Master Key Litigation, In re, s. 73-1783
| Decision Date | 26 November 1974 |
| Docket Number | 73-1830,Nos. 73-1783,s. 73-1783 |
| Citation | 507 F.2d 292 |
| Parties | 1974-2 Trade Cases 75,395 In re MASTER KEY LITIGATION. States of ILLINOIS et al., Plaintiffs-Appellants and Appellees, v. Edward H. McCULLOCH, Witness-Appellee and Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Aaron M. Peck (argued) of McKenna, Fitting & Finch, Los Angeles, Cal., for plaintiffs-appellants and appellees.
Lee A. Freeman, Jr., of Freeman, Freeman, & Salzman (argued), Chicago, Ill., for witness-appellee and appellant.
Before BROWNING, CARTER and CHOY, Circuit Judges.
This appeal arises from the refusal of a witness, on grounds of self-incrimination, to answer questions upon an oral deposition taken in a civil antitrust action. Pursuant to Fed.R.Civ.P. 37, plaintiffs filed a motion to compel the testimony of the witness, Edward H. McCulloch. Pursuant to Fed.R.Civ.P. 26(c) and 30(d), McCulloch moved for a protective order terminating the deposition entirely. The district court denied both motions and both parties appealed. We affirm the denial of both motions.
Brought against four manufacturers of contract hardware, the antitrust suit alleges that the defendants illegally conspired to fix prices at inflated levels by allocating jobs, territories, and customers, and by jointly enforcing such restrictions through their distributors. During the years 1954-1965, McCulloch was national sales manager and later vice-president of sales for Russwin, a division of Emhart Corp., one of the defendants.
Plaintiffs first contend that McCulloch has no right to assert his privilege against self-incrimination because there is not the remotest chance that he could be criminally prosecuted for his part in the antitrust violations committed by his employer Emhart. They cite the oftstated rule that 'if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness,' the Fifth Amendment rule ceases to apply, its object being to protect the witness from participating in the establishment of his own guilt. Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 40 L.Ed. 819 (1896). Thus, if by reason of a grant of immunity or the statute of limitations, the only danger of prosecution is an imaginary one, the witness is not justified in refusing to answer. See e.g., United States v. Goodman, 289 F.2d 256, 259 (4th Cir. 1961), vacated on other grounds, 368 U.S. 14, 82 S.Ct. 127, 7 L.Ed.2d 75.
In the present case, however, McCulloch did not receive a grant of immunity or even informal assurances that he would not be prosecuted by federal or state governments. Furthermore, it appears that the statute of limitations for criminal conspiracy had not run at the time of the deposition, particularly since McCulloch had been working for one or more of the corporate defendants up until the time of the deposition and arguably could have remained a part of the conspiracy at the time.
Although the federal government and the states do not appear particularly interested in bringing criminal actions against the defendant corporations or their employees, the right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution. See Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Isaacs v. United States, 256 F.2d 654, 658 (8 Cir. 1958).
Plaintiffs also contend that, in voluntarily testifying to and admitting certain incriminating facts, McCulloch waived any privilege against testifying further concerning his involvement in the alleged conspiracy. Whatever may be the rule with respect to such a 'waiver' by a criminal defendant who elects to take the stand in his own behalf, see Brown v. United States, 356 U.S. 148, 155-156, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), an ordinary witness may 'pick the point beyond which he will not go,' and refuse to answer any questions about a matter already discussed, even if the facts already...
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