Opinion
TH 97-287-C-T/F
August 12, 2003
ENTRY DISCUSSING OBJECTION TO MAGISTRATE JUDGE'S ENTRY ON MOTION FOR ORDER OF INSPECTION
On March 24, 2003, the plaintiffs/counterclaim defendants, Marvin L. Barmes and Barbara J. Barmes (hereinafter, the "Barmeses") and third-party defendants, Sandbar Real Estate Trust, Sandbar Wholesale Trust, James Rabold, Kim Hall Barmes, and Susan Thomas Barmes (hereinafter, "Sandbar") sought through counsel to inspect and copy business documents which prior to August 13, 2001 had been in the possession of the Barmeses. The documents were seized by the United States Drug Enforcement Agency on August: 13, 2001.
Magistrate Judge William T. Lawrence granted the motion to inspect documents on April 29, 2003, but the United States has filed an Objection the decision.
The court, having considered the United States' Objection and all pertinent matters, and being duly advised, finds that the Entry on Plaintiffs/Counterclaim Defendants' and Third-Party Defendants' Motion for Order of Inspection should be reversed and the United States' Objection to the Magistrate's Entry should be sustained.
Discussion
The Barmeses filed their complaint in October, 1997. In March, 1999, the United States served discovery upon the Barmeses including interrogatories, a request for the production of documents and a request for admissions. The Barmeses objected and refused to respond to every request and question. During the summer of 2001, after the United States' motion to compel discovery was granted, the Barmeses replied to discovery by invoking the Fifth Amendment privilege against self-incrimination. They did the same during their depositions. The documents and information sought in discovery pertained to aspects of the Barmeses' business including but not limited to, whether the workers in the Barmeses' businesses were properly classified as "employees" or "independent contractors."
Soon after, Sandbar responded to discovery stating that they did not have the documents sought.
In their reply to the government's opposition to the motion for order of inspection, the Barmeses assert that they seek the opportunity to "review the documents" that the "Barm[es]es' counsel believes it may need to tender to the court for consideration of the pending motion for summary judgment." They assert that invoking the Fifth Amendment does not prohibit a party from submitting all evidence. Certainly, the Barmeses and Sandbar are not prohibited from submitting evidence. The question, however, is whether they should be allowed to prolong the summary judgment process by inspecting and copying business records currently in the possession of the United States which are related to the Barmeses' invocation of the Fifth Amendment during written and oral discovery.
The Barmeses, counsel states that during discovery the Barmeses were unrepresented, possibly suggesting that the Barmeses should be allowed some special deference due to their former pro se status. The "liberal construction" afforded the pleadings of pro se litigants, however, cannot be used as a mechanism for avoiding federal rules of evidence and civil procedure. See Averhart v. Arrendondo, 773 F.2d 919 (7th Cir. 1985) (the generous treatment accorded pro se litigants does not exempt them from both the substantive and procedural rules of law and does not authorize a separate set of rules for them).
Rule 26(b)(1) allows discovery of any nonprivileged matter "which is relevant to the subject matter involved in the pending action." This broad rule does have boundaries, including that discovery of matters not "reasonably calculated to lead to the discovery of admissible evidence" is outside its scope. Oppenhelmer Fund v. Sanders, 437 U.S. 340, 351-52 (1978); Natta v. Zletz, 405 F.2d 99, 101 n. 2 (7th Cir. 1968), cert. denied, 395 U.S. 909(1969). Thus, if discovery will not lead to admissible evidence, that information is outside the scope of the broad discovery rule. In the usual case, inadmissible evidence is not easily identified during discovery; however, in a case where a party invokes his Fifth Amendment privilege against self-incrimination during the discovery, evidence which is unavailable for use during summary judgment and trial comes into sharp focus,
A civil litigant is free to invoke his Fifth Amendment privilege on an issue, but once invoked to oppose discovery, the privilege cannot be tossed aside to support a party's assertions during trial or during summary judgment proceedings. S.E.C. v. Zimmerman, 854 F. Supp. 896 (N.D.Ga. 1993) (citations-omitted), Generally then, documents and information withheld during discovery on the basis of Fifth Amendment privilege are inadmissible at trial and during summary judgment, A litigant thus faces the dilemma of choosing silence or presenting a defense. United States v. Rylander, 460 U.S. 752, 759 (1983); Williams v. Florida, 399 U.S. 78, 83-84 (1970). The scope of inadmissible evidence has also been of concern to courts and the Sixth Circuit noted that "when the issue is whether a court may impose broad limits on the admissibility of evidence, the easels permit only limits directly related to the scope of the asserted privilege." Traficant v. Commissioner of I.R.S., 884 F.2d 258, 265 (6th Cir. 1989) (citations omitted); see Dunkin' Donuts Inc. v. Taseski, 47 F. Supp.2d 867, 872 (E.D.Mich. 1999) (when a litigant claims his Fifth Amendment privilege, he will be barred thereafter fro hi introducing other evidence on that issue); U.S. v. All Assets Equip, of West Side Bldg., 843 F. Supp. 377, 382-83 (N.D.Ill. 1993), aff'd, 58 F.3d 1181 (7th Cir. 1995) (holding that district court need not consider evidence claimant presented to show that property subject to forfeiture proceedings was not acquired with proceeds of claimant's husband's drug trafficking activity, where claimant refused, on Fifth Amendment grounds, to answer government's deposition questions concerning same topics).
