Redwine v. STARBOARD, LLC
2011 Ore. App. LEXIS 154
Or. Ct. App.2011Background
- Plaintiffs obtained a judgment against Starboard, LLC for over $900,000 and sought a judgment debtor examination of Tamara and Kevin Sawyer.
- During the May 18, 2009 examination, the Sawyers invoked the privilege against self-incrimination under Article I, section 12 and the Fifth Amendment and refused to answer questions or produce documents.
- Publish reports indicated the Sawyers and Starboard were under FBI/IRS scrutiny; Sawyer was a target of a pending federal criminal investigation.
- The trial court ordered a question-by-question and document-by-document privilege evaluation but ultimately held Sawyer in contempt for noncompliance after rejecting the privilege for at least some questions.
- The court imposed sanctions including custody and passport relinquishment; Sawyer appealed.
- On appeal, Sawyer challenges the trial court’s rulings to compel answers and production over the privilege and the propriety of summary contempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sawyer could invoke the privilege to refuse to answer about her past/present connection with Starboard | Sawyer argues broad question invades right against self-incrimination. | Plaintiffs contend privilege does not apply to broad inquiry. | Privilege valid; court erred in forcing answer |
| Whether Sawyer could be required to produce documents under the act-of-production privilege | Production would reveal information incriminating Sawyer. | Production is compelled; privilege not applicable to production. | Production privilege protects against compelled production; error in ordering |
| Whether the summary contempt ruling was proper given Sawyer's privilege | Noncompliance with court order warrants contempt sanctions. | Privilege overrides, but court may sanction for noncompliance. | Court erred; reversal on privilege grounds, not on sanctions |
Key Cases Cited
- Empire Wholesale Lumber Co. v. Meyers, 192 Or.App. 221 (2004) (establishes question-by-question privilege ruling)
- Hoffman v. United States, 341 U.S. 479 (1951) (test for real danger of incrimination; scope of privilege)
- Doe v. United States, 487 U.S. 201 (1988) (acts of production may disclose incriminating assertions)
- Grunewald v. United States, 353 U.S. 391 (1957) (testimonial risk even where other sources exist)
- Rogers v. United States, 340 U.S. 367 (1951) (test for whether answer would expose to real incrimination)
- Marchetti v. United States, 390 U.S. 39 (1968) (real and not imaginary hazards of incrimination standard)
- Langley, 314 Or. 247 (1992) (standard for evaluating privilege; Oregon Supreme Court precedent)
- Emp ire Wholesale Lumber Co. v. Meyers, 192 Or.App. 221 (2004) (privilege analysis governs admissibility in debtor examinations)
- Doe v. United States, 487 U.S. 201 (1988) (production of documents can convey testimonial content)