UCL "unlawful" prong hypothetical

A reader posits a hypothetical case in which the plaintiff's UCL "unlawful" prong claim is predicated on an alleged violation of a criminal statute. In response to the plaintiff's initial round of written discovery, the defendant asserts the Fifth Amendment. What do you think about invoking the Fifth Amendment in a UCL case, and how should the plaintiff respond?

Comments

[Bill]

If the defendant refused to answer the questions and objected on Fifth Amendment grounds than as the plaintiff's attorney I would move at trial to exclude any evidence that the defendant would seek to use that they had not disclosed as evidence. Under California law, information protected by privilege is typically precluded from being used as evidence. A&M Records, Inc. v. Heilman (1977) 75 Cal. App.3d 554, 566

The use of the privilege could, in a weaker case, make the plaintiff more susceptible to a summary judgment motion. However, I think, as long as there was other evidence to support the complaint, that it would survive an MSJ even though discovery had been stymied by the defense's claim of Fifth Amendment privilege.

[Ron]

While Bill is correct (Blackburn v. Kelso (93) 21 CA4th 414, 425-6; Marriage of Hoffmeister (84) 161 CA3d 1163, 1169), you still need to file a motion to compel. Blanket self-incrimination claims are insufficient and you need a court determination on the propriety of the response. See Fuller v. Sup. Ct. (01) 87 CA4th 299, 305. Also depends on what kind of discovery. See US v. Doe (84) 465 US 605, 610 [documents different than irogs, ie is testimonial privilege only]. Further Corporations cannot claim the privilege. Braswell v. US (88) 487 US 99, 104. Nor does it apply to records that are required to be kept by law. Craib v. Bulmash (89) 49 C3d 475, 489. Hope this helps.

[John Hurley]

Ron is correct. Move to compel so that you can hvae the COurt test the propriety of the invocation of privilege. Assuming the privilege was properly asserted, since the UCL claim is a civil action, you can seek to have the court draw an adverse inference from the invocation of privilege.

[Kimberly]

Thanks to everyone for sharing your thoughts. I hope the reader who submitted the hypothetical will find this discussion useful.