The Fifth Amendment and Civil Discovery: Why Blanket Stays Don’t Work in Georgia

Illustration of the U.S. Constitution’s Fifth Amendment alongside a gavel, scales of justice, and a legal document labeled “Civil Discovery,” symbolizing the clash between constitutional rights and discovery in Georgia civil cases.

Defendants sometimes try to invoke the Fifth Amendment to stop an entire civil case in its tracks. But Georgia law is clear: the privilege against self-incrimination must be asserted question by question. Blanket protective orders or case-wide stays are not allowed.

In Edwards v. P.A.M. Transport, defendants sought an interlocutory appeal after the trial court denied their motion to stay all discovery in a wrongful death trucking case. The Court of Appeals denied the application, following long-standing precedent.

Georgia’s Rule: Question-by-Question, Not Blanket Stays

The Supreme Court of Georgia set the rule in Axson v. National Surety Corp. (1985): a party may assert the privilege against self-incrimination, but only in response to specific questions. The court rejected any “blanket” invocation.

Since then, both the Supreme Court and Court of Appeals have reaffirmed the principle:

  • Axson v. National Surety Corp., 254 Ga. 248 (1985): Blanket protective orders are improper.

  • Chumley v. State, 282 Ga. App. 117 (2006): No legal basis to stay all civil discovery during parallel criminal proceedings.

  • Dempsey v. Kaminski Jewelry, 278 Ga. App. 814 (2006): Pre-indictment discovery cannot be frozen on speculation alone.

The message is consistent: discovery must proceed, and defendants must invoke the Fifth Amendment one question at a time.

Practical Lessons for Plaintiff Lawyers

  1. Challenge Overbroad Motions
    Defense counsel often frame motions broadly, seeking to freeze all discovery. Emphasize the distinction between specific testimonial questions (where the privilege might apply) and other forms of discovery (corporate records, pre-existing documents, inspections) that are not protected.

  2. Lean on Controlling Precedent
    Georgia courts have already spoken. Cite Axson, Chumley, and Dempsey early and often. This makes it harder for the defense to claim there’s any unsettled issue.

  3. Remind Courts of Their Discretion
    Motions for protective orders are reviewed for abuse of discretion. Trial courts have broad authority to keep cases moving, even when a defendant hints at potential criminal exposure.

  4. Highlight Corporate Defendants
    Corporations have no Fifth Amendment rights. A motion to halt discovery against both an individual and a corporate co-defendant should be attacked as doubly overbroad.

Why This Matters

Delay benefits defendants. Every month a case is stayed, witnesses move, memories fade, and pressure mounts on plaintiffs to settle cheaply. By resisting overbroad Fifth Amendment motions, plaintiff lawyers keep the case on track and protect the client’s right to timely justice.

FAQs

Q: Can a civil defendant refuse to answer all questions by citing the Fifth Amendment?
No. Georgia law requires defendants to answer each question and invoke the privilege only where there is a real risk of self-incrimination. Blanket refusals are not permitted.

Q: What if there’s a pending criminal investigation but no charges?
That makes the Fifth Amendment claim weaker, not stronger. Courts have held that speculative risks do not justify halting civil discovery.

Q: Does the Fifth Amendment apply to corporations?
No. Corporations have no Fifth Amendment rights. Discovery from corporate defendants must proceed regardless of an individual’s privilege.

Read our brief in Edwards v. PAM Transport here.

Learn more about the litigation process here.