Opinion
Case No. 8:02-cv-2052-T-23MSS
April 23, 2003
ORDER
THIS CAUSE comes on for consideration of Plaintiff's Supplemental Evidence in Support of Motion to Hold Defendants in Contempt (Dkt. 55) and Defendants' Notice of Assertion of Fifth Amendment Privilege (Dkt. 58).
The Undersigned held an evidentiary hearing on April 11, 2003, during which the parties presented testimony, documentary evidence, and oral argument regarding Plaintiff's Motion to Hold Defendants in Contempt (Dkt. 30), Plaintiff's Motion for Show Cause Order (Dkt. 31), and Defendants' Responses in opposition thereto (Dkts. 44, 45, 46). At the conclusion of the hearing, the Undersigned ordered Defendants to supplement their pleadings with any and all documents reflecting Defendants' receipt and deposit of funds from purported clients from December 19; 2002, the date of the preliminary injunction, to the date of production. (Dkts. 51 and 54.) The Undersigned ordered Defendants to file their supplementation under seal in camera, and ex parte no later than April 21, 2003. To the extent Defendants declined to provide the requested information on Fifth Amendment grounds, or for any other lawful reason, the Undersigned ordered Defendants to file a written notice to that effect no later than April 21, 2003.
Defendants now affirmatively refuse to produce the requested documents on the grounds that the Fifth Amendment privilege against self-incrimination precludes such production. (Dkt. 58.) Defendants cite no legal authority for the proposition that the Fifth Amendment privilege applies in the context of this case, such that the Court may determine the merits of Defendants' assertion of the privilege here. The Undersigned finds that Defendants' assertion of the Fifth Amendment privilege against self-incrimination as a basis to avoid production of any of the documents ordered to be produced is potentially inappropriate. See, e.g., In re Grand Jury Subpoena Dated Nov. 12, 1991, 957 F.2d 807 at 809-810 (11th Cir. 1992) (holding the Fifth Amendment does not extend to corporations and that an individual may not assert a personal Fifth Amendment privilege to avoid producing corporate documents in the individual's custody pursuant to a grand jury subpoena, even if such production would prove personally incriminating to the individual). Absent a full explication by Defendants of the factual and legal bases for their assertions of the Fifth Amendment privilege, however, it is impossible for the Court to determine the extent to which the privilege applies.
Accordingly, it is ORDERED that:
1. No later than April 28, 2003, Defendants shall file a Memorandum of Law setting forth in precise detail the legal and factual bases for their assertions of the Fifth Amendment privilege in relation to these documents. In so doing, Defendants shall explain the nature and number of documents potentially subject to the asserted privilege and the person or entity on whose behalf the privilege has been invoked. The Plaintiff shall file its response no later than May 7, 2003.
2. Defendants shall file a response to Plaintiff's Supplemental Evidence in Support of Motion to Hold Defendants in Contempt (Dkt. 55) no later than April 28, 2003.