In the present case, the Barmeses "took the Fifth" on every question asked in oral or written form and on every request for documents during discovery. The Barmeses asserted their Fifth Amendment privilege to the discovery of many topics including, but not limited to, documents regarding individuals who had some employment relationship with the Barmeses or Sandbar, the identity of individuals who had an employment relationship with the Barmeses or Sandbar during the relevant tax period, the changes which would indicate that the Barmeses' employees became independent contractors after October 1995, information regarding whether workers sold "consumer products" and whether workers were "direct sellers", information regarding the hiring, training and firing of workers, information about the compensation of workers and whether workers were compensated for business expenses, information regarding the firing of particular workers and whether workers received I.R.S, Form 1099, information regarding the relationship between the Barmeses and Sandbar and the transfer of the Barmeses' property to Sandbar, and information about the payment received by the Barmeses from Sandbar as well as other information about Sandbar. Documents and information related to the above information have been rendered irrelevant to this litigation by the Barmeses' invocation of the Fifth Amendment during discovery. Thus, to the extent that the Barmeses seek to inspect documents which they withheld during discovery based on the assertion of their Fifth Amendment privilege against self-incrimination or which they refused to answer questions about based on the assertion of their Fifth Amendment privilege, the United States' objection to the entry on the motion for order of inspection is sustained, and the motion for order of inspection is denied because such inspection will not lead to admissible evidence at anytime in this action. Further, because the documents sought to be inspected cannot be used by the parties seeking the inspection, the sole effect of the inspection would be unnecessary delay to a six-year old case, which the court will not sanction.
In addition, to the extent that the Barmeses seek to inspect documents other than those which they withheld during discovery based on the assertion of their Fifth Amendment privilege against self-incrimination or which they refused to answer questions about based on the assertion of their Fifth Amendment privilege, the United States' objection to the entry on the motion for order of inspection is sustained, and the motion for order of inspection is denied because the Barmeses and Sandbar have failed to comply with Federal Rules of Civil Procedure, Rule 56(f). See Otto v. Variable Annuity Life Ins., 814 F.2d 1127, 1138 (7th Cir. 1986) ("Rule 56(f) permits a party who has no specific evidence contradicting an opponent's motion for summary judgment to survive the motion by both presenting valid reasons for the lack of proof and showing how postponement of a ruling will enable the non-movant to rebut the mutant's showing."), cert. denied, 486 U.S. 1026 (1988); see also Banks v. Mannoia, 890 F. Supp. 95, 97 (N.D.N.Y, 1995) (in order for an affidavit for further discovery to be sufficient, it must include the nature of the uncompleted discovery, show how facts sought are reasonably expected to create genuine issues of material fact, detail what efforts the affiant has made to obtain those facts, and explain why those efforts were unsuccessful during regular discovery).
While a claimant is entitled to invoke the Fifth Amendment, doing so does not relieve him of his burden of proof, U.S. v. 15824 West 143rd Street, Lockport, Illinois, 736 F. Supp. 882, 886 (N.D.Ill. 1990), With this in mind, the court turns to the development of the United States' motion for summary judgment. The Barmeses and Sandbar shall have through September 4, 2003, in which to respond to that motion. The defendants shall then have through September 19, 2003, in which to reply, No modification of this briefing schedule should be anticipated.
IT IS SO ORDERED.