Opinion
Civil action brought by United States against defendants to recover statutory penalty of $5000 under the Wool Products Labeling Act of 1939, § 6, 15 U.S.C.A. § 68d. Defendants moved for order vacating notice served by United States upon defendants' attorneys that United States would take defendants' depositions upon oral examination, on ground that defendants might not be compelled to testify against themselves. The District Court, Sugarman, J., held that an action ‘ to recover a penalty or to enforce a forfeiture’ comes within scope of rule relating to depositions pending action, but such rule is subject to paramount protection afforded by Fifth Amendment to the Constitution and hence defendants who timely made claim to privilege against self-incrimination were entitled to have notice vacated.
Notice vacated.
See also 15 F.R.D. 151.
Myles J. Lane, U.S. Atty., New York City, for plaintiff.
Friedman & Friedman, Brooklyn, N.Y., for defendants.
SUGARMAN, District Judge.
In a civil action brought by the United States against movants to recover a statutory penalty of $5,000 under the Wool Products Labeling Act of 1939, the United States served upon defendants' attorneys a notice that it would take defendants' depositions upon oral examination.
Defendants now move for an order vacating said notice on the ground that defendants may not be compelled to testify against themselves, this suit being one to recover a penalty or forfeiture and therefore quasi-criminal in nature.
Defendants presumably rely on the privilege against self-incrimination granted by Amendment V of the Constitution of the United States.
‘ No person * * * shall be compelled in any criminal case to be a witness against himself, * * *.’
An action ‘ to recover a penalty or to enforce a forfeiture’ comes within the scope of Fed.Rules Civ.Proc. rule 26, 28 U.S.C.A.Rule 26 is, however, subject to the paramount protection afforded by the Fifth Amendment to the Constitution. Defendants having made timely claim to their privilege, the notice is vacated.
Moore's Federal Practice, 2d Ed., Vol. 4, par. 26.05, p. 1032.
Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150; Johnson v. Donaldson, C.C.S.D.N.Y., 3 F. 22; Wigmore on Evidence, 3d Ed., Vol. VIII, § 2256, p. 330.
Settle order.