United States v. Doonan
- John Cronan
- 1:19-cv-09578
- U.S. District Court · Southern District of New York
- 3
United States v. Doonan: Magistrate Judge Parker denied the Government’s request to decide M.L.’s Fifth Amendment privilege before his deposition.
The ruling concerns the Government’s planned deposition of non-party M.L. and directs the parties to address any Fifth Amendment privilege assertions during the deposition rather than seeking an advance ruling.
What happened
In United States v. Doonan, the Government asked the court to decide in advance whether non-party M.L. could invoke the Fifth Amendment privilege against self-incrimination during a deposition. The questions concerned M.L.’s 2015 tax returns and an alleged statement to Internal Revenue Service agents.
The court said the privilege belonged to M.L., not Defendant William Doonan. Because M.L. had not sought a protective order and the Government had not shown sufficient reasons for an advance decision, the court directed the parties to conduct the deposition first and raise specific privilege objections during questioning.
Magistrate Judge Katharine H. Parker denied the Government’s request for a preemptive ruling and directed the parties to proceed with M.L.’s deposition under that procedure.
The detailed version
- United States v. Doonan · No. 1:19-cv-09578
- John Cronan
- Feb. 26, 2021
Background
The Government filed a letter motion asking the court to decide whether a non-party deponent, identified as M.L., could properly invoke the Fifth Amendment privilege against self-incrimination at an upcoming deposition. M.L., described as a former customer of Defendant William Doonan’s tax practice, had told the Government that he intended to invoke the privilege concerning questions about his 2015 tax returns and an alleged statement against interest made to Internal Revenue Service agents. The Government had already subpoenaed M.L. for the deposition.
The Government stated that it had met and conferred before filing the motion. The opinion says Doonan objected to using M.L.’s alleged statement against interest, but it was not necessary for the court to determine Doonan’s position on the proposed procedure. During Doonan’s deposition, he had asserted his own Fifth Amendment privilege in response to all substantive questioning.
Court’s Analysis
The Fifth Amendment privilege against self-incrimination belongs to the person who may face self-incrimination. The court therefore explained that the privilege at issue was M.L.’s to assert, not Doonan’s. M.L. had not indicated that he was seeking a protective order against the deposition.
The court acknowledged that courts may sometimes decide Fifth Amendment issues before a deposition. But it held that the ordinary procedure is for the deponent to attend the deposition, take the oath, answer questions that do not risk self-incrimination, and assert the privilege as to particular questions. If a party believes an invocation is improper, that party may later ask the court to compel an answer.
The court found that the Government had not provided sufficient reasons for departing from that ordinary procedure. It distinguished the cited decision in which the court made an advance determination because the non-party deponent was imprisoned, was representing himself, and was difficult to depose.
Disposition
Magistrate Judge Katharine H. Parker denied the Government’s request for a preemptive ruling on whether M.L.’s intended invocation of the Fifth Amendment privilege was proper. The parties were directed to proceed with M.L.’s deposition in accordance with the procedure described by the court.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.