2015 Ohio 3692
Ohio Ct. App.2015Background
- Decedent Goren Sojic was shot and killed on December 8, 2013, at a Love’s Travel Stop; employee Joshua Karp fired the shots and a grand jury returned a no-true-bill.
- Plaintiffs (estate administrator and heirs) sued Karp and his employers for assault/battery, negligent hiring/training/retention, wrongful death, and related claims.
- At Karp’s January 14, 2015 deposition, after preliminary questions he invoked the Fifth Amendment privilege broadly and refused to answer most questions.
- Plaintiffs moved to compel answers, arguing many questions sought non-incriminating background, employment, training, medical, and interrogatory-related information relevant to negligence claims against employers.
- Trial court found plaintiffs’ procedural showing adequate (certificate of impasse supplied before ruling) and, after reviewing the transcript, sustained the motion in part: compelled answers to most questions but excused five discrete questions (e.g., whether he was armed at the deposition, whether he discussed the incident with certain people, and whether he was on prescription medication on 12/8/13).
- Karp appealed, claiming procedural defects and that his Fifth Amendment privilege validly covered the challenged questions; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Were plaintiffs’ procedural prerequisites to a motion to compel satisfied? | Plaintiffs contended they met Civ.R. 37 and local rules by providing a certificate of impasse and reasonable efforts to resolve the dispute. | Karp argued plaintiffs failed to attach the required statement/certificate to the motion and thus motion was procedurally defective. | Court: No abuse of discretion — certificate was furnished before ruling; trial court properly considered the motion. |
| 2) Could Karp validly invoke the Fifth Amendment as a blanket protection at deposition? | Plaintiffs argued most questions sought non-incriminating, relevant information (background, employment, training, medical) and blanket invocation is improper. | Karp argued questions could lead to incriminating evidence and he reasonably feared prosecution. | Court: Blanket invocation is disfavored; Fifth Amendment must be assessed question-by-question. Court compelled answers to most questions, excusing five specific ones. |
| 3) Were the compelled topics relevant or otherwise protected because plaintiffs already had the information or it was available elsewhere? | Plaintiffs argued relevance to claims (including negligent hiring/retention) and that availability from other sources does not relieve Karp’s obligation to answer. | Karp argued information was cumulative, already produced (police file, personnel files, other depositions), or obtainable elsewhere, so answers risked incrimination. | Court: Relevance standard met under Civ.R.26(B)(1); availability elsewhere does not excuse answering. No abuse of discretion in compelling responses (except the five questions). |
Key Cases Cited
- Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 (2009) (standard of review for discovery rulings and legal issues).
- Cincinnati v. Bawtenheimer, 63 Ohio St.3d 260 (1992) (scope of Fifth Amendment privilege in civil proceedings and test for incrimination).
- Unklesbay v. Fenwick, 167 Ohio App.3d 408 (2006) (trial courts may proceed on motions to compel despite procedural defects when court resolves the dispute on the merits).
- Maness v. Meyers, 419 U.S. 449 (1975) (incrimination includes information that furnishes a link in the chain of evidence).
- Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) (civil courts cannot compel testimony over a valid Fifth Amendment claim absent immunity).
- Hoffman v. United States, 341 U.S. 479 (1951) (standard that privilege is sustained if a responsive answer might be dangerous because injurious disclosure could result).