Jane DOE, Petitioner, v. THE SUPERIOR COURT for the County of Los Angeles, Respondent, ROMAN POLANSKI, Real Party in Interest.
Petitioner, Jane Doe (“Jane”), the plaintiff below in an action for damages based upon allegations of sexual assault and battery and other claims,1 seeks the assistance of this court to compel the defendant and real party in interest, Roman Polanski (“Polanski”), to comply with certain discovery requests. Specifically, Jane requests a writ of mandate compelling the respondent trial court to vacate its order of June 19, 1991, (1) sustaining Polanski's objections to certain requests for admission, (2) sustaining Polanski's objection to a request for production of certain written communications and (3) granting only limited discovery of Polanski's financial condition.
As we find that Code of Civil Procedure section 2033, subdivision (n),2 effectively provides use and derivative use immunity for admissions made under that section, after an initial assertion of the privilege against self-incrimination, we conclude Polanski may not rely upon such privilege to avoid responding to the admission requests submitted by Jane. We also conclude the trial court abused its discretion in placing a time limitation on Jane's discovery of Polanski's financial condition. Thus, with respect to these two issues, we will grant the writ.
FACTUAL AND PROCEDURAL BACKGROUND
As disclosed by Jane's pleading, this action arises from certain events which took place in Los Angeles on March 10, 1977. It is alleged that Polanski, who was then 42 years of age, drove Jane, then a 13 year old minor, to the home of a friend on the pretext of a professional photography session. After they arrived, Polanski supplied her with both alcohol and a controlled substance (quaalude) which caused her to become intoxicated. Polanski then engaged in a number of illegal sexual acts with Jane.
These events were reported to the authorities and, on March 24, 1977, Polanski was charged by indictment with the crimes of (1) furnishing a controlled substance to a minor (Health & Saf.Code, § 11380, subd. (a)), (2) lewd or lascivious acts upon a child under the age of 14 years (Pen.Code, § 288), (3) unlawful sexual intercourse (Pen.Code, § 261.5), (4) rape by use of drugs (Pen.Code, § 261, subd. (3)), (5) oral copulation (Pen.Code, § 288a), and (6) sodomy (Pen.Code, § 286, subds. (a) and (c)). On August 8, 1977, he pled guilty to the third charge, unlawful sexual intercourse. At the time his plea was taken, Polanski admitted each element of this crime. The criminal proceedings were adjourned and the trial court instituted mentally disordered sex offender proceedings. However, after completion of a 42–day diagnostic study at the state prison at Chino, but before he could be sentenced, Polanski fled to France and has never returned.3 Ever since February 14, 1978 (the continued date of his sentencing hearing), Polanski has been a fugitive from California justice.
Jane, at the age of 25, filed this action on December 30, 1988. On June 22, 1989, Polanski appeared through counsel, generally denying the allegations of Jane's first amended and supplemental complaint and raising certain affirmative defenses. Jane moved to have Polanski's answer stricken based upon his fugitive status. This motion was denied and on August 20, 1990, another division of this court refused to issue a writ of mandate. (Doe v. Superior Court (1990) 222 Cal.App.3d 1406, 1410–1411.) In reaching that decision, the court concluded that the “disentitlement doctrine” (see Molinaro v. New Jersey (1970) 396 U.S. 365 [24 L.Ed.2d 586, 90 S.Ct. 498]; United States v. $129,374 in U.S. Currency (9th Cir.1985) 769 F.2d 583) applied only to bar a fugitive from pursuing proceedings which were initiated by the fugitive; and that it would be an improper denial of due process to deny Polanski an opportunity to assert a defense to an action commenced by another. (Doe v. Superior Court, supra, 222 Cal.App.3d at p. 1411.)
However, the holding in Doe v. Superior Court carried a strong caveat. The court noted that Polanski did “not seek relief in his own right; rather, he merely seeks the opportunity to be heard and present any defenses he may have to [Jane's] causes of action.” (Doe, supra, at p. 1409.) The court emphasized that, “Polanski has not failed to comply with any discovery requests or otherwise interfered with [Jane's] ability to collect evidence․ [¶] In sum, at this point in the litigation Polanski has committed no act or omission which would justify the sanction of depriving him of the ability to offer a defense․” (Doe, supra, at pp. 1410–1411.)
Jane submitted requests for admission on February 11, 1991. Polanski responded to a number of them with the assertion of his privilege under the Fifth Amendment to refuse to answer on the ground he might incriminate himself.4 Jane moved the court for an order requiring Polanski to provide further responses without the assertion of his claimed self-incrimination privilege. She argued that (1) the provisions of section 2033, subdivision (n), protected Polanski and he thus had no need or right to refuse a proper response, (2) Polanski had already waived the privilege by his plea of guilty and his detailed admissions in open court to all of the elements of the offense and (3) Polanski had suspended his sentencing by becoming a fugitive.5 On June 19, 1991, the trial court held that Polanski was entitled to assert his self-incrimination privilege and denied Jane's motion.
On July 6, 1989, Jane served Polanski with a demand for production of documents which requested “any writing” which referred or was relevant to the matters alleged in the complaint. Because such request required production of documents which Polanski claimed were protected by the attorney-client privilege, he objected. After a “meet and confer” process and several extensions, Polanski served supplemental responses on May 10, 1991.6 In these responses he still asserted his privilege objection. Jane moved to compel their production, arguing that Polanski's disclosure in his book, Roman by Polanski, of some conversations with his attorney was a waiver of the attorney-client privilege.7 Again, the trial court sustained Polanski's claim of privilege and, on June 19, 1991, denied Jane's motion.
The third and final discovery issue before us arises from Jane's motion for an order permitting her to discover information about Polanski's financial condition. This motion was granted on June 19, 1991, but with a significant limitation. At that time, the court ordered such discovery would be permitted, but only during the 120 day period prior to trial. The court expressed the view that Jane was only entitled to know and present evidence of Polanski's financial condition as of the date of trial and so disclosure of financial information prior to 120 days before trial would be too broad.
