Dempsey v. Kaminski Jewelry, Inc., No. A05A2142.

• Decision Date: 28 March 2006
• Docket Number: No. A05A2142.
• Citation: 630 S.E.2d 77
• Parties: DEMPSEY et al. v. KAMINSKI JEWELRY, INC.
• Court: Georgia Court of Appeals

630 S.E.2d 77

DEMPSEY et al. v. KAMINSKI JEWELRY, INC.

No. A05A2142.

Court of Appeals of Georgia.

March 28, 2006.

Reconsideration Denied April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Sams, Larkin & Huff, David P. Hartin, Michael P. Pryor, William C. Gentry, Marietta, for appellant.

Browning & Smith, Thomas J. Browning, Marietta, for appellee.

MILLER, Judge.

Kaminski Jewelry, Inc. brought suit against its ex-employee Diane Dempsey to recover money she allegedly stole. In the course of discovery, the trial court granted Kaminski Jewelry's motions to compel the depositions of Dempsey and her husband as well as the production of documents. The trial court also granted Kaminski Jewelry attorney fees in the amount of $3,500. The Dempseys applied to this Court for interlocutory review, arguing that a compelled response to the discovery requests might provide information essential to the pending criminal case against them and thus violate their privilege against self-incrimination. We conclude that although the trial court's grant of Kaminski Jewelry's motions to compel does not violate the privilege against self-incrimination or other privileges, the Dempseys had no opportunity to be heard on the matter of attorney fees. For these reasons we affirm in part, vacate in part, and remand to the trial court for a hearing on the issue of attorney fees.

In May 2004, Diane Dempsey was arrested on charges of stealing more than $100,000 in cash and goods from her employer, Kaminski Jewelry. An indictment has not yet been issued in the criminal case.¹ On January 14, 2005, Kaminski Jewelry sued Mrs. Dempsey for compensatory and punitive damages as well as fees in connection with the theft. Kaminski Jewelry then served Mrs. Dempsey with a notice of deposition as well as a request for documents including checks, tax returns, and other financial records. Kaminski Jewelry also served Mr. Dempsey with a subpoena for and notice of deposition.

Invoking various privileges, the Dempseys sought a protective order. Mrs. Dempsey also requested a stay. Kaminski Jewelry responded with motions to compel. At a hearing held on April 11, 2005, Kaminski Jewelry amended its motion to include a request for attorney fees. The Dempseys objected to the amendment, opposing any award of attorney fees without prior notice and an evidentiary hearing. The trial court denied the Dempseys' motions, granted Kaminski Jewelry's motions to compel, and awarded $3,500 in attorney fees to Kaminski Jewelry. The trial court also issued a certificate of immediate review. The Dempseys applied for interlocutory review of the trial court's order, which we granted.

On appeal, the Dempseys argue that the trial court's order violates the privilege against self-incrimination, the spousal communications privilege, and the privilege against the disclosure of evidence tending to work a forfeiture of estate. The Dempseys also assert that the trial court erred in ordering Mr. Dempsey to sit for a deposition despite his medical unavailability, and that the award of attorney fees was made without notice and without evidence to support it.

We will not reverse a trial court's ruling on discovery matters in the absence of an abuse of discretion. Emmett v. Regions Bank, 238 Ga.App. 455, 456(1), 518 S.E.2d 472 (1999).

1. The Dempseys' central argument is that the trial court's grant of Kaminski Jewelry's motions to compel violates their privileges against self-incrimination. They also argue that they need not produce spousal communications or evidence tending to work a forfeiture of estate. We disagree.

(a) 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. The Georgia Constitution contains a similar privilege against self-incrimination, providing that no person shall be compelled to give testimony tending in any manner to be self-incriminating. Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. The privilege is also codified in OCGA § 24-9-27(a): "No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family." This privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers creating a "real and appreciable" danger of establishing a link in the chain of evidence needed to prosecute. Axson v. Nat. Surety Corp., 254 Ga. 248, 250, 327 S.E.2d 732 (1985); see also Begner v. State Ethics Comm., 250 Ga. App. 327, 330(1), 552 S.E.2d 431 (2001).

