Cho v. City Of San Jose

Background

This order resolves a discovery dispute about the deposition of defendant Matthew Rodriguez. Plaintiff Anthony Sung Cho noticed Rodriguez’s deposition. Rodriguez apparently intended to invoke the Fifth Amendment privilege against compelled self-incrimination regarding three categories of information: the facts and circumstances of the uses of force involved in this case and in the related Marin matter and criminal prosecution; his knowledge of relevant policies, procedures, and protocols; and specific use-of-force training courses he took.

Cho argued that Rodriguez should not be permitted to invoke the privilege or refuse to answer any deposition questions. The parties also disputed whether Rodriguez faced a possible criminal prosecution and whether he had waived the privilege by voluntarily giving police investigators a statement about the Marin matter.

Court’s Analysis

The court explained that a witness may invoke the privilege in a civil case when there is a possibility of criminal prosecution and the testimony could directly incriminate the witness or provide an indirect link to incriminating evidence. Ordinarily, the privilege must be asserted on a question-by-question basis.

Although Cho argued that no criminal charges were pending against Rodriguez, Rodriguez stated without contradiction that he was subject to a pending investigation concerning possible prosecution. The court concluded that Rodriguez therefore had a reasonable belief that his testimony could be used against him in a future criminal prosecution.

The court could not decide whether Rodriguez had waived the privilege by giving a voluntary statement to investigators. The statement itself was not before the court, and the parties provided only a high-level description of the circumstances. The record was insufficient to determine whether Rodriguez had waived the privilege as to any facts, whether the deposition testimony fell within the scope of any waiver, or whether the testimony could further incriminate him. The court also found it premature to decide whether Rodriguez would have to invoke the privilege before a trial jury or whether the jury could draw an adverse inference from that invocation.

Disposition

The court did not conclude that Rodriguez had to answer all questions or that he was barred from invoking the privilege as to the identified categories of information. It ordered Rodriguez to submit to the deposition and to invoke the privilege separately for each question for which he believed the privilege applied. He did not have to answer those questions at that time. The order was without prejudice to Cho’s ability to challenge Rodriguez’s privilege assertions and refusals to answer after the record was better developed.