Jane argues that all three of these rulings were in error and she seeks a writ of mandate directing the trial court (1) to overrule Polanski's objections based on the claimed self-incrimination and attorney-client privileges and (2) to require Polanski to produce financial information without any time restriction.
On December 4, 1991, we issued an alternative writ and set the matter for hearing.
The issues raised by Jane's petition, at least in part, are of first impression in California and may be characterized as follows:
1. Has Polanski, having pled guilty to one of six criminal charges arising out of the incident upon which this civil action is based, waived his right to object to otherwise legitimate discovery requests on the ground that truthful responses would tend to incriminate him?
2. Does section 2033, subdivision (n), prevent the assertion of the self-incrimination privilege as an objection to a request for admission?
3. Did Polanski waive the attorney client privilege with respect to all communications with his counsel by his disclosure in a published book of some of those communications?
4. Did the trial court abuse its discretion in limiting Jane's discovery of Polanski's financial condition (as authorized by Civ.Code, § 3295) to the 120 day period prior to trial?
1. Standard of Review
In general, the management of discovery matters lies within the sound discretion of the trial court. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378; Carlson v. Superior Court (1961) 56 Cal.2d 431, 437; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1084.) Where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, supra, 218 Cal.App.3d at p. 1084.)
However, the trial court's discretion to determine what is discoverable is not unlimited. If there is no legal justification for an exercise of discretion, it must be held that an abuse has occurred, and a reviewing court will grant relief. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at pp. 389–381; Carlson v. Superior Court (1961) 56 Cal.2d 431, 437; Lehman v. Superior Court (1986) 179 Cal.App.3d 558, 562.)
Ordinarily, a petition for a writ is not a favored method of obtaining review of discovery orders. (Sav-on Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5; Lehman v. Superior Court, supra, 179 Cal.App.3d at p. 562.) It is generally reserved to review questions of first impression that are of general importance to the trial courts and to the profession and where general guidelines can be laid down for future cases. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4.) This is such a case. Writ review is also appropriate where, as here, an abuse of discretion results in a denial of legitimate discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 170, fn. 11; Lehman v. Superior Court, supra, 179 Cal.App.3d at p. 562.)
2.Polanski May Not Assert His Privilege Against Self–Incrimination
It is well settled that the privilege against self-incrimination may be invoked not only by a criminal defendant but also by parties to a civil action. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712.) Such invocation by a party to a civil action may result in the imposition of a wide range of sanctions. Where it is asserted by a plaintiff, dismissal of the action may be appropriate; however the assertion of the privilege by a defendant raises different policy concerns. A defendant has not initiated the action and the denial of a right to defend would be unduly harsh and a denial of due process. Thus, generally speaking, lesser sanctions might be imposed where the assertion of the privilege deprives the opponent of important testimonial or documentary evidence.8
Polanski, in asserting the privilege as the basis for his refusal to respond to certain admission requests, has denied Jane discovery which is relevant and to which she would otherwise be entitled. Jane insists Polanski cannot do this. She urges upon us two reasons. First, she argues section 2033, subdivision (n) (see fn. 2, ante ) has the effect, in a proper case, of a use immunity statute. Second, his plea of guilty and detailed admission of the elements of the crime of unlawful sexual intercourse 9 constitute a waiver of the privilege. We will discuss these two arguments in reverse order.
This issue need not detain us long. The mere circumstance that Polanski pled guilty to one of the six criminal charges filed against him did not constitute a waiver of his Fifth Amendment privilege. The privilege against self-incrimination survives the entry of a guilty plea and continues to exist until the defendant is sentenced. (People v. Manago (1990) 220 Cal.App.3d 982, 989; People v. Kizzee (1979) 94 Cal.App.3d 927, 938–939.) Until that time, a criminal defendant still may move to withdraw the plea and is entitled to a liberal exercise of the trial court's discretion in ruling on his motion. (Pen.Code, § 1018; People v. Kizzee, supra, 94 Cal.App.3d at pp. 938–939.) Not only has Polanski not reached the point where his guilty plea has been finalized by imposition of sentence, but each of the admission requests submitted by Jane asks him to admit criminal acts which are well beyond the scope of the crime to which he actually pled guilty. She asks him, in effect, to admit that he committed one or more elements of the crimes charged in those counts which were to be dismissed under his plea bargain. If he were ever to return to California and his plea bargain and guilty plea were set aside (see People v. Cruz (1988) 44 Cal.3d 1247, 1250), nothing in this record suggests that prosecution on those charges could not proceed.10
Thus, it would seem beyond dispute, absent the impact of section 2033, subdivision (n), that Polanski's admission of Jane's requests would tend to incriminate him. His plea of guilty to a charge which is not even the subject of the admission requests here at issue could hardly constitute a waiver of his right to resist the potential incrimination. We therefore must conclude that Polanski has not waived his right to assert his privilege against self-incrimination. However, if there has been no waiver, we must determine whether the relevant discovery statute confers “use immunity” which prevents Polanski's assertion of the privilege.
b. Use Immunity
Jane contends that the last sentence of section 2033, subdivision (n), which prohibits the use of an admission in any manner in any other proceeding, effectively grants Polanski immunity from the use of his admissions in a criminal proceeding and thus defeats his assertion of the self-incrimination privilege. We believe Jane is correct in this contention.
The discovery statutes serve the important public purpose of eliminating the “game” element from litigation and assisting the parties to obtain the facts and evidence necessary to the expeditious resolution of disputes. In addition, section 2033, governing requests for admission, promotes judicial economy by setting triable issues at rest, so that they will not have to be tried. (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429; Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765, 769. See generally, 1 Hogan, Modern Cal. Discovery (4th ed. 1988) Requests for Admission, § 9.1, pp. 533–534.) 11
In view of the important fact-finding and issue-narrowing purposes of the discovery statutes, liberality in allowing discovery and, in particular, requiring admissions when properly requested, is the rule in the absence of well-established cause for denial. (Davies v. Superior Court (1984) 36 Cal.3d 291, 300; Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 377.) Section 2017, subdivision (a), mandates a very broad scope of permissible discovery. It states, “unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action․” (Emphasis added.) Obviously, if section 2033, subdivision (n), does confer a use immunity which would prevent any incriminatory impact by Polanski's admission of the subject requests, the self-incrimination privilege could not be asserted and the limitation in section 2017, subdivision (a), would have no application.
