First Federal Sav. & Loan Ass'n of Salt Lake City v. Schamanek
| Decision Date | 01 May 1984 |
| Docket Number | No. 17910,17910 |
| Citation | 684 P.2d 1257 |
| Court | Utah Supreme Court |
| Parties | FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SALT LAKE CITY, Plaintiff and Respondent, v. Gail SCHAMANEK, Defendant and Appellant. |
Gary A. Frank, Murray, for defendant and appellant.
John W. Lowe, Salt Lake City, for plaintiff and respondent.
In this case, the trial court struck the defendant's answer for failure to respond to requests for discovery and entered a default judgment against the defendant for $6,122.79 plus interest and costs. The defendant's refusal to respond to deposition questions, requests for admissions and a demand for production of certain documents, including income tax returns, was based on her assertion of the privilege against self-incrimination. We affirm the trial court.
On August 8, 1980, Gail Schamanek entered First Federal and presented a cashier's check for $6,122.79. Pursuant to her instructions, $6,000 was credited to her account, and $122.79 was paid to her in cash. At the close of that day, the First Federal teller was unable to locate the cashier's check and solicited Schamanek's help. Upon being contacted by the bank, Schamanek refused to furnish any information that might be used in trying to trace the check, such as the identity of the bank that issued the check or the person who had purchased it. This suit was filed on the basis of plaintiff's information and belief that Schamanek, after cashing the check, retrieved the check from the teller's cage while the teller's attention was diverted. The amended complaint alleged:
[A]fter the check was delivered by defendant [Schamanek] to the teller defendant wrongfully and surreptitiously and unknown to the teller retrieved said check [previously credited to defendant's account], cashed it, and received the proceeds therefrom.
Schamanek's answer denied the allegations. In response to Schamanek's interrogatories, First Federal amplified the factual basis of its claim for relief:
The check was given to plaintiff's teller. While the teller was obtaining theater tickets which defendant wanted to buy, she left the check and other papers on the counter, to which defendant had access. The teller, immediately after serving the next customer, discovered the check was missing. The teller and other of plaintiff's personnel asked defendant about the check. She gave vague responses and after repeated inquiries refused to give plaintiff information in relation thereto, to enable plaintiff to identify who drew the check, on what bank, and who cashed the check. She is still refusing, ergo she had the opportunity to take the check back and did so.
First Federal submitted requests for admissions pursuant to Rule 36 of the Utah Rules of Civil Procedure and for production of documents pursuant to Rule 34, and also sought to depose Schamanek. Schamanek refused to respond to the requests for admission or production of documents. She also refused to answer deposition questions, on the ground that the answers might tend to incriminate her. However, a transcript of the deposition is not a part of the appellate record, and there is nothing in the record to indicate what questions she declined to answer.
First Federal obtained an order to compel defendant to submit to discovery. After Schamanek's continued refusal to do so, the trial court struck her answer pursuant to Utah R.Civ.P. 37 on the grounds that Schamanek failed to respond to questions at her deposition, to respond to requests for admissions, and to produce documents. Accordingly, the trial court entered a default judgment.
It has long been settled that the privilege against self-incrimination may be invoked in a civil proceeding under both the Fifth Amendment of the United States Constitution and Article I, § 12 of the Utah Constitution. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); Affleck v. Third Judicial District Court, Utah, 655 P.2d 665 (1982); State v. Byington, 114 Utah 388, 200 P.2d 723 (1948).
The privilege may be asserted in civil discovery proceedings to refuse to answer Rule 33 interrogatories, e.g., Geldback Transport Inc. v. Delay, Mo., 443 S.W.2d 120 (1969); questions posed in depositions, e.g., Affleck v. Third District Court, supra; and Rule 34 demands for production of documents, e.g., Giles v. Doggett, Okla., 500 P.2d 574 (1972). Because admissions made pursuant to Rule 36 may be used only in the then-pending proceeding, 1 there is a division of authority as to whether the privilege may properly be interposed against requests for admissions. Some courts refuse to recognize the privilege on the ground that Rule 36(b) prevents the use of admissions in criminal prosecutions. 2
In our view, the interests that the privilege against self-incrimination were designed to safeguard cannot be adequately protected by compelling a person to trade that right for the attenuated protection of Rule 36(b). Full and complete protection of that right can be afforded only if a party may decline to answer by interposing an objection to requests for admissions. 3 As one commentator has stated:
Three cases state or imply that, since an answer to a request [for admission] cannot be used as evidence in a criminal case, the answer cannot be incriminating, and therefore a request cannot be objectionable on self-incrimination grounds. 4 This conclusion is erroneous. The privilege may be claimed unless the witness is immunized against future prosecution based on knowledge or information obtained as a result of his testimony. 5 Rule 36(b) [of the Federal Rules of Civil Procedure] does not confer this kind of immunity and consequently would not preclude a claim of privilege if the litigant's answer might cause criminal charges to be brought against him.
