Randall S. Appel v. Norman Bard and Shirley Bard, 154 So. 3d 1227

Randall S. Appel faced execution on a domesticated foreign judgment exceeding $1 million in Palm Beach County.
During discovery, Appel invoked the Fifth Amendment and refused to answer whether he filed federal tax returns for 2005–2010.
Respondents moved to compel deposition answers; the trial court ordered Appel to answer for years 2005–2010 and overruled the privilege objections.
Appel petitioned the Fourth District for certiorari review, arguing that yes/no answers about filing status could be used in a federal tax prosecution and would ‘‘form a link in the chain of evidence.’’
The Fourth District evaluated whether there was a realistic possibility that the compelled testimony could be used against Appel in criminal proceedings and concluded the trial court erred.

Issue	Plaintiff's Argument (Appel)	Defendant's Argument (Bard)	Held
Whether the trial court properly compelled Appel to answer whether he filed tax returns for 2005–2010	Compelled yes/no answers would admit or deny an element of federal tax offenses and could be used against him; realistic possibility of prosecution exists	IRS already knows his filing status; therefore answers would not materially increase risk of prosecution	The court held Appel could invoke the Fifth Amendment; compelling answers for 2005–2010 was a departure from essential requirements of law and was quashed
Standard for evaluating Fifth Amendment objections in civil discovery	Appel relied on precedent requiring determination of a "realistic possibility" that testimony could aid prosecution	Respondents urged compulsion absent a clear impossibility of use in prosecution	Court reaffirmed: trial courts must determine whether answers could ‘‘form a link in the chain of evidence which might lead to criminal prosecution’’

DeLisi v. Smith, 423 So. 2d 934 (Fla. 2d DCA 1982) (articulates "realistic possibility" standard for Fifth Amendment claims in civil discovery)
DeLisi v. Bankers Ins. Co., 436 So. 2d 1099 (Fla. 4th DCA 1983) (applies the realistic-possibility test to interrogatories and depositions)
Boyle v. Buck, 858 So. 2d 391 (Fla. 4th DCA 2003) (certiorari review available for orders compelling discovery over Fifth Amendment objections)
Pillsbury Co. v. Conboy, 459 U.S. 248 (U.S. 1983) (privilege protects testimony that could aid development of other incriminating evidence)
Hoffman v. United States, 341 U.S. 479 (U.S. 1951) (privilege forbids compulsion of testimony that may aid prosecution)
Brown v. Walker, 161 U.S. 591 (U.S. 1896) (privilege inapplicable only where testimony cannot possibly aid prosecution)
United States v. Hassebrock, 663 F.3d 906 (7th Cir. 2011) (elements of failure-to-file tax offense)
United States v. Tucker, 686 F.2d 230 (5th Cir. 1982) (elements of failure-to-pay tax offense)