Plead the Fifth?: New Decision Underscores Why Potential Criminal Prosecution May Allow TCPA Defendants to Avoid Civil Discovery Demands

When I was on stage at the Palooza last week I reminded everyone that a violation of the TCPA can lead to criminal penalties.

Folks seemed a bit confused because the TCPA does not, itself, contain criminal provisions. Yet, as I explained from the stage, the TCPA is found within a chapter of the Communications Act that does contain a provision allowing criminal prosecution for violations of the chapter. See Section 501.

While it is certainly true that prosecutions under Section 501 are exceedingly rare they appear to be viable in many instances. And that means parties to civil TCPA cases might not be compelled to testify against themselves by virtue of responses to civil discovery demands.

For instance, in Van Connor v. One Life Am., C/A No. 6:19-cv-03283-DCC, 2021 U.S. Dist. LEXIS 137702 (D. S. Car.  July 23, 2021) the court held it would be a “manifest injustice” to require a Defendant to respond to civil discovery where criminal prosecution was possible.

In that case the Plaintiff had served a set of interrogatories and document demands requiring information related to his TCPA suit against the Defendant. The Court originally overruled the objections and compelled production. On reconsideration, however, the Court recognized that criminal prosecution for TCPA violations was absolutely possible—even if unlikely—and so self-incriminating responses could not be compelled even in civil litigation.

In assessing the demands, the Court found that questions about general telemarketing practices were not subject to Firth Amendment privileges—telemarketing is still a legal business in this nation, after all.

As to demands regarding “the particular contact with the Plaintiff as well as the manner and means of such contacts” however the Court found that the interrogatories did, indeed, implicate the Fifth Amendment privilege.

The Court also found that the entire set of RFPDs to the Plaintiff is entitled to Fifth Amendment protection because to require production would compel an admission by Defendant that the records were in his possession and were genuine—and would also make compelled use of the plaintiff’ own knowledge of his potentially illegal activity when the demands are framed in the form of a contention.

In the end the Court noted that corporate defendants are entitled to different lesser constitutional protection and so the needed discovery might be compelled from the corporate defendant, while charging the lawyers in the case to act appropriately to protect the constitutional rights of individual defendant.

Van Connor is an extremely interesting ruling and one TCPA defendants MUST take into consideration. Civil lawyers are not used to asserting Fifth Amendment privileges, but failing to do so following Van Connor—especially where an individual defendant is involved—seems imprudent. The application of the Fifth Amendment to civil litigation and different discovery types (i.e. interrogatories vs depositions vs RFPDs) varies jurisdiction by jurisdiction, however. TCPA defendants should talk these issues over with their counsel and assert the privilege wherever applicable.

We’ll keep an eye on this important issue.


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