Previously, in this blog, we have written about the basics of drafting and responding/objecting to Requests for Admission. In Back to Basics: Requests for Admission-Part I, we examined the proper scope of Requests for Admission under Rule 198.1 of the Texas Rule of Civil Procedure, and in Back to Basics: Requests for Admission-Part II we examined the proper responses and objections to Requests for Admission.1
This post examines the applicability of the Fifth Amendment privilege against self-incrimination when responding to Requests for Admission in a civil suit.
Asserting Fifth Amendment Privilege In Response To Requests For Admission
Under Rule 198.2(b) of the Texas Rules of Civil Procedure, once a party has been served with Requests for Admission, "[u]nless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request."
Texas has long recognized that the Fifth Amendment privilege against self-incrimination applies in civil cases, as well as criminal cases. See Tex. Dept. of Pub. Safety Officers Ass'n v. Denton, 897 S.W. 2d 757, 760 (Tex. 1995); In re Espinoza, No. 04-07-00598-CV, 2007 Tex. App. Lexis 9239, 2007 WL 4180216, at * 5-6 (Tex. App. - San Antonio Nov. 28, 2007); In re Speer, 965 S.W. 2d 41, 45 (Tex. App. - Fort Worth 1998). Once such a privilege is asserted, the "trial court must study each question for which the privilege is claimed and forecast whether an answer could tend to incriminate the witness in a crime." See In re Espinoza, No. 04-07-00598-CV, 2007 Tex. App. Lexis 9239, 2007 WL 4180216, at * 7-8. Significantly, "[b]efore the trial court may compel the witness to answer, [the court] must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency to incriminate." See In re Speer, 965 S.W. 2d at 45 (quoting Hoffman v. United States, 341 U.S. 479, 488, 95 L. Ed. 1118, 71 S. Ct. 814 (1951)) (internal citations omitted).
However, current Texas Appellate Court case law states that the Fifth Amendment privilege against self-incrimination does not apply when responding to Requests for Admission in civil cases. See In re Ferguson, 445 S.W. 3d 270, 277-78 (Tex. App. - Houston [1st Dist.] 2013); In re Speer, 965 S.W. 2d at 46
These cases rely on Rule 198.3 of the Texas Rules of Civil Procedure, which states, "[a]ny admission made by a party under this rule may be used solely in the pending action and not in any other proceeding." (Emphasis added.) Thus, the Appellate Courts have ruled that any "admission" made under the Texas Rule of Civil Procedure is not incriminating and, thus, is not subject to the protection provided by the Fifth Amendment privilege against self-incrimination.
These rulings have a somewhat startling real world effect. For example, in a civil suit involving a personal injury arising out of a car accident allegedly due to a Defendant's drinking and driving, a Defendant would be precluded from asserting the Fifth Amendment privilege against self-incrimination in response to a Request for Admission stating, "Admit or deny that you consumed alcohol at X bar on the night of the accident."
Although several Texas Appellate Courts have determined that the 5th Amendment privilege does not apply to Requests for Admission, it is important to note, however, that the Texas Supreme Court has not ruled on this issue, so Defendants have a small argument to make in Court against being forced to answers incriminating Requests for Admission.
Takeaways & Practical Tips
1. Requests for Admission are powerful discovery tools, especially when used in cases against a Defendant facing possible criminal charges.
2. According to several Texas Appellate Courts, the Fifth Amendment privilege against self-incrimination cannot be raised in response to a Request for Admission.
3. The Texas Supreme Court has not ruled on this issue, so Defense attorneys have room to make a good faith argument against allowing their clients to answer incriminating Requests for Admission.
4. If facing a possibly incriminating Request for Admission, consider contacting the opposing counsel to discuss a possible Agreed Protective Order prior to answering. Another option is to assert the Fifth Amendment based on the lack of an applicable Supreme Court ruling and then force the opposing counsel to have a hearing on the matter. (Worst case scenario is that the Court deems the requests "admitted.") However, if a Plaintiff attorney is extremely zealous, be prepared to argue against an award of a possible award of attorneys' fees.
1. See The Bassett Firm, Blog archives for Back to Basics from March 2017 to April 2017.