The Fifth Amendment is Not a “Blank Check” in a Civil Deposition

A recent decision addresses assertion of a Fifth Amendment privilege to refuse to answer questions in a deposition in a civil case.  A pro se plaintiff sued a management company asserting discrimination and retaliation.  After discovery rulings by a U.S. Magistrate Judge, plaintiff objected and asserted error.  Not only did the court deny the objections, but it also entered a show cause order against the plaintiff.  Azzarmi v. Sedgwick Claims Mgt. Svcs., Inc., 2026 WL 1363083 (S.D.N.Y. May 15, 2026).

While several issues were presented, this post focuses primarily on the Fifth Amendment discussion. The Azzarmi court started with a description of the deposition of plaintiff, and Magistrate Judge McCarthy’s subsequent order:

In Plaintiff’s first deposition, Plaintiff regularly invoked the Fifth Amendment to decline to answer questions posed to Plaintiff by counsel for Defendants. Judge McCarthy ordered Plaintiff to respond to Defendants’ letter explaining which questions Plaintiff meant to invoke the Fifth Amendment in response to; to produce documents identified at Plaintiff’s deposition that Defendants believe they are entitled to; and to produce all documents in Plaintiff’s possession relating to encounters with Port Authority Police that Plaintiff believes Defendants were involved in. (Order 1.)

Id. at *2.

Plaintiff objected.  The court wrote that: “Plaintiff’s objection, read charitably, is that the Fifth Amendment is broadly interpreted and can be asserted in any proceeding, including the deposition.”  Id.

The Azzarmi court disagreed with the “blank check” theory, writing:

But as Judge McCarthy carefully explained, “[t]he Fifth Amendment protects (one) against self-incrimination,” and is not a blank check to refuse to answer questions in a deposition for any reason: Plaintiff had not offered any basis to believe that, for example, “questions about where [Plaintiff] located or whether [Plaintiff] … lived in New York at the time of” incidents discussed during the deposition, would have the potential to incriminate Plaintiff….  Judge McCarthy also correctly found Plaintiff’s concern that Defendants might use Plaintiff’s answers to accuse Plaintiff of a “made-up” crime was not a justification for invocation of the Fifth Amendment…. It was not error to require Plaintiff to specify where and how Plaintiff was attempting to invoke the Fifth Amendment, nor was it error to require Plaintiff to engage with Defendants’ position about the propriety of that invocation.

Id. at *2 (emphasis added).

Factually, the holding may be a bit narrower than it may appear.  The court also wrote that a “general reasonableness of fear of self-incrimination does not justify a refusal to answer any and all questions. The appropriateness of assertions of privilege must be determined on a question-by-question basis.” Id. (citation omitted).

That principle is well-settled.  The narrowest holding of the Azzarmi court is: “Judge McCarthy had not yet ruled on the application of the Fifth Amendment to any given question in the deposition, so this objection is premature.”  Id. at *2.

The Azzarmi court addressed a number of other discovery disputes.  To give only one example, it was proper to limit the number of Requests for Admission where plaintiff had already made 640 requests and sought permission to make another 152 requests. Id. at *4.

Further, the Azzarmi court addressed anti-Semitic and other “broadsides against the Court and Defendants” by issuing an order to show cause why sanctions should not be imposed, including dismissal of the action.  Id. at *4.

In what I would call an understatement, the court wrote: “Plaintiff describes these comments as somehow immune from sanctions because they reflect Plaintiff’s ‘bona-fide religious beliefs.’ … However, the use of disrespectful language in litigation justifies sanctions, and the First Amendment is not a defense, nor an excuse for such language.”  Id. at n. 2 (cleaned up; citation and editing marks omitted).