KST Data, Inc. v. DXC Tech. Co., 344 F. Supp. 3d 1132

Background

Enterprise Services LLC (ES) moved to compel deposition testimony from Mitchell Evans personally and as DME Products & Systems, Inc. (DME) representative, and to authenticate >800 DME documents.
Evans is the subject of a federal criminal investigation and asserted the Fifth Amendment at his personal deposition and repeatedly at the corporate deposition because he is DME's sole available witness.
ES argued Evans’ Fifth Amendment claims are improper and sought compelled testimony on six topic areas plus document authentication.
The court explained that a witness may invoke the Fifth Amendment in civil proceedings when testimony could plausibly be used in a criminal prosecution, even if no charges have been filed.
The court found DME functionally an alter ego of Evans for substantive topics; compelling corporate testimony would effectively compel Evans personally and risk self-incrimination.
The court also considered documentary authentication issues and ES’s late timing in seeking relief, noting potential alternative means of authentication and that ES delayed raising the dispute until near the discovery cutoff.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Evans may invoke the Fifth Amendment in his civil deposition	Evans can be forced to testify; civil testimony won't affect criminal rights	Fifth Amendment protects Evans because answers could be used in criminal prosecution	Held for Evans: he may invoke the Fifth when testimony could plausibly incriminate him (privilege applies)
Whether waiver in this civil proceeding would prevent criminal use of testimony	ES: waiver is limited to the proceeding, so compel here without criminal consequence	Evans: even if he waived here, transcript could be used against him in criminal case; waiver doesn’t remove risk	Held for Evans: waiver in civil case wouldn’t shield him from criminal consequences; transcript could be used later
Whether Evans can be compelled to testify as DME’s corporate representative	ES: DME must authenticate documents and answer corporate questions despite Evans’s personal privilege	Evans: DME is effectively his alter ego and answers would be personally incriminating	Held for Evans/DME: because Evans is the only viable corporate witness, corporate testimony would be functionally identical and protected by the Fifth
Whether DME corporate documents must be authenticated despite privilege and timing	ES: compel authentication of documents and corporate custodian testimony	DME/Evans: invoking Fifth prevents custodian testimony; late timing compounds issue	Held for DME (denying compel): court denied motion but noted alternative authentication methods and criticized ES’s untimely motion; denial without prejudice to trial admissibility arguments

Key Cases Cited

United States v. Balsys, 524 U.S. 666 (1998) (Fifth Amendment claim in civil context allowed where testimony could plausibly lead to criminal prosecution)
Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000) (civil witnesses may invoke Fifth if answers could be used in criminal prosecution)
In re Master Key Litigation, 507 F.2d 292 (9th Cir. 1974) (privilege depends on possibility, not likelihood, of prosecution)
United States v. Cuthel, 903 F.2d 1381 (11th Cir. 1990) (investigation alone can create possibility of prosecution sufficient to invoke Fifth)
United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979) (waiver may be limited to a particular proceeding but prior testimony can be used in later proceedings)
Mitchell v. United States, 526 U.S. 314 (1999) (Fifth Amendment invocation in the civil context does not preclude adverse inference instructions)
Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002) (district court has broad discretion to permit or deny discovery)
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011) (district court not abusing discretion by enforcing scheduling orders)