Does anyone have any suggestions or a form used in response to the Defense's blanket invocation of 5th amendment in response to the State's discovery requests (Interrogatories, Admissions, Production of Documents, and Request for Disclosure)? This case involves a money seizure wherein the Defendant was found in possession of narcotics packaged for sale. Defense claims 5th amendment in response to everything because the "State has elected to pursue criminal charges."

Two things: Motion for summary judgment - that puts the burden on the defendant to establish a factual dispute, or a motion to compel responses along with a request for sanctions. I like the summary judgment route, because it usually moves the case along. "State has elected to pursue criminal charges" is of course not a valid objection, so motion to compel is also useful. Remember that unlike in a criminal context, in Chapter 59 proceedings, which are more civil in nature, any privilege is usually invoked on a question-by-question basis, rather than in a blanket manner.

So if I file a Motion to Compel and the defense responds by typing out their invocation of the 5th amendment to each and every question, how have I gotten any further along?

5th Amendment invocation in civil allows the finder of fact to infer that the answer or evidence would have been unfavorable to the respondent.

Does that help?

As Versel said, the invocation of privilege can be inferred against the responding party. Using the responses as part of a summary judgment is then possible. Any response to a summary judgment is likely to include at least some facts, if for nothing more than to establish that a factual dispute exists. But, if defendant invokes privilege on EVERY question, including things such as "state your correct legal name" (clearly not privileged), then sanctions may be available (depending on your judge). So, you have made a least some progress in getting the case moved. Or, set it for a hearing, have your witnesses ready to go, then let the defendant invoke his privilege - and you win because the evidence is not controverted.

The rule that covers this is Rules of Evidence 503(c). I have successfully used this as the basis for Summary Judgment on a few occasions. I believe that a blanket denial could be considered Evasive for Rule 215.4 of Rules of Civil Procedure.

Obviously I have no way of knowing what your requests for admissions consisted of--but there is a line of Texas cases that suggest that a defendant can never assert a Fifth Amendment objection to a requests for admission because such admissions, by rule, are only admissible against a party in the civil proceeding in which they were propounded.

Assuming that the requests objected to are sufficient to prove your case--I would file a Motion for Summary Judgment and argue that the requests have been deemed admitted.

In re Speer, 965 S.W.2d 41 and Katin v. City of Lubbock, 656 S.W.2d 360 are two of the cases.


Also look at In re Ferguson, 2013 WL941802 recently issued out of the First Court of Appeals in Houston.