There is no blanket Fifth Amendment right to refuse to answer questions in civil proceedings, however. "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." (Citation omitted.) Tennesco, Inc. v. Berger, 144 Ga.App. 45, 48(3), 240 S.E.2d 586 (1977); see also Axson, supra, 254 Ga. at 249, 327 S.E.2d 732.

To sustain the privilege, 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. 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.

(Punctuation omitted.) Page v. Page, 235 Ga. 131, 133, n. 1, 218 S.E.2d 859 (1975), quoting Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

(i) The Dempseys first contend that their motions to quash the deposition subpoenas should have been granted because their deposition testimony might tend to incriminate them in the pending criminal matter. This is not the law in Georgia. Although the Dempseys are free to assert their privilege against self-incrimination in response to specific questions at a deposition, they are not permitted to "slide out of [their] obligations by a brash assertion that any and all questions directed to [them] would tend to incriminate [them]." Tennesco, supra, 144 Ga.App. at 48(3), 240 S.E.2d 586. Only when the privilege is asserted in response to a specific question could a trial court hold that the claim of privilege is justified. See Page, supra, 235 Ga. at 133, 218 S.E.2d 859; Begner, supra, 250 Ga.App. at 330(1), 552 S.E.2d 431.

(ii) The Dempseys also contend that compelling them to produce financial documents such as checks, account statements, and tax returns is tantamount to forcing them to incriminate themselves in the pending criminal investigation. We disagree.

It is well established that a criminal defendant may be forced to submit to physical tests without implicating the privilege against self-incrimination, since such tests do not force the defendant to "do an act" against his will. See, e.g., Creamer v. State, 229 Ga. 511, 516-518, 192 S.E.2d 350 (1972) (removal of bullet from murder defendant's body does not implicate privilege); compare Aldrich v State, 220 Ga. 132, 134-135, 137 S.E.2d 463 (1964) (statute requiring truck driver to drive onto state scales violated privilege); Day v. State, 63 Ga. 667, 668-669(2) (1879) (forcing defendant to place foot in shoe print near scene of burglary violated privilege). The Supreme Court of Georgia has also held, however, that a party may claim the privilege as to financial information sought by interrogatory, since the responses to such questions "might tend to incriminate" a person as a matter of law. Mallin v. Mallin, 227 Ga. 833, 835(2), 183 S.E.2d 377 (1971) (affirming denial of motion to compel answers to interrogatories); see also Busby v. Citizens Bank of Hapeville, 131 Ga.App. 738, 740-741, 206 S.E.2d 640 (1974) (physical precedent only) (reversing order of contempt against defendants in fi. fa. for failing to answer postjudgment interrogatories concerning finances).

The crucial distinction between those Georgia cases which automatically implicate the privilege and those which do not necessarily implicate it is that the State cannot compel a person to commit an act which will have the result of creating incriminating evidence against him, whereas the State may force a person to submit to procedures reasonably undertaken to recover existing evidence from him, even to the point of invading his body against his consent. See Creamer, supra, 229 Ga. at 518, 192 S.E.2d 350. The act of producing a document, financial or otherwise, does not in itself automatically create evidence by means of a testamentary act in the way that placing a foot in a shoeprint, responding to a pre-trial interrogatory, or testifying at trial does.² Instead, as here, where the trial court has found that the act of producing the information is not sufficiently incriminating to implicate the right against self-incrimination, the act may merely allow access to evidence already in existence, like the operation to recover a bullet in a defendant's body. Were we to accept the Dempseys' argument in this context, moreover, litigants in civil cases involving fraud — a large and important category indeed — could arguably always refuse to produce relevant financial documents on the ground that a looming criminal case raised the specter of self-incrimination by document. Thus we conclude that the Dempseys cannot successfully resist the production of the financial documents here because, however damaging the information in them might be, the act of producing such documents under the facts of this case does not implicate the privilege against self-incrimination. Creamer, supra, 229 Ga. at 518(3), 192 S.E.2d 350; see also Tennesco, supra, 144 Ga.App. at 48(3), 240 S.E.2d 586 (reversing trial court's denial of motion to compel answers to post-judgment interrogatories). The trial court did not...