Privilege Against Self Incrimination Corporations
The rule that corporations have no privilege against self-incrimination was reaffirmed in United United States v. Kordel, 397 U.S. 1 (1970).
Kordel added that "service of the interrogatories obliged the corporation to 'appoint an agent who could, without fear of self-incrimination, furnish such requested information as was available to the corporation.'
The corporation could not satisfy its obligation . . . simply by pointing to an agent about to invoke his constitutional privilege. 'It would indeed be incongruous to permit a corporation to select an individual to verify the corporation's answers, who because he fears self-incrimination may thus secure for the corporation the benefits of a privilege it does not have.'
Such a result would effectively permit the corporation to assert on its own behalf the personal privilege of its individual agents." (Id. at p. 8 [90 S. Ct. at pp. 767-768], italics in original.)
Even where the civil discovery process is directed against an individual defendant who is also a defendant in a related criminal case, the Ninth Circuit has held that "the Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings." (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324.)
Keating observed that the question of whether a civil proceeding should be stayed pending the outcome of a parallel criminal proceeding often rests not on the constitutional issue of self-incrimination, but on the issue of abuse of discretion.
'In the absence of substantial prejudice to the rights of the parties involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our jurisprudence.'
'Nevertheless, a court may decide in its discretion to stay civil proceedings . . . "when the interests of justice seem to require such action." (Ibid.)
Keating further stated: "The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made 'in light of the particular circumstances and competing interests involved in the case.'
This means the decisionmaker should consider 'the extent to which the defendant's fifth amendment rights are implicated.'
In addition, the decisionmaker should generally consider the following factors:
(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay;
(2) the burden which any particular aspect of the proceedings may impose on defendants;
(3) the convenience of the court in the management of its cases, and the efficient use of judicial resources;
(4) the interests of persons not parties to the civil litigation;
(5) the interest of the public in the pending civil and criminal litigation." ( Keating v. Office of Thrift Supervision, supra, 45 F.3d at pp. 324-325.)
Concluding that the administrative law judge's refusal to stay the civil proceeding was not an abuse of discretion, Keating, citing Baxter v. Palmigiano (1976) 425 U.S. 308, 318 [96 S. Ct. 1551, 1557, 47 L. Ed. 2d 810], held that "a defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege.
Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding." (Keating v. Office of Thrift Supervision, supra, 45 F.3d at p. 326.)