Poised against the goals of civil discovery in this case is the defendant's privilege against self-incrimination, a privilege which “reflects many of our fundamental values and most noble aspirations,” (Murphy v. Waterfront Commission of New York (1964) 378 U.S. 52, 55 [12 L.Ed.2d 678, 84 S.Ct. 1594] ), has been held to be the “essential mainstay” of our adversary system (Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 84 S.Ct. 1489] ), and is made applicable to the states through the Fourteenth Amendment. (Id., at p. 8.)
The privilege is accorded a liberal construction in favor of the right it is intended to secure. (Hoffman v. United States (1951) 341 U.S. 479, 486 [95 L.Ed. 1118, 71 S.Ct. 814].) Thus, a witness is not required to prove a tendency to incriminate, but is entitled to claim the privilege if he establishes only that an answer might be incriminating. (Id., at pp. 486–487. Cf. Evid.Code, § 404.) Further, the privilege extends not only to answers that would in themselves support a conviction under a criminal statute but also to those which would furnish “a link in the chain of evidence” needed to prosecute the claimant for a crime. (Hoffman v. Unite d States, supra, 341 U.S. at p. 486; Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326.)
The Fifth Amendment privilege is not unlimited, however. A witness otherwise entitled to refuse to answer questions on the ground of the privilege against self-incrimination may nevertheless be compelled to answer if granted immunity against prosecutorial use of the answer and evidence derived from the answer in a criminal proceeding against the witness. (Kastigar v. United States (1972) 406 U.S. 441, 453 [32 L.Ed.2d 212, 92 S.Ct. 1653]; People v. Superio r Court (Kaufman) (1974) 12 Cal.3d 421, 428–429.) For example, under California's legislative policies promotive of civil discovery, a civil litigant is entitled in California to seek a protective order which grants use and derivative use immunity to a witness to the extent necessary to effectuate the litigant's discovery rights. (Daly v. Superior Court (1977) 19 Cal.3d 132, 147.)
(1) Construction and Application of Section 2033, Subdivision (n)
To compel testimony over a claim of the privilege, the immunity given the witness must be “coextensive with the scope of the constitutional provision.” (Kastigar v. United States, supra, 406 U.S. at p. 449; Counselman v. Hitchcock (1892) 142 U.S. 547, 563 [35 L.Ed. 1110, 12 S.Ct. 195]; People v. Superior Court (Kaufman), supra, 12 Cal.3d at p. 428.) The requirement of coextensiveness is met by a grant of immunity which prohibits the prosecutorial use of the witness's testimony and of any information directly or indirectly derived from such testimony. (Kastigar v. United States, supra, 406 U.S. at p. 453; Zicarelli v. Investigation Commission (1972) 406 U.S. 472, 475 [32 L.Ed.2d 234, 92 S.Ct. 1670]; People v. Gwillim (1990) 223 Cal.App.3d 1254, 1266.) Such “use and derivative use” immunity meets constitutional standards because it “leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege.” (Kastigar v. United States, supra, 406 U.S. at p. 462; Murphy v. Waterfron t Commission of New York, supra, 378 U.S. at p. 79.)
It has been held that former section 2033, subdivision (c), from which section 2033, subdivision (n), is derived, did not confer an immunity coextensive with the Fifth Amendment privilege and thus was not adequate to overcome a claim of the privilege. (Smith v. Superior Court (1980) 110 Cal.App.3d 422, 424–425.) Former section 2033, subdivision (c), provided: “Any admission made by a party pursuant to [a request for admissions] is for the purpose of the pending action only and neither constitutes an admission by the party for any other purpose nor may be used against the party in any other action.” (See West's Ann. Civ. Pro.Code (1992 pocket supp.), App. § 2033.)
In Smith v. Superior Court, supra, 110 Cal.App.3d 422, a defendant in a paternity action was served with requests for admissions seeking to establish his relationship with the mother of the child whose paternity was questioned. If made, the admissions would have given rise to a “conclusive presumption” that the mother's issue was a “child of the marriage.” This would have formed the basis for a determination of legal paternity and an obligation of support. Such legal conclusion also could have served as the basis for a criminal prosecution under Penal Code section 270 for a failure to provide past support and would have been admissible under section 270e to prove the offense. Absent a specific grant of use and derivative use immunity, the Smith court held the defendant was entitled to assert the self-incrimination privilege as the ground for an objection to the admission requests. (110 Cal.App.3d at p. 425.) 12 In other words, despite the former statute's language limiting the use of an admission, it did not protect the defendant from exposure to criminal prosecution based on the derivative use of his admissions. This being the case, the immunity conferred by the former statute was insufficient to defeat the defendant's claim of privilege.13
In this regard, section 2033, subdivision (n), which provides that an admission “shall not be used in any manner ” against the answering party in any other proceeding (emphasis added), is significantly different from former section 2033, subdivision (c). We have discovered no legislative history which deals directly with the reason for the use of this more restrictive language.14 We therefore examine the statute in accordance with those accepted principles of statutory construction which require us to liberally construe and apply a statutory provision so as to carry out its stated or perceived purpose to the fullest extent possible. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679.)
