Dunkin v. Citizens Bank of Jonesboro, 86-225

• Decision Date: 06 April 1987
• Docket Number: No. 86-225,86-225
• Citation: 291 Ark. 588,727 S.W.2d 138
• Parties: Kathy DUNKIN, Appellant, v. CITIZENS BANK OF JONESBORO, Administrator of the Estate of Everett Ercell Dunkin, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 138

727 S.W.2d 138

291 Ark. 588

Kathy DUNKIN, Appellant, v. CITIZENS BANK OF JONESBORO, Administrator of the Estate of Everett Ercell Dunkin, Deceased, Appellee.

No. 86-225.

Supreme Court of Arkansas.

April 6, 1987.

Michael Everett, Lepanto, Barrett, Wheatley, Smith & Deacon by Paul D. McNeill, Jonesboro, for appellant.

Lohnes T. Tiner, Harrisburg, Chet Dunlap, Trumann, for appellee.

HOLT, Chief Justice.

At issue in this appeal is the obligation of a defendant in a wrongful death case to respond to interrogatories or to assert properly her objection on the basis that her responses might be self-incriminating. The trial court ordered the defendant, who is the appellant here, to respond, and, when she refused he struck her answer in which she had pled self-defense. This appeal is from the order striking the answer. We affirm.

The appellant, Kathy (Cooper) Dunkin, married Everett Ercell Dunkin on August 23, 1984. Seventeen days later they separated and on September 15, 1984, Mr. Dunkin was shot and killed at Mrs. Dunkin's house in Trumann, Arkansas. The administrator of Mr. Dunkin's estate, the appellee, brought this action alleging Mrs. Dunkin negligently shot and killed Mr. Dunkin and seeking $320,000 in damages. Mrs. Dunkin in her formal answer denied that she was negligent but admitted that she shot and killed Mr. Dunkin and stated that he was killed "in defense of her own person and that of her brother, Archie Dale Cooper."

The administrator propounded twenty-one interrogatories to Mrs. Dunkin on October 9, 1985. No action was taken and on January 31, 1986, the administrator filed a motion to compel answers. On March 6, 1986, some 148 days after they were submitted, Mrs. Dunkin answered three of the interrogatories and refused to answer the rest, asserting her fifth amendment constitutional right against self-incrimination. The administrator filed a second motion to compel answers or, in the alternative, to strike Mrs. Dunkin's answer to the complaint. A hearing was held April 25, 1986. Mrs. Dunkin and her attorney did not appear and the court found that she should not be compelled to answer interrogatories four and five, but ordered her to answer the rest within twenty days. When Mrs. Dunkin still did not answer, the administrator filed a motion seeking sanctions. The court granted the motion, striking Mrs. Dunkin's answer. The court denied a subsequent motion by Mrs. Dunkin to reconsider its previous orders.

On appeal, Mrs. Dunkin maintains the trial court erred in ordering her to answer incriminating interrogatories in violation of her fifth amendment privilege against self-incrimination, and that the order striking her answer was too severe of a sanction.

Authority for the trial court's action can be found in our rules of civil procedure. Arkansas R.Civ.P. 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions,..." Ark.R.Civ.P. 37(d) states that if a party fails to serve answers or objections to interrogatories "the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule." Rule 37(b)(2)(C) then permits the court to enter an order "striking out pleadings or parts thereof."

A party claiming a privilege to refuse to answer interrogatories may obtain a protective order under Rule 26(c), which would protect the party from discovery or from inquiry into certain matters. Rule 37(d) states that the failure to serve answers or objections to interrogatories "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c)." (emphasis added).

Mrs. Dunkin bases her failure to answer the interrogatories on her assertion of the privilege against self-incrimination. The privilege applies alike to civil and criminal proceedings, whenever the answer might tend to subject the party giving it to criminal responsibility. Campbell v. Gerrans, 592 F.2d 1054 (9th Cir.1979), quoting McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). While parties may not obtain discovery under Rule 26(b)(1) regarding privileged matters, a privilege is only safeguarded if the proper procedures are followed in a timely fashion.

Other courts, too, have shown concern for the time and manner in which the assertion of the privilege is made during the discovery process. Wolfson, Civil Discovery & the Privilege Against Self-Incrimination, 15 Pac.L.J. 785, 793 (1984). "Assertion of the privilege can preclude an opposing party from obtaining relevant and critical discovery. The courts, therefore, have insisted that the privilege be validly taken, asserted in a timely manner, and limited to information that clearly falls within its ambit." Id. Failure to object to a discovery request within the time fixed by the applicable discovery rule acts as a waiver of all available objections, even if...