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Florida Third DCA rules that defendant in civil sexual battery case has a valid Fifth Amendment right not turn over documents because of reasonable fear of future criminal prosecution

On February 3, 2021, in Shimon v. R.B., No. 20-18188, the Florida Third DCA granted a defendant’s writ for certiorari and quashed an order in a civil sexual battery case requiring him to provide documents in discovery that he contends violates his Fifth Amendment right against self-incrimination. The plaintiff claimed that she was sexually assaulted by the defendant on board his boat. She reported the alleged assault to three different law enforcement agencies, but no arrest was ever made. The civil lawsuit was subsequently filed and the request for production was made while the criminal statute of limitations period was still open. The Third DCA noted thatthe Broward State Attorney’s decision not to prosecute was based in part on the conclusion that it had “no reasonable likelihood of conviction,” but that such a decision can quickly be reversed when new evidence comes to light, as might occur based on the disclosure of documents. The Third DCA concluded that in these circumstances the possibility that a criminal investigation could be re-opened in the future is not so remote as to eliminate his reasonable fear of prosecution and the defendant could not be compelled to give testimony over a claim of his Fifth Amendment right. Of note in this case, the trial court had overruled the defendant’s Fifth Amendment objection without addressing each category of the requested documents individually.

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