As we have already discussed, requests for admission serve the salutary purpose of setting issues at rest. (Cembrook v. Superior Court, supra, 56 Cal.2d at p. 429.) This goal will not be achieved if we so narrowly construe the statute as to permit a party to refuse to respond on the ground of potential self-incrimination. If a construction of section 2033, subdivision (n), can reasonably be made which provides a constitutionally adequate immunity and thus prevents the assertion of such a privilege, then we should adopt it. The question is, can the prohibition against the use of admissions “in any manner” be applied so as to effectively confer use immunity on a party who has been compelled to respond to requests for admission after refusing to do so on the basis of the self-incrimination privilege?
Our analysis begins with an examination of the immunity afforded by 18 United States Code section 6002, the statute found to be constitutionally adequate in Kastigar v. United States, supra, 406 U.S. 441.15 In that case, a federal grand jury summoned Kastigar to testify and granted him immunity under 18 United States Code section 6002. Such immunity precluded the use of Kastigar's testimony and of any evidence derived from it in any criminal proceeding. Relying upon language in Counselman v. Hitchcock, supra, 142 U.S. 547, Kastigar opposed the order of immunity on grounds that the immunity granted was not co-extensive with the Fifth Amendment privilege and that only a grant of transactional immunity would be sufficient to supplant the privilege and compel his testimony. (Kastigar, 406 U.S. at p. 449.)
The Kastigar court concluded that Counselman 's requirement of transactional immunity was broader than the constitutional protection, not necessary, and therefore dictum, and not to be considered binding authority. (406 U.S. at pp. 454–455.) The Kastigar court concluded the “use and derivative use” immunity afforded by section 6002 was sufficient to overcome a claim of the Fifth Amendment privilege. The Supreme Court found this conclusion to be “consistent with the conceptual basis of Counselman ” (406 U.S. at p. 453), despite the broader language in Counselman to the effect that nothing short of transactional immunity could overcome an assertion of the Fifth Amendment privilege. (Counselman, supra, 142 U.S. at pp. 585–586.) In so concluding, the Court stated that, “The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of “penalties affixed to ․ criminal acts.” ’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecution from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” (Kastigar v. United States, supra, 406 U.S. at p. 453; emphasis in original.)
Section 2033, subdivision (n)'s prohibition against the use of an admission “in any manner ” in any other proceeding parallels the language used by the Kastigar court to support its conclusion that testimony given under a grant of use and derivative use immunity is coextensive with the Fifth Amendment privilege. Use and derivative use immunity, the Kastigar court reasoned, prohibits prosecutorial authorities from using immunized testimony “in any respect,” and consequently “insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” (406 U.S. at p. 453.)
A construction of section 2033, subdivision (n), which confers use and derivative use immunity is far more consistent with the plain meaning of the phrase “in any manner” than is a construction which would limit the immunity conferred to an immunity from direct use.16 In addition, such a construction reconciles constitutional requirements (Calif. Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 591; Mendez v. Kurten (1985) 170 Cal.App.3d 481, 485) with the statute's dual purposes of (1) assisting parties to obtain evidence necessary to the resolution of disputes (Davies v. Superior Court, supra, 36 Cal.3d at p. 299) and (2) setting issues at rest (Cembrook v. Superior Court, supra, 56 Cal.2d at p. 429). When these considerations are balanced and viewed in the light of the most reasonable interpretation of the statute's language (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230), we are satisfied that “use and derivative use” immunity, such as was found constitutionally adequate in Kastigar, is conferred by the statute's prohibition against the use of admissions “in any manner” in any other action.
(2) Any Grant of Immunity Imposes an Independent Source Burden on the Prosecution
As with the immunity conferred by 18 United States Code section 6002, a person responding to requests for admission under the immunity conferred by section 2033, subdivision (n), “is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities.” (Cf. Kastigar, supra, 406 U.S. at p. 460) The policies underlying the Fifth Amendment require that once a defendant in a criminal action establishes that he or she has provided testimony under a grant of immunity, including admissions under section 2033, subdivision (n), the prosecution then has the burden of showing its evidence is derived from a legitimate source wholly independent of the immunized testimony. (Ibid.)
It is this burden on the prosecution that makes a use and derivative use immunity statute enforceable, and thus effectively equivalent to an exercise of the constitutional privilege. The burden of proving a source of evidence independent of immunized testimony “is very substantial protection, commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. [A use and derivative use immunity statute], which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties. The statute, like the Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate independent sources.” (Kastigar, supra, 406 U.S. at p. 461.)
Our conclusion that section 2033, subdivision (n), provides an immunity equivalent to that found constitutionally adequate in Kastigar includes the corollary conclusion that in any criminal prosecution of a person who has made admissions immunized under section 2033, subdivision (n), the prosecution bears the burden of proving an independent source of its evidence. The “substantial protection” afforded by that burden of proof renders the immunity provided by section 2033, subdivision (n), coextensive with the constitutional privilege because it leaves one responding to a request for admissions “in substantially the same position” as if he or she had claimed the privilege against self-incrimination.
(3) Immunized Admissions Will Not Unduly Hamper Subsequent Criminal Prosecutions.
A grant to a potential criminal defendant of use and derivative use immunity can, of course, create serious difficulties in the ultimate prosecution of a witness-defendant. (See, e.g., United States v. North (D.C.Cir.1990) 910 F.2d 843, 853–873; United States v. Catalano (2d Cir.1974) 491 F.2d 268, 272; United States v. McDaniel (8th Cir.1973) 482 F.2d 305, 311–312.) Such difficulties arise when a witness-defendant is prosecuted and demonstrates that he or she has previously testified under a grant of immunity. As we have noted, this circumstance places upon the prosecution the burden of establishing that its evidence was derived from legitimate sources wholly independent of the immunized testimony. (Kastigar v. United States, supra, 406 U.S. at p. 460.) In Daly v. Superior Court, supra, 19 Cal.3d 132, the California Supreme Court stated that, given the foregoing burden upon the prosecution, “the very existence of [prior immunized] testimony may present serious problems of proving its complete independence from evidence introduced in the criminal proceeding.” (19 Cal.3d at p. 145, emphasis in original.)
