In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because, in contrast to the criminal context, the finder of fact in a civil case may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. Recent decisions from the Southern District address when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.

Edward M. Spiro and Judith L. Mogul are principals of Morvillo Abramowitz Grand Iason & Anello and co-authors of "Civil Practice in the Southern District of New York," 2d Ed. (Thomson Reuters 2016). Britton A. Kovachevich, an associate at the firm, assisted in the preparation of this article.

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Hurdles and Consequences to Asserting the Fifth Amendment in ... - New York Law Journal (registration)