2022 Ohio 1675
Ohio Ct. App.2022Background
- Plaintiff Marilyn Williams-Salmon alleges she was misdiagnosed and prescribed Nuedexta as part of an Avanir kickback scheme; she sued Avanir, Dr. Raheja, and Avanir employees Gregory Hayslette and Frank Mazzucco, among others.
- In 2019 appellants (and others) were indicted federally for alleged violations of the Anti‑Kickback Statute; plaintiff’s civil suit was filed in state court in January 2020.
- In March 2021 plaintiff served 116 discovery requests (interrogatories, document requests, requests for admission) to Hayslette and Mazzucco covering witnesses, documents, communications, payments, and items tied to the federal prosecution.
- Each appellant responded to every request with the same blanket statement invoking the Fifth Amendment and Ohio equivalent, asking the court to treat the assertion as a denial.
- The trial court granted plaintiff’s motions to compel, finding appellants failed to show how each specific request would incriminate them; appellants appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a blanket Fifth Amendment refusal to respond to civil discovery is proper | Williams‑Salmon: blanket refusals are insufficient; defendants must answer non‑privileged requests and assert privilege specifically | Hayslette/Mazzucco: under indictment, discovery tied to the criminal case, so asserting privilege across requests was warranted | Blanket assertions were improper; defendants failed to invoke the privilege with particularity and must respond to non‑privileged requests |
| Whether the trial court abused its discretion by compelling answers | Williams‑Salmon: court correctly required particularized responses and compelled discovery | Defendants: compelling discovery violated constitutional privilege against self‑incrimination | No abuse of discretion; compulsion was proper because privilege not properly asserted |
| Whether the trial court was required to perform a question‑by‑question privilege analysis or stay civil discovery pending criminal case | Williams‑Salmon: defendants must specify which requests are privileged; no stay required | Defendants: court should have balanced interests, done question‑by‑question analysis, or stayed the case while criminal proceedings were pending | Appellate court held defendants bore the burden to assert privilege specifically; trial court was not required to undertake that parsing sua sponte or to stay the case absent proper claims |
| Whether basic, non‑incriminating discovery (e.g., name, address, employment) must be answered despite indictment | Williams‑Salmon: such basic facts are non‑privileged and must be answered | Defendants: even basic information could lead to incrimination given the indictment | Basic administrative and non‑incriminating requests are not protected; defendants must answer those requests |
Key Cases Cited
- Maness v. Meyers, 419 U.S. 449 (U.S. 1975) (Fifth Amendment protects witness from being compelled to produce evidence that may be used in later criminal prosecution)
- Cincinnati v. Bawtenheimer, 63 Ohio St.3d 260 (Ohio 1992) (Fifth Amendment applies in civil proceedings and protects against compelled production of incriminating evidence)
- N. River Ins. Co. v. Stefanou, 831 F.2d 484 (4th Cir. 1987) (blanket Fifth Amendment assertions are disfavored; privilege must be asserted with sufficient particularity)
- Rogers v. Webster, 776 F.2d 607 (6th Cir. 1985) (discussing assertion of privilege in civil discovery and treating assertions as denials in certain contexts)
- United States v. Bates, 552 F.3d 472 (6th Cir. 2009) (presumption against blanket assertions; judge needs specifics to evaluate privilege)
- In re Morganroth, 718 F.2d 161 (6th Cir. 1983) (privilege cannot be claimed in advance of particular questions)
- United States v. Sharp, 920 F.2d 1167 (4th Cir. 1990) (analysis whether information is facially incriminating or requires contextual proof)
- United States v. Gordon, 634 F. Supp. 409 (Ct. Int'l Trade 1986) (privilege must be asserted with specifics to create a record for court review)