Episode 178: How to Revoke Invocation of the Fifth Amendment Privilege After a Deposition

You know how to assert a Fifth Amendment privilege in a deposition. But how to withdraw it, once the threat of criminal prosecution is gone? It's a dangerous minefield for the uninformed. In this episode, Jim Garrity explains the process, backed by both brand-new and enduring case law. Invaluable stuff, with a long list of supporting cites in the show notes for your research files.

SHOW NOTES:

United Healthcare Services, Inc. v. Mortazavi, et al., No. 3:21=cv=1547-L, 2026 WL 2076020 (N.D. Tex. July 16,, 2026) (order allowing defendant to withdraw prior assertion of Fifth Amendment rights, reopening discovery for the limited purpose of allowing defendant to testify fully in deposition and serve amended answers to interrogatories and request for admissions; excellent discussion of invocation and withdrawal of Fifth Amendment assertion)

Skillz Platform, Inc. v. Papaya Gaming, Ltd, et al., Case No. 24-cv-1646-DLC, 2026 WL 915251 (S.D.N.Y. Apr. 3, 2026) (in order to invoke the privilege, a witness must have “reasonable cause to apprehend danger from a direct answer” and have “reason to fear that any such answer might be used to incriminate him in future criminal proceedings;” “to be a “credible” threat of prosecution the fear of criminal prosecution may not be “imaginary or wholly speculative;” court refused to allow witnesses to testify where invocation was sought to be withdrawn three weeks )

In re Kowalsky, Case No. 24-19919-VFP, Adversarial Proceeding Case No. 24-1664, 2026 WL 2101871 (D. N.J. July 21, 2026) (in adversarial bankruptcy proceeding where sexual assault victim sought to bar debtor-defendant from discharging state-tort claim against him, court considered but declined to draw negative inference from debtor-defendant’s assertion of Fifth Amendment privilege when ruling on summary judgment motions)

Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012) (elaborating on the factors a court should consider in evaluating whether and under what circumstances party may withdraw its indication of the Fifth Amendment privilege against self-incrimination in a civil case, saying that generally, a litigant may withdraw the indication, even at a late stage in litigation, if (1) the litigant was not using the privilege in a tactical, abusive manner, AND (2) the opposing party would not experience undue prejudice as a result)

United States of America v. 650 Fifth Avenue and Related Properties, Case 1:08-cv-10934-LAP, CM/ECF Doc. 1684-6 (S.D.N.Y. May 15,