United States District Court, M.D. Georgia, Valdosta Division
LAWSON, SENIOR JUDGE.
the Court are Plaintiffs' Motions to Compel Defendant
Enright (Doc. 109) and Defendant Middlebury Equity Partners,
LLC (Doc. 111) to respond to post-judgment discovery
requests. As discussed below, the motions are GRANTED, and
Defendants are ORDERED to respond to Plaintiffs'
post-judgment discovery requests by March 19, 2018.
FACTS AND PROCEDURAL HISTORY
27, 2017, the Court entered a consent judgment in favor of
Plaintiffs. (Doc. 100). The current dispute relates to
post-judgment discovery sought by Plaintiffs in aid of
execution. On July 28, 2017, Plaintiffs served
Defendants' counsel with Plaintiffs' First
Post-Judgment Discovery Requests to Todd Michael Enright
(Enright) and Middlebury Equity Partners, LLC (Middlebury).
for Plaintiffs attempted to resolve the dispute by
communicating with Enright directly as he is now proceeding
pro se. However, Enright responded by sending two letters on
November 22, 2017 and November 30, 2017, respectively, in
which he asserted his fifth amendment right not to respond to
the discovery requests. Plaintiffs' counsel requested the
Court's assistance, and a telephone conference involving
all parties was held on December 12, 2017. Enright again
asserted his fifth amendment privilege during the conference.
now move this Court to compel post-judgment discovery and to
award attorney fees and litigation expenses incurred in
filing the motion.
support of Plaintiffs' Motions to Compel, they assert
that Federal Rule of Civil Procedure 26, 37(a)(3)(B), and 69
authorize and support an order compelling discovery. (Docs.
109, 111). Generally, a district court's decision to
compel discovery is not an abuse of discretion where the
items requested are arguably relevant to the case. See
Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846,
853 (11th Cir. 1997); Fed.R.Civ.P. 37. The information sought
need not be admissible at trial but must only be likely to
lead to relevant admissible information. Fed.R.Civ.P. 26(b).
Thus, the degree of need sufficient to justify granting a
motion to compel will vary to some extent with the burden of
producing the requested information. In other words, the
relevance of discovery requests must be weighed against
“oppressiveness” in deciding whether discovery
should be compelled, and a plaintiff seeking a broad range of
documents must show a more particularized need and relevance.
See United States v. R. Enters., Inc., 498 U.S. 292,
306 n. 4, 111 S.Ct. 722, 731 (1991) (illustrating generally
the standard for ruling on civil discovery disputes)
(internal cites and quotes omitted).
creditors are entitled to discovery, including
interrogatories, “from any person-including the
judgment debtor”-in aid of the judgment or execution.
Fed.R.Civ.P. 69(a)(2). Responding parties must answer the
interrogatories within thirty days after being served, unless
otherwise stipulated to or ordered by the Court. Fed.R.Civ.P.
33(b)(2). Parties seeking discovery may move for an order
compelling an answer when the responding party fails to
answer an interrogatory submitted under Rule 33 or to produce
documents as requested under Rule 34. Fed.R.Civ.P.
request that Enright respond to interrogatories and produce
documents that pertain to the collection of judgment. (Doc.
109-2). In response to Plaintiffs' Motion to Compel,
Defendant Enright submitted a brief in support of his general
objection (Doc. 116). Enright asserts that due to his pending
bankruptcy petition, a pending criminal investigation in
Vermont, a pending RICO action in the United States
Bankruptcy Court in Maine, and a “potentially
open” criminal prosecution in Maine that resulted in a
hung jury after trial in 2012, he must assert his fifth
amendment privilege against self-incrimination in the
above-styled matter. (Doc. 116, pp. 2-3). He states:
“Enright has invoked his Fifth Amendment rights with
respect to answering any Post Judgment discovery arising from
Plaintiffs non-dischargable claim for fraud which was subject
to a settlement agreement arising from the very bankruptcy
proceeding to which Enright is still the subject to a pending
federal criminal investigation.” (Doc. 116, p. 4).
correctly contend that Enright's blanket Fifth Amendment
objection is improper. (Doc. 119, p. 2). The privilege
against self-incrimination may be invoked in civil as well as
in criminal proceedings. See Baxter v. Palmigiano,
425 U.S. 308, 318, 96 S.Ct. 1551, 1558 (1994). In both civil
and criminal cases, the Fifth Amendment right only applies to
testimonial evidence. United States v. Hubbell, 530
U.S. 27, 34-36, 120 S.Ct. 2042-43 (2000). Evidence is
testimonial when a defendant's communication itself,
explicitly or implicitly, relates a factual assertion or
discloses information. Id. at 37, 120 S.Ct. at 2044.
the Fifth Amendment privilege may only be asserted when there
is a substantial, real hazard of self-incrimination.
United States v. Reis, 765 F.2d 1094, 1096 (11th
Cir. 1985) (citation omitted). “[A] witness is not
exonerated from answering merely because he declares that in
so doing he would incriminate himself - his say-so does not
of itself establish the hazard of incrimination.”
Hoffman, 341 U.S. at 486. To properly invoke the
privilege, the party invoking the privilege must provide
“credible reasons why his answers would incriminate
him.” Scarfia v. Holiday Bank, 129 B.R. 671,
674 (M.D. Fla. 1990). It is well established that a person
may not make a blanket objection to testifying or producing
records based on Fifth Amendment privilege, but instead, must
invoke the privilege question by question or request by
request. See United States v. Roundtree, 420 F.2d
845, 852 (5th Cir. 1969). The ban on blanket Fifth Amendment
objections prevents a person from wholesale refusing to
answer any questions or to produce any documents without
specifically considering whether the information sought may
actually raise a “substantial and real hazard of
self-incrimination.” United States v.
Argomaniz, 925 F.2d 1349, 1353 (11th Cir. 1991).
Enright does not object to Plaintiffs' post-judgment
discovery requests on a question by question or request by
request basis. Instead, Enright offers a litany of excuses as
to why he must assert his Fifth Amendment rights.
Specifically, Enright refers to his bankruptcy case and other
pending criminal matters and states “if compelled to
answer, Enright contends that such testimony could be
incriminating in light of the current criminal
investigation.” (Doc. 16, p. 4). Enright does not
specify which interrogatories or documents for which he
asserts his privilege, nor does he persuade the Court that
“a substantial and real hazard of
self-incrimination” exists. Enright's objection is