Acknowledging the problems for the prosecution of crime that can result from grants of immunity, and yet recognizing at the same time the legitimate need of civil litigants for testimony that might be subject to the constitutional privilege, the Supreme Court in Daly, supra, carefully spelled out just how a civil court should go about granting use immunity to a party or witness who blocked production of relevant evidence by the assertion of the privilege.
The Daly court recognized that as long as subsequent criminal prosecutions were not unduly hampered, “a civil litigant is entitled to the inclusion in a protective order under Code of Civil Procedure section 2019, subdivision (a)(1), of whatever use and derivative use immunity is required to eliminate unnecessary barriers to effectuation of the litigant's discovery rights.” (Daly, supra, 19 Cal.3d at p. 147.) The court then outlined the procedure which the trial court was required to follow in order to ascertain whether a grant of immunity for testimony sought in civil litigation will produce an “unduly detrimental effect ․ upon future criminal proceedings.” (Daly, supra, 19 Cal.3d at p. 148.) 17 This included a requirement of notice to the local district attorney for the County, the State Attorney General and the United States Attorney for the local federal district. An objection to the extension of use immunity by any of these prosecutorial offices must be treated by the trial court as conclusively establishing that such immunity cannot be given.
We acknowledge the construction we have given to section 2033, subdivision (n), means that, with respect to admissions, the statute has replaced the procedures prescribed in Daly with a grant of immunity for all admissions made under section 2033, where responses are compelled over an assertion of the privilege against self-incrimination.18 However, recognizing the importance of the policy concerns expressed in Daly, we hold that such a grant of immunity necessarily requires that the responding party first assert the privilege and have the trial court determine whether it applies and has been properly raised. Such a limitation is consistent with and required by the rule that the privilege is waived unless asserted in a timely and appropriate manner. (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 708, 709, 711, 712.) Moreover, from a policy point of view, a responding party who has failed to raise the privilege should not thereafter be able to claim that a response to an admission request was immunized so as to require a prosecutor to meet the burden under Kastigar of demonstrating an independent source of evidence.
We, of course, do not presume that the Legislature in enacting section 2033, subdivision (n), intended to overthrow the well-established and carefully devised procedures of Daly. (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644.) But we do emphasize that in enacting the more expansive provisions of section 2033, subdivision (n), as part of the Civil Discovery Act of 1986, the Legislature is presumed to have been fully aware of the reasoning and conclusions of the Daly decision which had been handed down nine years earlier and to have amended section 2033 in light thereof. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727–728.) Essential to a proper understanding of Daly 's reasoning is the court's recognition in Daly that the protection of prosecutorial interests in the granting of use and derivative use immunity lies not in rigid procedural requirements, but in “the more general condition ․ that the granting of immunity not ‘unduly hamper’ subsequent criminal prosecutions.” (Daly v. Superior Court, supra, 19 Cal.3d at p. 147.) The general grant of immunity for admissions made under section 2033 is thus entirely consistent with the reasoning and requirements of Daly, for where admissions, and admissions only, are concerned, a grant of use immunity presents no threat of unduly hampering a subsequent criminal prosecution.
This is so, because admissions, unlike other forms of discovery, provide no information which can be “derivatively” used to support or assist a subsequent criminal prosecution. (Cf. United States v. North, supra, 910 F.2d 843 and United States v. McDaniel, supra, 482 F.2d 305.) An admission provides no information beyond the fact that the person making the admission concedes the truth of the information already stated in the request. Indeed, it is for this reason that requests for admission have been considered less akin to true discovery procedures than to summary adjudication procedures. They are primarily designed not to “discover” facts and expedite trial preparation, but to render it unnecessary to try otherwise triable issues of fact or law.19
Rather than furnishing evidence or providing a lead to evidence, admissions merely acknowledge facts that have already been ascertained or suspected by the party propounding the request for admissions, and are necessarily based upon sources ot her than the responding party's immunized testimony. If the propounding party ascertained such facts, the prosecution in a potential criminal case can do so as well. From the wording of the request itself, the prosecutor can develop whatever information is available whether the witness admits it or declines to respond. The Fifth Amendment in no way forbids the prosecution from obtaining from the party who propounded the request for admissions the information upon which each request relied and the identity of sources from which further information relating to each request might be sought.
For the prosecutor in the criminal action to establish a source of evidence independent of the defendant's admission, it will only be necessary to demonstrate that either the prosecutor or the party who requested the admission in the civil action originally obtained the incriminating information from sources other than the admission. Where the information was fully formulated and set forth in the request for admissions before the defendant admitted it, such a demonstration will hardly be a daunting task for the prosecution. The fact that a witness-defendant admitted the facts after someone else's investigation independently established them will not raise serious doubt that the facts were independently ascertained.20
Nor will a criminal prosecution be stymied by the prosecutor's discovery that such independently investigated and established facts were also admitted. Mere knowledge by the prosecution of immunized testimony is not “use” and does not violate the constitutional privilege. (People v. Gwillim (1990) 223 Cal.App.3d 1254, 1270–1271. Accord, United States v. Catalano, supra, 491 F.2d at p. 272.) Neither can it reasonably be imagined that any “encouragement” which a prosecutor might receive from a party's admission, as opposed to a refusal to respond based on the privilege, constitutes a derivative use of the admission. Any such encouragement would be illusory, because, as a practical matter, the prosecution could receive no greater encouragement from an outright admission of a potentially incriminating matter than from a refusal to admit on grounds of the self-incrimination privilege. Thus, an admission “leaves the witness and the prosecutorial authorities in substantially the same position” as if the privilege had been claimed.
(4) Impact of the Immunity on Other Jurisdictions
Finally, we are satisfied that the protection extended by section 2033, subdivision (n), includes protection against the use of admissions under section 2033 not only in any criminal proceeding in the State of California, but in any criminal proceeding in any other jurisdiction within the United States. The United States Supreme Court has expressly held that the constitution forbids the use in any federal criminal prosecution of testimony given under a grant of immunity in any state proceeding. (Murphy v. Waterfront Commission of New York, supra, 378 U.S. at p. 79.) The same constitutional principle logically forbids use of such immunized testimony in any criminal proceeding in any other state. (Malloy v. Hogan, supra, 378 U.S. at p. 8.) Thus, Polanski's argument that an admission might expose him to criminal liability in some other jurisdiction is without merit.
