The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Indeca, a quasi-national corporation organized under Guatemalan
law, has as part of its responsibility the purchase of
foodstuffs and agricultural staples for the Guatemalan people
on international markets. It sues defendants for an allegedly
fraudulent scheme involving the purported sale of 6,000 metric
tons of black beans. Defendants Deborah Bell, Rumex
International and Robert Tucker move under Fed.R. Civ.P.
("Rule") 37 for an order compelling defendant Thomas J. Lipani
("Lipani") to answer certain questions at his deposition. For
the reasons stated in this memorandum opinion and order their
motion is denied.*fn1
At his June 1, 1981 deposition Lipani invoked his Fifth
Amendment privilege against self-incrimination and refused to
answer any questions. Such refusal to answer could not be
contested but for the fact that Lipani had earlier testified
about the same matters before a grand jury without asserting
the Fifth Amendment. Defendants contend that Lipani's earlier
failure waived his right to claim the privilege at the
Although our Court of Appeals has yet to address the question,
the prevailing view is that failure to invoke the Fifth
Amendment in one proceeding does not waive a person's right
to claim the privilege in a later one. United States v.
James, 609 F.2d 36, 45 (2d Cir. 1979) (grand jury
proceedings); United States v. Licavoli, 604 F.2d 613, 623
(9th Cir. 1979) (same); United States v. Yurasovich,
580 F.2d 1212, 1219 (3d Cir. 1978) (same); United States v. Cain,
544 F.2d 1113, 1117 (1st Cir. 1976) (other criminal proceedings).
Defendants rely on the one case to adopt a contrary position,
Ellis v. United States, 416 F.2d 791 (D.C.Cir. 1969). Ellis
denied a witness the right to assert the Fifth Amendment during
a trial when he had voluntarily testified before the grand jury
that issued the indictment that led to the trial. This Court
finds Ellis and defendants' corresponding position
unpersuasive, certainly in the context of a deposition.
As the Fifth Amendment's language indicates, it comes into play
any possibility exists that a witness might be subjected to
prosecution. In re Folding Carton Antitrust Litigation,
609 F.2d 867, 871-72 (7th Cir. 1979) ("any possibility of
prosecution which is more than fanciful"). For that reason the
waiver doctrine developed in cases where "the testimony sought
cannot possibly be used as a basis for, or in aid of, a
criminal prosecution against the witness. . . ." Brown v.
Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819
(1896). Clearly Lipani remains in jeopardy of being prosecuted
and thus comes within the majority rule as so justified.
Ellis took a different stance, basing its waiver theory on
the notion that repeating such testimony would not subject
the witness to any danger "provided he is not required to
disclose matters of substance which are unknown to the
Government." 416 F.2d at 801. At least in the present context
Ellis can readily be distinguished on its facts. When a grand
jury witness refuses to testify at the resulting criminal
trial, the court encounters difficult problems (id. at
It would impede sound law enforcement if an implicated but
cooperating witness can decide, after he has made disclosure to
the grand jury, that he will refuse to testify at trial. The
Government may have structured its case around this witness,
and be unable at a late hour, often after jeopardy has
attached, to recast an investigation. Leads that might have
been explored in the past, with expenditure of much money and
time, and were put aside with this witness's cooperation, may
now be lost beyond retrieval. The witness may have obtained an
effective immunity for himself, especially if the investigation
ripened just before the expiration of the statute of
limitations, and then be able to balk all prosecution. And even
a cooperative witness may be made vulnerable, by a doctrine
that gives him choice, to the threats and blandishments of the
Those considerations are not presented by a witness such as
Lipani who refuses to testify in a collateral civil action.
This Court finds the Ellis reasoning, even apart from the
preceding discussion, uncompelling in a deposition situation.
If a witness has anything more than a mere imaginary
possibility of increasing the danger of prosecution he must be
able to invoke the Fifth Amendment. Rogers v. United States,
340 U.S. 367, 374-75, 71 S.Ct. 438, 442-43, 95 L.Ed. 344
(1951). Were this Court to order Lipani to testify at a
deposition, it would be most difficult to ensure that the scope
of his testimony would be identical to that before the grand
jury. Indeed even in the controlled environment of a trial it
has been argued that there is a substantial basis for not
subjecting a witness to the risk of further disclosure.*fn2
As one commentator pointed out in criticizing Ellis,
McCormick on Evidence § 140 at 298 (1972):
While in theory a witness may be subjected to no additional
legal detriment, there is a reasonable possibility that in the
process of rigorous examination and cross-examination he may
make further damaging admissions because of confusion or
excitement. As a practical matter, extending the waiver to
trial testimony creates a danger of greater legal detriment.
Defendants' motion to compel is denied. Accordingly defendants'
prayer for payment of costs and expenses in traveling to the
deposition and presenting this motion are denied. As for their
alternate request for production of Lipani's grand jury
transcript, in accordance with this District Court's ...