Episode 178: How to Revoke Invocation of the Fifth Amendment Privilege After a Deposition

You know how to assert a Fifth Amendment privilege in a deposition. But how to withdraw it, once the threat of criminal prosecution is gone? It's a dangerous minefield for the uninformed. In this episode, Jim Garrity explains the process, backed by both brand-new and enduring case law. Invaluable stuff, with a long list of supporting cites in the show notes for your research files.SHOW NOTES:United Healthcare Services, Inc. v. Mortazavi, et al., No. 3:21=cv=1547-L, 2026 WL 2076020 (N.D. Tex. July 16,, 2026) (order allowing defendant to withdraw prior assertion of Fifth Amendment rights, reopening discovery for the limited purpose of allowing defendant to testify fully in deposition and serve amended answers to interrogatories and request for admissions; excellent discussion of invocation and withdrawal of Fifth Amendment assertion)Skillz Platform, Inc. v. Papaya Gaming, Ltd, et al., Case No. 24-cv-1646-DLC, 2026 WL 915251 (S.D.N.Y. Apr. 3, 2026) (in order to invoke the privilege, a witness must have “reasonable cause to apprehend danger from a direct answer” and have “reason to fear that any such answer might be used to incriminate him in future criminal proceedings;” “to be a “credible” threat of prosecution the fear of criminal prosecution may not be “imaginary or wholly speculative;” court refused to allow witnesses to testify where invocation was sought to be withdrawn three weeks )In re Kowalsky, Case No. 24-19919-VFP, Adversarial Proceeding Case No. 24-1664, 2026 WL 2101871 (D. N.J. July 21, 2026) (in adversarial bankruptcy proceeding where sexual assault victim sought to bar debtor-defendant from discharging state-tort claim against him, court considered but declined to draw negative inference from debtor-defendant’s assertion of Fifth Amendment privilege when ruling on summary judgment motions)Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012) (elaborating on the factors a court should consider in evaluating whether and under what circumstances party may withdraw its indication of the Fifth Amendment privilege against self-incrimination in a civil case, saying that generally, a litigant may withdraw the indication, even at a late stage in litigation, if (1) the litigant was not using the privilege in a tactical, abusive manner, AND (2) the opposing party would not experience undue prejudice as a result)United States of America v. 650 Fifth Avenue and Related Properties, Case 1:08-cv-10934-LAP, CM/ECF Doc. 1684-6 (S.D.N.Y. May 15, 2017) (filed, jointly-submitted agreed jury instruction on the jury’s right to draw an adverse inference against individuals that asserted the Fifth Amendment; instruction based on Sand, Modern Federal Jury Instructions, Instr. 75-5, Libutti v. United States, 107 F.3d 110 (2d Cir. 1997).In re 650 Fifth Ave. & Related Properties, 934 F.3d 147, 169-170 (2d Cir. 2019) (District Court should take a liberal view toward applications by civil litigants to withdraw their previously-about for the amendment privilege; when confronted with the parties request to withdraw its previous indication of its Fifth Amendment rights, threshold issues are whether the request is “timely” and whether its opponent suffered “undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment”)United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 83-84 (2d Cir. 1995) (stating that when confronted with a parties request to withdraw its previous indication of the Fifth Amendment, threshold issues are whether the request is timely, will cause undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment, the nature of the proceeding, how and when the privilege was invoked, and the potential for harm or prejudice to opposing parties)Spevak v. Klein, 385 U.S. 511, 515 (1967) (the Constitution limits “the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly;’” courts should seek out ways to permit as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege)Skillz Platform, Inc. v. Papaya Gaming, Ltd. et al., Case 1:24-cv-01646-DLC, CM/ECF Doc. 1 (S.D.N.Y filed March 4, 2024) (Complaint detailing allegations of bot usage versus humans in online gaming platform)In re Vrusho, 321 B.R. 607, 612 (Bankr. D.N.H. 2005) (stating that when a party to civil actions refuses to provide discovery invoking its Fifth Amendment privilege against self-incrimination, a negative inference may be drawn at the summary judgment stage as well as trial)In re WorldCom, Inc. 377 B.R. 77, 109 (Bankr. S.D.N.Y. 2007) (saying that at summary judgment, the court is required to draw all reasonable inferences in favor of the non-moving party, despite the potential for the ultimate trier of fact to draw an adverse inference from the assertion of Fifth Amendment privileges)