In sum, the immunity provided by section 2033, subdivision (n), leaves both the party required to respond to a request for admission and the prosecutor in any potential criminal action against the responding party in substantially the same position as if the responding party had claimed the Fifth Amendment privilege. (Cf. Kastigar v. United States, supra, 406 U.S. at p. 462.) As we construe the statute, it prohibits all use against the party in any criminal proceeding of his admissions and any matter derived from them. Because an admission in itself provides no information that can be used derivatively to discover further evidence, but only eliminates the need to prove the matter by acknowledging information already established or suspected, the prosecutor will gain no more assistance from the admission than would have been gained from information provided by the request itself if the privilege were asserted. Thus, there will not be the prosecutorial difficulty in meeting the burden to prove an independent source of evidence that often occurs when ordinary testimony has been given under immunity.
We thus conclude that in the unique case of requests for admissions section 2033, subdivision (n), grants “use and derivative use” immunity to any party making an admission where the party first asserts a Fifth Amendment privilege and is directed by the court to respond. Such immunity is coextensive with the privilege against self-incrimination, and thus admissions may be compelled against a claim of the privilege. The trial court in this case should have granted Jane's motion to compel further responses.
3.Polanski Has Not Waived The Attorney–Client Privilege As To The Requested Written Communications
“The attorney-client privilege has been a hallmark of Anglo–American jurisprudence for almost 400 years. [Citations.] The privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client. [Citation.] [[[[[[[[21 ] Clearly, the fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.] In other words, the public policy fostered by the privilege seeks to insure ‘the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.’ [Citation.] [¶] Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship․ ‘The Privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.’ [Citations.]” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599–600.)
No dispute exists that the documents which Jane seeks to have produced are clearly attorney-client communications which, unless there has been a waiver, are privileged from disclosure. Under Evidence Code section 912, a waiver occurs where a significant part of the communication has been disclosed. Without doubt, Polanski has, by his published autobiography, waived any attorney-client privilege that might have existed with respect to the communications described in that book. However, it does not follow that he has waived the privilege as to all communications he may have had with his counsel.
The trial court conducted an in camera inspection of the five disputed letters and concluded from its examination that they do not include communications included in the book, or at least that a “significant part” of those writings has not been disclosed by the book. The disputed letters have also been furnished to this court by Polanski's counsel. We have examined them and compared them to the relevant portions of the book. We agree with the trial court. Polanski has not waived the attorney-client privilege to prevent disclosure of the five letters which he sent to his attorney (see fn. 6, ante ) .
4.Unrestricted Discovery Into Polanski's Financial Condition Should Have Been Permitted
The trial court granted Jane's request for discovery into Polanski's financial condition. However, it ordered Polanski did not have to provide that information any sooner than 120 days before trial.22
In Cobb v. Superior Court (1979) 99 Cal.App.3d 543, the court held that the trial judge should consider whether disclosure of financial information should not be delayed to a certain number of days before trial “sufficiently in advance to give opportunity to the plaintiff to challenge, if necessary, and sufficiently close to afford additional protection to the defendant.” (Id., at p. 551.) Obviously, this is a matter within the sound discretion of the trial judge. However, a proper exercise of such discretion must involve a true balancing of the appropriate factors in light of all circumstances of the particular case. Specifically, an order respecting the timing of financial disclosures should be based on a careful consideration of what amount of time will, under all the circumstances of the case, be sufficient to give opportunity to the plaintiff to challenge, if necessary, and yet be sufficiently short to protect the defendant's privacy.
A period of 120 days might suffice the plaintiff in the ordinary case, where the defendant and his assets are to be found within the jurisdiction. It would seem self-evident, however, that the same period of time is unlikely to afford the plaintiff any real opportunity to measure the assets of a defendant who has fled the jurisdiction and may reasonably be expected to have either secreted assets or taken substantial assets with him.
It has been determined that a jury should make its determination of punitive damages based on a defendant's net worth at the time of trial. (Zhadan v. Downtown Los Angeles Motor Distributors, Inc. (1979) 100 Cal.App.3d 821, 839.) The earlier discovery of such asset information will give Jane a reasonable opportunity to verify that information, but will not cause Polanski any significant harm or prejudice. If his assets increase, Jane may or may not become aware of such fact. If not, she will have information only as to the lesser values. However, if Polanski's assets at the time of this trial are significantly less than they are found to be through discovery conducted substantially before trial, no one will be in a better position than Polanski to know it. There will be no impediment to his offering proof at trial of the diminution in his net worth. By seeking early financial disclosures, Jane, of course, runs and must accept the risk that there may an undisclosed increase in Polanski's assets after her discovery has been completed.
In view of the exceptional difficulties often involved in discovering assets that are either located abroad, or belong to persons residing in foreign countries, we find the trial court abused its discretion in limiting Jane's discovery of Polanski's financial condition until 120 days before trial only. Under the facts of this case, such discovery should have been permitted without restriction.
The alternative writ is discharged. A peremptory writ shall issue directing the trial court to vacate its orders of June 19, 1991, with respect to the requests for admission submitted by Jane and her request for immediate discovery of Polanski's financial condition. The trial court is directed to issue a new and different order (1) granting Jane's motion to compel further responses to her request for admissions and (2) granting Jane's request for immediate discovery of Polanski's financial assets. The trial court's order of June 19, 1991, refusing to compel production of Polanski's written communications with his counsel, was correct and, with respect to this issue, Jane's writ petition is denied.
I respectfully dissent from the majority's opinion eliminating the mandate of Daly v. Superior Court (1977) 19 Cal.3 d 132, that requires notification to and input from prosecuting officials before the trial court may grant use and derivative use immunity in a civil case.
