Assertion of Fifth Amendment Rights in Civil Proceedings

I was conflicted on two points while drafting this post.  First, was it a formal Monday post or a fun time Friday post?  I asked myself “what would Joe Francis do?” Friday it is.  Second, but far more entertaining, what title to use?  The formal title you see above or “Joe Francis, I recognized your foul stench when I was brought on board.”  Formal again won out, primarily for archival reasons and the limited number of people who might get the reference in the alternate title.

Joe Francis is the founder of the company behind the Girls Gone Wild videos.  He made some money from that work.  He came to Las Vegas to gamble but allegedly failed to pay up.  Wynn Las Vegas, the casino, sued him to recover on the debt.  08A566286.  As previously disclosed, I am but one of many attorneys who occasionally handle matters for Wynn, but had no involvement in Mr. Francis’ case.  After filing the suit, Wynn then sought to depose Mr. Francis.

On May 1, 2009 Wynn filed a motion for summary judgment detailing deposition shenanigans and requesting a $2,000,000 judgment.  Admittedly, there are two sides to every story, but here are the highlights of Wynn’s version.

After the deposition was noticed, Wynn was informed Mr. Francis would not attend because he was under house arrest in Los Angeles.  Wynn then renoticed the deposition but was told Mr. Francis could not enter the State of Nevada and the deposition would need to occur in California.  Wynn then noticed the deposition to occur at the Primm Valley Golf Club, just within California’s borders.  Mr. Francis then informed Wynn he could not come within ten miles of the Nevada border.  The deposition finally occurred in scenic Baker, California.

Mr. Francis then asserted his Fifth Amendment rights in response to nearly every question asked.

Q. Have you ever been to the Wynn hotel and casino?
A. I respectfully decline to answer based upon my right to remain silent as guaranteed . . . by the Fifth Amendment of the United States Constitution and the State of Nevada.
Q. Have you ever been in the state of Nevada before?
A. I respectfully decline to answer based upon my right to remain silent as guaranteed by the Constitutions of the United States of America and the State of Nevada.
Q. How much money do you believe that you owe the Wynn hotel and casino?
A. I respectfully decline to answer based upon my right to remain silent as guaranteed by the Constitutions of the United States and the State of Nevada. There’s a pending criminal action, sir.

…

Q. Are there any witnesses that have knowledge about your claimed pain, suffering, and emotional distress?
A. Right to remain silent.
Q. Are you married?
A. Right to remain silent.
Q. Does anyone live in your home with you?
A. Right to remain silent.
Q. Do you have a father?
A. I think everyone has a father. Yes.
Q. Okay. Is he living?
A. Right to remain silent.
Q. What’s his name?
A. Right to remain silent.
Q. Do you have a mother?
A. Yes. I believe everyone does.
Q. What’s her name?
A. Right to remain silent.

This went on for at least 168 pages.  Wynn’s motion also noted even Mr. Francis’ counsel stated on the record this practice might be in bad faith.  Counsel was wise to distance himself from his client’s decision as the district court ultimately granted summary judgment, stating “[t]hat’s the most ridiculous exercise of the 5th Amendment I think I’ve ever seen.”  Farting repeatedly during the deposition probably did not help Mr. Francis.  This ruling generated some local news coverage, an appeal and a published decision from the Supreme Court of Nevada.

The Supreme Court wrote “[t]he salient issue we consider is how, in response to a civil litigant’s request for accommodation of his or her privilege, the district court should proceed in order to prevent the opposing party from being unfairly disadvantaged.”  Francis v. Wynn Las Vegas, LLC, 127 Nev. Adv. Op. 60, 262 P.3d 705, 708 (2011).  “Following the lead of well-established federal precedent, we conclude that in response to a civil litigant’s request for accommodation of his or her privilege, the district court should balance the interests of the invoking party and the opposing party’s right to fair treatment.”  Id.

The court noted if the deponent can reasonably anticipate invoking Fifth Amendment rights, it is his burden to seek assistance from the court to protect these rights.  “Additionally, there is no indication in the record that Francis ever requested the district court to accommodate his privilege. He never sought, for example, to have his deposition sealed or to have reasonable limits placed on its scope.”  Id. at 712.  The court also criticized Mr. Francis’ later attempt to withdraw the privilege asserted.  “[T]he timing and context of Francis’s attempted withdrawal was problematic.”  Id. at 713.

Joe Francis: deposition baddie.