United States v. Fishman

15 F.R.D. 124, 1952 U.S. Dist. LEXIS 3532, 1954 Trade Cas. (CCH) 67,698

Opinion

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 1939,¹ 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.²

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.³ Rule 26 is, however, subject to the paramount protection afforded by the Fifth Amendment to the Constitution.⁴ Defendants having made timely claim to their privilege, the notice is vacated.

Settle order.

1 . 15 U.S.C.A. § 68d.

2 . “No person * * * shall be compelled in any criminal case to be a witness against himself, * *

3 . Moore’s Federal Practice, 2d Ed., Vol. 4, par. 26.05, p. 1032.

4 . Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150; Jobnson v. Donaldson, C.C.S.D.N.Y., 3 F. 22; Wigmore on Evidence, 3d Ed., Vol. VIII, § 2256, p. 330.