Before Saitta, Hardesty and Parraguirre. Opinion by Saitta.
In this appeal arising from a civil litigant’s invocation of the Fifth Amendment, the Court held that in response to a civil litigant’s request for accommodation of his or her privilege, the district court should balance the interests of the invoking party and the opposing party’s right to fair treatment. The Court set forth the following considerations a district court must consider in making this determination: (1) the nature of the invocation, which includes consideration of the timeliness of the invocation, whether the party attempts to withdraw the invocation and the manner and timing of the attempt to withdraw; (2) the nature of the civil proceeding; and (3) the extent of prejudice that the opposing party will incur if remedial action is not taken. With these considerations in mind, the Court found that if the circumstances so required, there was a wide range of remedial measures that could be taken when balancing the interests of the invoking party and the opposing party’s right to fair treatment. The Court also noted that an invocation “is not a substitute for relevant evidence” and therefore, the invoking party is not “freed from adducing proof in support of a burden which would otherwise have been his.” In other words, a party who asserts the privilege against self-incrimination must bear the consequences of lack of evidence. The Court confirmed, therefore, that a “claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary burdens in the litigation.” Based on all of these considerations, the Court affirmed the district court’s decision finding that the district court did not abuse its discretion in refusing to permit appellant to withdraw his invocation or in denying appellant’s request to reopen discovery. The Court further concluded that the district court did not abuse its discretion in denying appellant’s NRCP 56(f) motion, nor did it err in granting respondent summary judgment. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
