National Coalition on Black Civic Participation v. Wohl
This text of National Coalition on Black Civic Participation v. Wohl (National Coalition on Black Civic Participation v. Wohl) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
BANA EEUIN ELECTRONICALLY FILED ( J DOC #: — DATE FILED: __19/5/23 orrick Defendants are directed to October 4, 2023 respond to Pl aintiffs' Orrick, Herrington & Sutcliffe LLP letter within three (3) 51 West 52nd Street By ECF Says of the date of this □□ euesooo raer. orrick.com The Honorable Victor Marrero JLZEQ United States District Court vetea. 5 0 top 500 Southern District of New York _——— oo Amy Walsh 500 Pearl Street E awalsh@orrick.com D +1 212-506-3609 New York, NY 10007-1312 F 41 212.806.5151
Re: National Coalition on Black Civic Participation et al. v. Wohl et al., No. 20-cv-8668 Dear Judge Marrero: Plaintiffs write to ask the Court to order Defendants to disclose by November 4, 2023, whether they intend to testify at trial. During discovery, Plaintiffs were unable to obtain Defendants’ testimony during their depositions because Defendants invoked their Fifth Amendment rights in response to nearly every question. However, since that time, Defendants have suggested that they might testify at trial. To prevent unfair surprise at trial, the Court should set a deadline by which Defendants either withdraw their Fifth Amendment assertions or else be barred from testifying. If Defendants choose to withdraw their Fifth Amendment assertions, Plaintiffs should have the opportunity to re-depose them prior to trial on the issue of damages in order to obtain the discovery to which Plaintiffs otherwise would have been entitled in preparation for trial. Background. In their depositions, Defendants Wohl and Burkman declined to answer nearly every substantive question, citing their Fifth Amendment right against self-incrimination. Yet in meeting and conferring about preparing the proposed joint pretrial order (Dkt. No. 281), Defendants’ counsel represented on June 14, 2023 that he did not know whether his clients would testify. In addition, in opposing Plaintiffs’ motions in /imine, Defendants contended that the record on summary judgment “included Defendants who were taking the fifth, who had ongoing criminal litigation to contend with. This is no longer the case.” Dkt. No. 303 at 5 (emphasis added). On August 8, 2023, Plaintiffs’ counsel asked Defendants’ counsel to confirm by August 15, 2023, whether Defendants intended to withdraw their assertions of their Fifth Amendment privilege. Defendants’ counsel did not respond. On October 3, 2023, Plaintiffs’
orrick Hon. Victor Marrero October 4, 2023 Page 2 counsel again asked Defendants’ counsel the same question. Defendants’ counsel again did not respond. See Ex. 1. Requested Disclosure. Given the need to prepare for trial with the full view of the prospective evidence that the discovery rules allow, Plaintiffs ask the Court to require Defendants to disclose by November 4, 2023, whether they intend to withdraw their Fifth Amendment assertions and testify at trial. If Defendants do not disclose whether they intend to withdraw their assertion by that time, the Court should bar them from testifying. See United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N_Y., 55 F.3d 78, 84 (2d Cir. 1995) (affirming district court’s denial of defendant’s withdrawal of Fifth Amendment invocation and barring litigants from testifying). Defendants’ “attempt[s] to testify come[] after more than two years of repeatedly invoking [their] Fifth Amendment rights in response to lengthy deposition questions posed to [them] by the [Plaintiffs].” United States v. Priv. Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 914 F. Supp. 895, 900 (E.D.N.Y. 1996). Their “repeated assertion[s] ... [have] undoubtedly given [them] a ‘strategic advantage’” over Plaintiffs, id., including by preventing Plaintiffs from obtaining discovery and evidence relevant to this action, see S.E.C. v. Cassano, No. 99 CIV. 3822 (LAK), 2000 WL 777930, at *1 (S.D.N.Y. June 19, 2000) (denying request to withdraw invocation of Fifth Amendment where Defendants “prevented the Commission from obtaining discovery”). Without adequate time to prepare, Defendants’ testimony would cause Plaintiffs substantial preyudice and give Defendants an unfair advantage. See, e.g., State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., Inc., No. 04-CV-5045 (ILG) (KAM), 2005 WL 2736558, at *6 (E.D.N.Y. Oct. 24, 2005) (collecting cases in which courts denied requests to withdraw invocation of Fifth Amendment). By contrast, if Defendants do intend to withdraw their Fifth Amendment assertions and testify substantively, then Plaintiffs ask the Court to re-open discovery for the limited purpose of re-deposing Defendants on the issue of damages, as well as any necessary follow-up from those depositions. The Fifth Amendment cannot be used as both a shield and a sword. The Federal Rules’ liberal discovery regime would be frustrated if parties could strategically invoke constitutional privileges to deprive opponents of information, and then turn around and testify on the same subjects at a civil trial. See generally Fed. R. Civ. P. 26; 30; 33. Plaintiffs thus ask the Court for leave to re-depose Defendants if either one intends to testify at trial about subjects on which they asserted the privilege during discovery. See Fed. R. Civ. P. 30(a)(2)(A).
Hon. Victor Marrero October 4, 2023 Page 3 Indeed, even when the Second Circuit has ruled that parties should have been allowed to testify, its reasoning rested largely on the adequate notice the adverse party had to depose the witnesses who had previously invoked their Fifth Amendment rights. See In re 650 Fifth Ave. & Related Properties, 934 F.3d 147, 170-71 (2d Cir. 2019) (requiring district court to “explore all possible measures” to accommodate both parties and noting that adverse party had six months after notice of intent to withdraw the Fifth Amendment assertion to depose the witnesses). At bottom, that is what Plaintiffs seek here. Defendants have a right to the protections of the Fifth Amendment. And they have a right to testify at trial. But what they may not do is engage in “a manipulative, ‘cat-and-mouse approach’ to the litigation” that would give them an unfair strategic advantage over Plaintiffs.” Certain Real Prop., 55 F.3d at 84-85. If Defendants intend to testify, they should say so, and then sit for depositions to give Plaintiffs the discovery to which they are entitled. In order to avoid delay or unfair prejudice to Plaintiffs, Plaintiffs respectfully request the Court to order Defendants make their choice by November 4, 2023.
Respectfully submitted, /s/ Amy Walsh Amy Walsh CC: All Counsel of Record (via ECF)
EXHIBIT 1 From: Walsh, Amy Sent: Tuesday, October 3, 2023 8:16 AM To: Marc Epstein; David Schwartz; Jacquie Téllez Cc: Monsour, Franklin; Brecher, Aaron; Sawyer, Richard; Faherty, Colleen; Dagne, Yasmin; D Brody; Adarsh Patel; Church, Melinda Subject: RE: NCBCP v. Wohl, 20 Civ. 8668 Follow Up Flag: Follow up Flag Status: Flagged
David, Following up on Marc’s email below, please let us know if either of your clients in the above-referenced case intends to withdraw his previous invocation of his Fifth Amendment rights and testify at trial. Best regards,
Amy Walsh Partner White Collar Litigation, Investigations & Compliance Orrick New T +1 212 506 3609 M +1 347 614 6611 Bio: https://www.orrick.com/People/4/0/A/Amy-Walsh awalsh@orrick.com orrick
From: Marc Epstein
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National Coalition on Black Civic Participation v. Wohl, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-coalition-on-black-civic-participation-v-wohl-nysd-2023.