any of the questions posed.

The trial court conducted a hearing for which there is no transcript available. However, the parties entered into a stipulated statement of proceedings which states that although the court heard argument from counsel and considered the pleadings, it "did not examine the questions to which objections were posed in the Defendant's ... deposition, weighing Defendant's invocation of his Fifth Amendment privilege against certain questions."

Ultimately, the trial court entered its nonfinal order granting Wachovia's exceptions and directing DeLeo to answer all questions posed. The trial court attempted to fashion a form of protection for DeLeo's Fifth Amendment privilege by ordering that the answers "shall be solely used in aid of execution by [Wachovia] and not released to any other party." The order also contained the statement that:

"The court acknowledges Defendant's objections to this Order and recognizes Defendant's answers will be made under compulsion." It is from this order that DeLeo appeals.

II. Analysis

DeLeo argues that although the magistrate complied with her duty to review each question individually to determine whether the Fifth Amendment privilege applied, the trial court granted Wachovia's exceptions to the recommended order without conducting such an individualized analysis. We agree that the trial court was required to analyze each question to which DeLeo objected to determine if the Fifth Amendment privilege applied. Based on the record before us, we conclude that the trial court failed to do so.

DeLeo was entitled to invoke the Fifth Amendment privilege if he had "reasonable grounds to believe that his answers would provide `a link in the chain of evidence needed to prove a crime against him.'" Novak v. Snieda, 659 So.2d 1138, 1140 (Fla. 2d DCA 1995) (quoting Rainerman v. Eagle Nat'l Bank, 541 So.2d 740, 741 (Fla. 3d DCA 1989)). Because Wachovia sought to compel DeLeo to answer the questions to which he posed an objection, it was necessary to conduct a hearing. See id. at 1141. At such a hearing, "[i]f the self-incriminating nature of the question is not apparent, then [the person asserting the privilege] must show the court the danger of incrimination that could result from the answer." Id.

To sustain the privilege, it need only be evident from the implications of the questions, 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. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. The privilege must be sustained if it is not perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.

Raass v. Borgia, 644 So.2d 121, 122 (Fla. 2d DCA 1994) (emphasis removed) (internal quotation marks omitted). "The trial court then must rule on each individual question to which [the person] invoked the Fifth Amendment and order which questions [the person] must answer and which questions, if any, are protected by the Fifth Amendment." Novak, 659 So.2d at 1141 (emphasis added).

The case law is predicated on the understanding that a litigant's Fifth Amendment rights cannot be adequately protected by the simple expedient of an order—like the order at issue here—barring disclosure of the answers to questions with respect to which the Fifth Amendment has been invoked.

A protective order in a civil case ... allows the response, or at least information derived from the response, to spill out at trial, appeal, or some other hearing, where it could be discovered and later used by prosecutors. No protective order could provide the absolute protection [required by the Fifth Amendment, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972),] against direct or indirect use by prosecutors. The court can hardly hold all proceedings . . . in secret . . . and prevent all participants from supplying information to the government.

Robert Heidt, The Conjurer's Circle—The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1095 (1982). Accordingly, "it is clear that the fifth amendment's proscription of forced self-incrimination cannot be circumvented by the issuance of a . . . protective order." Andover Data Servs. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir.1989); see also Pillsbury Co. v. Conboy, 459 U.S. 248, 263-64, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (holding "that a deponent's civil deposition testimony ... without duly authorized assurance of immunity at the time . . . may not be compelled over a valid assertion of his Fifth Amendment privilege") (footnote omitted).

Here, the first fact-finder—the magistrate—complied with the requirements set forth in Novak and Ra...