I further dissent from the majority's failure to require the trial judge to make particularized findings before sustaining the privilege against self-incrimination.1
A. The Majority Imprudently Supersedes Daly.
The California Supreme Court in Daly, supra, recognized the potential danger to criminal prosecutions by a grant of use and derivative use immunity in a civil case. Such an immunity would “encumber any future criminal proceeding ․ with a ‘heavy burden’ by ‘impos[ing] on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.’ [Citation.]” (Daly v. Superior Court, supra, at p. 138.) The Supreme Court concluded “that to impose such an obstacle to criminal proceedings over the objection of prosecuting authorities would constitute improper judicial interference with prosecutorial discretion.” (Ibid.)
The Daly opinion sets out the requirements that must be met before use and derivative use immunity may be granted: 2
1. Adequate notice to prosecuting authorities.
2. The notice must state the subject matter of the inquiries to which the witness's answers are to be immunized from use or derivative use. The statement must be in a form which, when incorporated into the immunity order, will provide the witness with a clear guide to what questions are within and what are without the immunity grant.
3. The trial court must treat a prosecutor's objection and declaration as conclusively establishing that an immunity order cannot be issued because it would or might unduly hamper a criminal prosecution. (Daly, supra, at p. 148.)
The majority acknowledges the Daly case. The majority opinion states: “ ‘[T]he very existence of [prior immunized] testimony may present serious problems of proving its complete independence from evidence introduced in the criminal proceeding.’ [Citation.] ․ [T]he Supreme Court in Daly ․ carefully spelled out just how a civil court would go about granting use immunity to a party or witness who blocked production of relevant evidence by the assertion of the privilege.”
The majority also recognizes that the Legislature did not intend “to overthrow the well-established and carefully devised procedures of Daly ” when amending the discovery statutes in 1986. Nevertheless the majority comes very close to achieving what the Legislature declined to undertake. Rejecting the important precautionary procedures described in Daly, the majority replaces these procedures with an a priori, wholesale grant of immunity, regardless of the prosecutor's views.
Several false premises underlie the majority's decision. First, the majority states: “ ․ [W]here admissions, and admissions only, are concerned, a grant of use immunity presents no threat of unduly hampering a subsequent criminal prosecution.” (Emphasis in original.) If this were truly the case, however, where is the harm in following the Daly requirements concerning the prosecutor? In fact, of course, admissions protected by a grant of immunity can bring a prosecution to a halt.
Second, the majority asserts that admissions merely acknowledge facts that have already been ascertained. Regarding the requests for admissions authorized by Code of Civil Procedure section 2019, subdivision (a), section 2017 greatly expanded the scope of discovery. Section 2017, subdivision (a), states that any party may obtain discovery “if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Emphasis added.) In light of such statutory language, the majority's claim that requests for admissions can seek only information which the requesting party already knows is clearly wrong.
Third, the majority makes the astounding statement that admissions provide no information that can be used to support or assist a criminal prosecution. Such admissions, of course, can provide direct evidence usable in a criminal trial, and may also provide the basis for derivative evidence that is produced following investigation. The danger that admissions may affect a criminal prosecution emerges from even a quick reading of Code of Civil Procedure section 2017. The majority's failure to recognize this danger constitutes a critical flaw which undermines its opinion.
The majority fails to make a persuasive case for its radical break from Daly. I believe the Supreme Court's decision in Daly retains validity and governs the case at bench.
B. The Trial Court Must Conduct a Hearing and Must Make Particularized Findings Before Sustaining the Privilege Against Self-incrimination.
California law is clear that a party asserting the privilege against self-incrimination must do more than just claim the privilege. The applicable law is set out in Troy v. Superior Court (1986) 186 Cal.App.3d 1006 at pages 1010–1011, as follows:
“ ․ [T]he privilege may not be asserted by merely declaring that an answer will incriminate; it, must be ‘evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ․ It is the trial court's function to determine whether such a real danger exists.” (Citations omitted; see also Evid.Code, § 404.)
The court must decide whether the Fifth Amendment privilege protects a person. The court decides this question only after conducting a particularized inquiry whether the privilege is well-founded. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.)
The trial court in this case did not conduct such a particularized inquiry. Instead, the court turned the rule on its head, stating, “ ․ [Iln the absence of some sort of certainty that it cannot be used against him, then he has an absolute right to assert the Fifth.”
The court speculated on the matter but made no particularized inquiry. The court stated the likelihood that Polanski is not coming back to California. Furthermore the court got no answer to its question whether the additional counts had been dismissed or, if they had, whether they could be reinstated.
The trial court should have required Polanski to show that there is a real danger that his answers could incriminate him. It is obvious there will be no detriment to Polanski so long as he does not return to California. Polanski made no showing there was even a remote possibility that he will return to California. Neither Polanski, who was not present, nor his counsel, made such representations. The court heard absolutely no information on this subject.
In Doe v. Superior Court (Polanski) (1990) 222 Cal.App.3d 1406, 1414, at footnote 3, the dissenting justice responded to the majority's assertion that Polanski could be ordered to attend a deposition in Los Angeles: “Breathes there a soul who honestly believes he would obey such an order?” Polanski presented no information as to whether the additional counts could be used against him even if he were to return to California. The trial court should not have sustained the privilege on the showing in this case.
Finally, the trial court did not make the required particularized findings. On this basis alone, the trial court should not have sustained the privilege.
The majority does recognize that Polanski has to assert the privilege before the court and the court must determine “whether it applies and has been properly raised.” However, the majority simply states that a criminal defendant who has pled guilty may assert the privilege until such time as sentencing occurs. Because Polanski's voluntary absence from California insures that sentencing will never take place, such a ruling in practical effect simply benefits the fugitive and sub silentio sustains the privilege.
