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Florida Third DCA quashes trial court’s contempt order against defendant in civil theft case, finds that defendant did not waive Fifth Amendment right by refusing to answer questions on other privilege grounds prior to invoking Fifth Amendment

On December 2, 2020, in Wahnon v. Coral and Stones Unlimited Corp., No. 3D19-2387, the Florida Third DCA addressed the issues that arise when a trial court attempts to use civil contempt to remedy the prejudice that arises when a party asserts the Fifth Amendment in a civil case. The case involved a dispute between two diamond merchants over diamonds that had been provided by one (the defendant) to the other (the plaintiff), allegedly for the sole purpose of allowing the diamonds to be shown to an interested third party. After the defendant allegedly refused to return the diamonds, the plaintiff sued him for replevin and civil theft. The defendant alleged in an affidavit and in his initial deposition that he had transferred the diamonds in a “bona fide sale to a third-party,” but refused to disclose any more details about the transaction, citing his client’s right to privacy and his right to protect trade secrets.  The trial court overruled the defendant’s trade secrets and privacy objections, resulting in a second deposition at which he asserted his Fifth Amendment privilege for the first time. The trail court then ruled that the defendant had waived his Fifth Amendment privilege by making the previous disclosures, found him in contempt, and ordered that he be taken into custody and that his pleadings be stricken if he did not answer the plaintiff’s questions about the diamonds. On certiorari review, the Third DCA focused first on whether the defendant had reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.  The Third DCA concluded that reasonable grounds existed, in part because the statute of limitations for theft had not expired.  Regarding the plaintiff’s claim of waiver, the Third DCA noted that the defendant never actually disclosed the key information sought by the plaintiff (regarding the identity of the purchaser and the location of the diamonds) before asserting the Fifth Amendment, and instead had consistently claimed the information was privileged (albeit on other privilege grounds). The Third DCA was unwilling to find a voluntary waiver in these circumstances and granted the defendant’s certiorari petition, quashing the contempt orders under review.