Giles v. Doggett

• Decision Date: 06 June 1972
• Docket Number: No. 45662,45662
• Citation: 500 P.2d 574
• Parties: J. C. GILES, Petitioner, v. Lowell DOGGETT, Judge of the District Court in Kay County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 574

500 P.2d 574

J. C. GILES, Petitioner, v. Lowell DOGGETT, Judge of the District Court in Kay County Oklahoma, Respondent.

No. 45662.

Supreme Court of Oklahoma.

June 6, 1972.

Rehearing Denied Sept. 11, 1972.

Armstrong, Burns, Baumert & Drake, by J. E. Burns, Ponca City, for petitioner.

R. R. Linn, Edwin L. Gorham, Ponca City, for respondent.

McINERNEY, Justice.

In this original proceeding, J. C. Giles petitions this Court for a writ of prohibition against the Honorable Lowell Doggett, Judge of the District Court in Kay County, Oklahoma. Petitioner seeks to prohibit Judge Doggett from enforcing an order directing petitioner to produce certain documents, books and records for inspection and copying. We grant the petition and prohibit enforcement of the order.

The order resulted from pre-trial discovery proceedings in an action commenced by Continental Oil Company against petitioner. Petitioner had been an employee of Continental for 26 years and had been Plant Engineer for the last 16 years. Continental seeks to recover monies allegedly received by petitioner as a result of his position with the Company. After alleging that petitioner worked with and supervised contractors performing construction and maintenance work for the Company, Continental alleged:

'(T)he defendant (petitioner), . . . while acting in his position . . ., has demanded and received from various and potential contractors large sums of money. . . . The various contractors and potential contractors were induced to make such payments to the defendant due to threats by defendant to prevent said contractors and potential contractors from obtaining work from the plaintiff (Continental) or to prevent the acceptance of and/or payment for work already performed.'

Based on the provisions of 12 O.S.1971, § 548, Continental filed a motion requesting that the trial court require petitioner to produce for inspection and reproduction: copies of income tax returns and work sheets; bank account records; contracts, books and records disclosing transactions with contractors that performed work for Continental; and certain documents showing ownership of real and personal property. Petitioner objected to the production of the documents, books and records on the ground that they might tend to incriminate him. The trial court ordered production of the requested documents, books and records.

Under the provisions of 12 O.S.1971, § 548, a trial court may order the production of documents, books, records and other evidentiary items, 'not privileged.' In the present case, petitioner has asserted the privilege against self-incrimination provided by Article 2, Section 21, of the Oklahoma Constitution and the Fifth Amendment to the United States Constitution. Article 2, Section 21, of the Oklahoma Constitution provides in part:

'No person shall be compelled to give evidence which will tend to incriminate him. . . .'

The Fifth Amendment to the United States Constitution provides in part:

'(N)or shall (any person) be compelled in any criminal case to be a witness against himself. . . .'

Considering the circumstances of this case, are petitioner's documents, books and records protected by the privilege against self-incrimination?

The privilege against self-incrimination is not limited to criminal prosecutions, but may be invoked in any proceeding if the evidence sought might tend to subject one to criminal responsibility. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158, 161 (1924); Rice v. State Board of Medical Examiners, 208 Okl. 440, 257 P.2d 292 (1953); Layman v. Webb, Okl.Cr., 350 P.2d 323, 332--333 (1960); Akers v. Fuller, 312 Ky. 502, 228 S.W.2d 29 (1950); 23 Am.Jur.2d, Depositions and Discovery, § 179, at 522; 58 Am.Jur., Witnesses, § 45, at 49.

In Rice v. State Board of Medical Examiners, 208 Okl. 440, 257 P.2d 292 (1953), the State Board of Medical Examiners sought to enjoin Rice from practicing medicine without a license. After the suit was commenced, Rice was served a subpoena duces tecum commanding him to produce his records of patients treated and treatment administered. Rice moved to quash the subpoena on the ground that the records might incriminate him. The trial court overruled the motion to quash, and Rice appealed to this Court. Upholding Rice's assertion that he could not be required to produce his records in derogation of his privilege against self-incrimination, the Court reversed with directions to sustain the motion to quash the subpoena.

In Layman v. Webb, Okl.Cr., 350 P.2d 323 (1960), the Laymans were subpoenaed to appear before a grand jury and to produce their partnership records in connection with an investigation of the construction of a highway. There was a possibility of a law violation related to the awarding of the cement contract to the Laymans' partnership. The Laymans refused to testify or produce records on the ground that their answers and records might tend to incriminate...