United States District Court, N.D. Georgia, Atlanta Division
CHARLES A. PANNELL, JR., United States District Judge
matter is before the court on two of the special master's
the reports and recommendations [Doc. Nos. 332, 333], which
the court will refer to as “R&R 332” [Doc. No.
332] and “R&R 333” [Doc. No. 333].
objections have been filed as to R&R 332. After carefully
considering R&R 332 and finding no error, the court receives
it with approval and adopts R&R 332 [Doc. No. 332] as the
opinion of this court.
R&R 333, non-party Michael Cohen has filed a limited
objection and request for in camera hearing [Doc. No. 354].
R&R 333 makes a recommendation on the plaintiff's motion
to compel Cohen to answer questions in a continued deposition
[Doc. No. 234]. Throughout his initial deposition, Cohen
refused to answer questions, claiming the Fifth Amendment
privilege against self-incrimination. The special master
conducted an in camera hearing with Cohen and his counsel
pursuant to the procedures articulated in United States
v. Goodwin, 625 F.2d 693 (5th Cir. 1980), to determine
if Cohen properly claimed the privilege. He then found that
Cohen did not establish a reasonable fear of incrimination to
justify his Fifth Amendment invocations, and recommended that
the court grant the plaintiff's motion to compel [Doc.
No. 234]. Cohen now objects to R&R 333 and requests an in
camera hearing with this court.
the court must review a special master's R&R de novo if a
party has filed objections. Fed.R.Civ.P. 53(f)(3). The
federal rules also state that the court must give the parties
“an opportunity to be heard” when ruling on a
special master's R&R. Fed.R.Civ.P. 53(f)(1). However, the
advisory committee's notes clarify that this requirement
“can be satisfied by taking written submissions when
the court acts on the report without taking live
testimony.” Fed.R.Civ.P. 53 advisory committee's
note. Accordingly, the court may rule on R&R 333 on the
pleadings and without conducting a hearing.
Cohen's privilege claim, the Fifth Amendment to the
United States Constitution affords individuals the privilege
against self-incrimination: “No person shall be . . .
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. The privilege
“applies alike to civil and criminal proceedings,
wherever the answer might tend to subject to criminal
responsibility him who gives it.” McCarthy v.
Arndstein, 266 U.S. 34, 40 (1924). A witness cannot
establish the privilege based on bald assertions or
“hypothetical offerings.” Goodwin, 625
F.2d at 700-01. He must provide enough information to show
“real possibilities” that his answer could form
the basis for criminal liability. Id. at 701.
Goodwin, a court “must make a proper inquiry
into the legitimacy and scope of the witness' assertion
of his Fifth Amendment privilege.” Id. at 701.
When a court “conducts an in camera hearing into the
witness' Fifth Amendment privilege it must make ‘a
particularized inquiry, deciding, in connection with each
specific area that the questioning party wishes to explore,
whether or not the privilege is well-founded.'”
Id. (quoting United States v. Melchor
Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976)).
Ultimately, the court must determine whether the person
invoking the privilege has a “reasonable cause to
apprehend danger from a direct answer.” Hoffman v.
United States, 341 U.S. 479, 486 (1951).
R&R 333 makes findings on Cohen's Fifth Amendment
assertion on 19 different categories of questions, Cohen does
not specify which of these findings he is objecting to. Cohen
merely states that his objection “is limited in scope,
” and that he “does not object to the vast
majority of the Special Master's findings” [Doc.
No. 354 at 3]. He instead points out that after R&R 333 was
issued, Cohen and others associated with Service Foods-a
defendant in this action-were subpoenaed and questioned by the
United States Postal Service and the Federal Bureau of
Investigation. And R&R 333 notes that, at the time,
“Cohen has not been questioned by any criminal
authorities in connection with his involvement in Service
Foods.” R&R 333 at 13. Cohen argues that the special
master therefore relied on that fact to make his findings
and, because he has now been questioned by criminal
authorities, some “limited” but unspecified
portion of the special master's findings should be
modified or rejected. Cohen then asks the court to conduct
its own in camera review pursuant to Goodwin.
objections are not persuasive. First, although the special
master noted that Cohen had not then been questioned by
criminal authorities, his conclusion did not rely on that
fact. Rather, the special master concluded that Cohen did not
have a reasonable fear of incrimination from the questions
“[i]n light of Cohen's role in Service Foods,
lack of specific allegations of misconduct against Cohen, and
the absence of facts demonstrating reasonable probability of
Cohen's criminal liability.” R&R 333 at 39. Second,
the court agrees with the special master's findings. The
transcript of Cohen's in camera hearing shows that Cohen
did not provide facts that support a reasonable fear of
incrimination. He generally based his invocation of the
privilege on bald conclusions and remote speculations.
Finally, the court finds that Cohen's failure to do so is
not altered by the subsequent grand jury subpoena and
questioning on July 10, 2017. Cohen does not say that charges
have since been filed against him, or otherwise identify any
basis for the court to find that he can now-as opposed to at
his previous in camera hearing-provide a factual basis for
fear of incrimination. Accordingly, the court finds that its
review of the in camera hearing transcript and the record is
sufficient to satisfy Goodwin. That is, the court
has conducted a “proper inquiry into the legitimacy and
scope of the witness' assertion of his Fifth Amendment
privilege.” Goodwin, 625 F.2d at 701.
Cohen's objection is DISMISSED, and his request for an in
camera hearing is DENIED.