Aggressive tactics by plaintiffs’ counsel in commercial trucking cases continue to present SCOTX and the intermediate courts of appeals with serious discovery issues. On Wednesday, SCOTX administratively stayed a Titus County trial court order compelling a defendant driver to answer questions that could subject him to criminal prosecution in violation of his 5th Amendment right against self-incrimination.
In re Terry Lynn Jones (No. 23-1013; stayed December 13, 2023) arose from a fatality accident between a Lowe’s truck driven by Jones and plaintiffs’ vehicle. Prior to Jones’s deposition, plaintiffs obtained text messages from Jones’s wife, to which he did not reply. At the deposition plaintiffs’ counsel, based on the texts, asked “whether Jones has discussed with his wife whether he had any drugs or alcohol in his system at the time of the Incident … and the circumstances surrounding drug texts taken or to be taken by Jones after the Incident.” Jones asserted his 5th Amendment right against self-incrimination. Plaintiffs filed a motion to compel a second deposition, to which Jones responded that the trial court must first rule on his 5th Amendment privilege before he could be redeposed. Jones subsequently withdrew certain some of those assertions and provided complete answers as to those. He also agreed to answer questions to which the trial court determined that the privilege did not apply and requested the trial court be present for follow-up questions for which he may assert the privilege. Plaintiffs did not go through with the second deposition but instead sent requests for admission covering the same issues on which Jones had previously asserted privilege. Jones objected, and plaintiffs’ filed a motion to compel Jones to answer. The trial court granted the motion. Jones sought mandamus from the Texarkana Court of Appeals, which it denied. Jones then sought mandamus and emergency relief from SCOTX.
The issue before SCOTX is the extent to which the Fifth Amendment right again self-incrimination applies in a civil action in which a witness’s answers to deposition questions or requests for admissions could be used against the witness in a criminal proceeding. Although in this case a grand jury declined to indict Jones, Jones argues that the testimony he asserts is privileged could lead to further criminal prosecution. This case appears to be one of first impression at SCOTX, so we will continue to follow it closely.
