Brunswick Corporation v. Jerome Doff

Jerome Doff appeals from a contempt order entered against him for failing to answer interrogatories propounded by Brunswick. He contends that the district court abused its discretion because he answered some interrogatories to the best of his ability and, as to the others, he validly invoked his Fifth Amendment privilege not to incriminate himself. Brunswick, on the other hand, argues that Doff waived his Fifth Amendment privilege because (1) the claim was untimely raised; (2) Doff failed properly to support his claim below; and (3) Doff initially answered the interrogatories. Brunswick further contends that the district court properly rejected Doff’s excuse that he could not answer further because his records had been stolen.

I.

Fifth Amendment Claim

We need address only the second of Brunswick’s claims with respect to Doff’s *110 assertion of his Fifth Amendment privilege because, if correct as to it, the issue whether Doff has waived his privilege in one manner or another is irrelevant. We hold that Doff did fail properly to support his claim below. We do so on the basis that the privilege normally is not asserted properly by merely declaring that an answer will incriminate.…

638 F.2d 108 BRUNSWICK CORPORATION, Appellant, v. Jerome DOFF, Appellee. No. 79-3011. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 4, 1980. Decided Jan. 30, 1981. Timothy S. Harris, Los Angeles, Cal., for appellant. Eric F. Edmunds, Jr., Los Angeles, Cal., on brief; John G. Wigmore, Los Angeles, Cal., argued, for appellee. Appeal from the United States District Court for the Central District of California. Before GIBSON, * SNEED and TANG, Circuit Judges. SNEED, Circuit Judge: 1 Jerome Doff appeals from a contempt order entered against him for failing to answer interrogatories propounded by Brunswick. He contends that the district court abused its discretion because he answered some interrogatories to the best of his ability and, as to the others, he validly invoked his Fifth Amendment privilege not to incriminate himself. Brunswick, on the other hand, argues that Doff waived his Fifth Amendment privilege because (1) the claim was untimely raised; (2) Doff failed properly to support his claim below; and (3) Doff initially answered the interrogatories. Brunswick further contends that the district court properly rejected Doff's excuse that he could not…

concurring in result.

I concur reluctantly, in the result. I question whether the district court gave adequate consideration to the defendant’s fifth amendment claim, an issue raising serious and substantial questions of first impression. Given the defendant’s contumacy, the district court’s loss of patience is perfectly understandable. A statement of the bases of the district court’s determination, however, would have materially facilitated review.