Finman, "The Request for Admissions in Federal Civil Procedure," 71 Yale L.J. 382, 384-85 (1962) (footnotes in original).
The privilege may be invoked if an answer might incriminate and there is some possibility that a criminal action might be filed. See Rogers v. United States, 340 U.S. 367, 374-75, 71 S.Ct. 438, 442-43, 95 L.Ed. 344 (1951); United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1958); Camelot Group, Ltd. v. W.A. Krueger Co., 486 F.Supp. 1221, 1228 (S.D.N.Y.1980). Although criminal charges need not be pending, Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), the possibility of a criminal prosecution must be a "real danger," not a "mere imaginary possibility." Rogers v. United States, 340 U.S. at 374-75, 71 S.Ct. at 442-43. Accord Affleck v. Third Judicial District Court, Utah, 655 P.2d 665 (1982). In this case, the possibility of a criminal prosecution against Schamanek exists, and that possibility is not disputed by First Federal.
Whether the trial judge ruled properly in this case turns on (1) whether Schamanek properly invoked the privilege against the questions asked and the documents demanded and (2) whether the trial court's striking of Schamanek's pleadings was a permissible sanction for failure to respond.
Except in unusual circumstances, the privilege against self-incrimination must be invoked in response to each specific question propounded or document or other physical evidence sought, or the privilege is waived. It may not generally be asserted as a blanket response to all discovery. Affleck v. Third Judicial District Court, supra. See United States v. Moore, 682 F.2d 853, 856 (9th Cir.1982); Eastham v. Arndt, 28 Wash.App. 524, 532 624 P.2d 1159, 1165 (1981). But see United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980), which sustains a blanket invocation of the privilege because the party could "legitimately refuse to answer essentially all relevant questions," quoting United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir.1975). As to each question asked and each document sought, the court must decide if a refusal to respond is justified. Rogers v. United States, supra, 340 U.S. at 374, 71 S.Ct. at 442.
In ruling on the propriety of invoking the privilege, whether under the State or Federal Constitution, a court should construe the scope of the privilege liberally and not in a hostile or niggardly spirit. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). The standard to be applied in such cases was stated in United States v. Hoffman, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818-19, 95 L.Ed. 1118 (1951):
The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embrace those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.... 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." [Citations omitted; emphasis added.]
See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In applying this test, the judge should not deny the privilege unless it is " '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." Hoffman, supra, 341 U.S. at 488, 71 S.Ct. at 819, quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881).
First Federal argues that several of the requests for admissions, requests to produce, and questions put to Schamanek at her deposition were not incriminating. 6 The critical requests for admissions essentially sought to establish that Schamanek gave First...
To continue reading
Request your trial
-
Criminal Investigation, 7th Dist. Court No. CS-1, Matter of
...conviction secured. In re Gault, 387 U.S. 1, 47-48, 87 S.Ct. 1428, 1454-55, 18 L.Ed.2d 527 (1967); First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1261-62 (Utah 1984); Affleck v. Third Judicial Dist. Court, 655 P.2d 665, 666-67 (Utah 1982). On the basis of these precedents alone, ......
-
Morton v. Continental Baking Co.
...party willfulness, bad faith, or fault, Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah 1995); First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1266 (Utah 1984); accord Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 961 (Utah.Ct.App.1989), or "persistent dilatory tactics ......
-
Butterfield v. State
...a similar issue in State v. Byington, 114 Utah 388, 200 P.2d 723 (1948), overruled on other grounds, First Fed. Sav. & Loan Ass'n of Salt Lake City v. Schamanek, 684 P.2d 1257 (Utah 1984). There, the defendant was compelled by the trial judge to testify at a contempt proceeding, and his tes......
-
American Fork City v. Crosgrove, 19174
...Page 1076 compulsory production of private papers that might be incriminating. First Federal Savings and Loan Ass'n v. Schamanek, Utah, 684 P.2d 1257 (1984). Fundamentally, the privilege stakes out an area of personal privacy where the State simply may not enter. In essence, the privilege a......
-
CHAPTER 10 - 10-5 Responses to Requests for Admission
...against self-incrimination to justify his refusal to respond to requests for admission."); First Fed. Savs. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1262 (Utah 1984) ("Full and complete protection of that right can be afforded only if a party may decline to answer by interposing an objecti......
-
How to . ..
...37(d). [15] Rule 37(d). See Darrington v. Wade, 812 P.2d 452, 457 (Utah App. 1991). See also First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1267 (Utah 1984) (striking pleadings was appropriate sanction for failure to appear and answer deposition questions). [16] Rule 30(b)(1). [1......