United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN CHIEF JUDGE.
matter is before the Court upon Plaintiff United States of
America's Motion to Strike Claim and Answer for Failure
to Respond to Discovery Requests (Doc. 40). This is a civil
forfeiture action. For the following reasons, the
Government's motion is DENIED.
January 11, 2018, this Court held a case management
conference and set a non-expert discovery deadline of May 15,
2018. Thereafter, on January 25, 2018, the Government served
interrogatories and requests for production of documents on
Claimant Samson Primm. Claimant's responses were due on
February 28, 2018. Claimant did not respond to the discovery
requests and instead filed an “Opposition to
Government's First Set of Interrogatories and Request for
Production of Documents.” In his opposition, Claimant
implied that he was not required to respond to the
Government's discovery requests until the Government
survives his motion to suppress and proves that the property
at issue is subject to forfeiture. He also filed an affidavit
stating that he was asserting his Fifth Amendment right in
response to discovery but that also implied that he was
reserving the right to supplement his discovery responses
after the Court ruled on the motion to suppress and
determined forfeitability of the seized property. The Court
issued an order on March 9, 2018, explaining that the law did
not support Claimant's assertion that he can wait to
respond to discovery in this way and that discovery would
proceed as scheduled. Because it was not clear if Claimant
was asserting a blanket Fifth Amendment privilege to the
Government's discovery requests, the Court ordered
Claimant to clarify, within seven days, whether he was doing
so or if he instead intended to respond to the outstanding
March 16, 2018, Claimant filed his response to the
Court's order in which he stated that he would respond to
any question that would not tend to incriminate him:
“So let's be clear, the Claimant will answer any
and all questions put to him provided the answer to the
questions will not tend to incriminate him.” (Doc. 34,
at 1). He ended his brief, however, by once again suggesting
that he did not need to respond to any discovery until after
the government proves that the items at issue were lawfully
seized and are forfeitable to the government. (Id.
at 4). Claimant did not file any responses to the
Government's discovery requests.
March 21, 2018, the Government filed a motion to compel
discovery. This Court granted the motion, explaining that the
Federal Rules of Civil Procedure applied to the discovery
dispute and that there is no authority for Claimant's
position that he need not respond to any discovery requests
until the Government shows that the property was lawfully
seized and is subject to forfeiture. It ordered Claimant to
respond to the Government's discovery requests on or
before April 27, 2018. The Court noted that, “[i]f
Claimant wishes to assert the Fifth Amendment privilege
against self incrimination in response to the discovery
requests, he is free to do so.” (Doc. 39, at 3).
Claimant did not file any responses by the date ordered.
Government filed its motion to strike now pending before the
Court on May 7, 2018.
the Court to strike Claimant's verified claim and answer
as a discovery sanction for failing to respond to discovery.
(Doc. 40, at 5) (quoting Federal Rule of Civil Procedure
37(b)(2)(A) (iii) (“If a party...fails to obey an order
to provide or permit discovery..., the court where the action
is pending may issue further just orders. They may include
the following...striking pleadings in whole or in
part[.]”). Claimant filed an opposition to the motion
to strike in which he states:
If one thing here seems clear enough, it has to be that
counsel for the Claimant is ill-equipped to make a simple
point. This must be so, otherwise counsel would have by now
made it clear that his client has been convinced, that his
Fifth Amendment Right of self-incrimination applies and works
even in the Northern District of Ohio, and that he has the
right to assert it in this Forfeiture case. Indeed, he has
done so with reference to all questions put to him, and, he
will continue to do so. To be sure, he has also asserted his
Fifth Amendment privilege with reference to his being
compelled to produce any documents.
42, at 1).
is absolutely correct that his filings have not made clear
that he intended to assert a blanket Fifth Amendment
privilege in response to discovery. Both this Court and the
Government acknowledged that he had a right to do so but
explained on several occasions that Claimant's filings
did not make clear that this was his intent. Indeed, this
Court ordered him to clarify whether he intended to invoke
the Fifth Amendment in response to all discovery. Rather than
clarifying his intent, Claimant's filings continued to
confuse the issue by suggesting that he would respond to all
non-incriminating questions but also stating that he would
assert the Fifth Amendment until the Government proved that
the items were lawfully seized and subject to forfeiture.
Complicating matters even more, he failed to comply with the
Court's direct order to respond to the Government's
discovery requests by April 27, 2018.
an abundance of caution, however, the Court will construe
Claimant's response to the Government's motion to
strike as a response to the Government's discovery
requests. In it, he has finally made sufficiently clear that
he has asserted the Fifth Amendment in response to all of the
Government's discovery requests. As the Court has said
several times, that is his right. Of course, discovery is now
closed, and as this case proceeds, he must bear the
consequences of having invoked the Fifth Amendment rather
than respond to any of the Government's discovery
requests. See, e.g., U.S. v. $110, 873.00 in U.S.
Currency, 159 Fed.Appx. 649, 652-53 (6th Cir. 2005)
(“A litigant may not invoke the Fifth Amendment to
avoid answering questions in discovery, then cry foul when
the absence of evidence in favor of the litigant requires
summary judgment to be entered against him.”);
United States v. 4003-4005 5th Ave., 55 F.3d 78,
84-85 (2d Cir.1995) (“If it appears that a litigant has
sought to use the Fifth Amendment to abuse or obstruct the
discovery process, trial courts, to prevent prejudice to
opposing parties, may adopt remedial procedures or impose
sanctions.”); U.S. v. $148, 840.00 in U.S.
Currency, 521 F.3d 1268, 1277 (10th Cir. 2008)
(“[A] district court may strike conclusory testimony if
the witness asserts the Fifth Amendment privilege to avoid
answering relevant questions, yet freely responds to
questions that are advantageous to his cause.”).
Court is disturbed by the amount of time that both the Court
and the Government have had to expend on this issue when
Claimant could have filed a response months ago that made
clear that he was invoking the Fifth Amendment in response to
all discovery. Nevertheless, Court finds that striking his
claim and answer would be too harsh of a sanction in these
circumstances. Thus, the ...