The majority (1) overthrows Daly, and (2) removes the prosecutor's role in grants of immunity. All of this is accomplished without the required particularized inquiry and findings as to whether the trial court properly sustained the privilege against self-incrimination in the first place.
I respectfully dissent.
ORDER GRANTING PETITION FOR REHEARING
(Sept. 11, 1992)
The request of the Attorney General of the State of California to appear in this matter as an amicus, which was filed on September 4, 1992, is granted. The further request of the Attorney General that this court grant a rehearing with respect to its decision, filed herein on August 20, 1992, is also granted.
Upon such rehearing, however, we intend to consider only the specific issue raised by the Attorney General. The additional briefing which will be requested herein shall be directed to a discussion of the following questions:
1. Is Code of Civil Procedure section 2033, subdivision (n), properly construed so as to confer use and derivative use immunity upon a party responding to an admission request?
2. Is it appropriate to require that any party claiming such immunity first have asserted the privilege against self-incrimination in a proper and timely manner?
3. In view of the provisions of section 2033, subdivision (n), are the special procedures set forth in Daly v. Superior Court (1977) 19 Cal.3d 132, nonetheless applicable to admission requests?
4. How and in what manner could the recognition of use or derivative use immunity, as set forth in the court's opinion, in any way unduly hamper a subsequent criminal prosecution? The discussion of this question should provide concrete and specific examples.
5. With respect to the question of whether prosecutorial focus or motivation could constitute a possible derivative use, how would the admission of a particular request differ in its impact of motivating or informing the prosecutor (or otherwise focusing his attention) than would a party's refusal to respond on the basis of the self-incrimination privilege?
This matter will be calendared for oral argument on November 19, 1992, at 9:00 a.m. The Attorney General, as well as any other amici the court may hereafter recognize, shall have to and including October 16, 1992 to file letter briefs. The parties hereto shall have to and including November 7, 1992 to file such responsive letter briefs as they deem appropriate.
For the guidance of the parties and the trial court, we wish to emphasize that we do not intend to review or reconsider our decision with respect to the issues of attorney-client privilege or the scheduling of discovery of the financial condition of the real party in interest. Our rulings on those two issues will be restated in any subsequent opinion.
1. Jane's First Amended and Supplemental Complaint, filed August 20, 1991, also alleged causes of action for (1) False Imprisonment, (2) Seduction (Civil Code, § 49, subd. (b)), (3) Intentional Infliction of Emotional Distress, (4) Negligent Infliction of Emotional Distress, (5) Invasion of Privacy and (6) Recovery of Interest in Trust Property (Proceeds from sale of felon's story [Civ.Code, § 2225] ).
2. Code of Civil Procedure section 2033, subdivision (n), provides:“Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under subdivision (m). However, any admission made by a party under this section is (1) binding only on that party, and (2) made for the purpose of the pending action only. It is not an admission by that party for any other purpose, and it shall not be used in any manner against that party in any other proceeding.” (Emphasis added.)Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
3. Polanski, in his 1984 autobiography, Roman by Polanski (Wm. Morrow & Co., Inc., 1984), describes his justification for becoming a fugitive in the following words:“Since the judge seemed determined to prevent me from ever again living and working in the United States, and since it was clear that I had served my forty-two days in Chino for nothing, an obvious question arose: what had I to gain by staying? The answer appeared to be: Nothing.” (Roman by Polanski at p. 423.)
4. The requests for admissions here at issue are Nos. 27, 28, 29, 32 and 33. Those requests, and Polanski's responses thereto, are as follows:”REQUEST FOR ADMISSION NO. 27:On March 10, 1977, after giving Jane Doe a glass of champagne, Roman R. Polanski also gave Jane Doe a portion of a quaalude pill.“RESPONSE TO REQUEST FOR ADMISSION NO. 27:Upon advice of counsel, defendant hereby asserts the privilege of the 5th Amendment and respectfully declines to answer of [sic] the ground that the answer may tend to be incriminating.“REQUEST FOR ADMISSION NO. 28:At the time Roman R. Polanski gave Jane Doe the quaalude pill, he knew that such a pill was a controlled substance.“RESPONSE TO REQUEST FOR ADMISSION NO. 28:Upon of advice of counsel, defendant hereby asserts the privilege of the 5th Amendment and respectfully declines to answer of [sic] the ground that the answer may tend to be incriminating.“REQUEST FOR ADMISSION NO. 29:At the time Roman R. Polanski gave Jane Doe the quaalude pill, he knew that it was against the law to do so.“RESPONSE TO REQUEST FOR ADMISSION NO. 29:Vague, ambiguous and upon advice of counsel, defendant hereby asserts the privilege of the 5th Amendment and respectfully declines to answer of [sic] the ground that the answer may tend to be incriminating.“REQUEST FOR ADMISSION NO. 32:On March 10, 1977, Roman R. Polanski sodomized Jane Doe.“RESPONSE TO REQUEST FOR ADMISSION NO. 32:Upon advice of counsel, defendant hereby asserts the privilege of the 5th Amendment and respectfully declines to answer of [sic] the ground that the answer may tend to be incriminating.“REQUEST FOR ADMISSION NO. 33:On March 10, 1977, Roman R. Polanski engaged in oral copulation with Jane Doe.“RESPONSE TO REQUEST FOR ADMISSION NO. 33:Objected to as vague, ambiguous and unclear as to the meaning of ‘engaged in oral copulation with Jane Doe.’“SUPPLEMENTAL RESPONSE TO REQUEST FOR ADMISSION NO. 33:Upon advice of counsel, defendant hereby asserts the privilege of the Fifth Amendment and respectfully declines to answer on the ground that the answer may tend to be incriminating.”
5. We are somewhat puzzled by this latter argument. We are of aware of no authority holding that Polanski's fugitive status deprives him of the right to assert his self-incrimination privilege and Jane cites us to none. Indeed, in her supporting briefs she does not explain the significance of this point or urge our consideration of it. We therefore shall not discuss it further.
6. Category 3 of Jane's request for production called for certain written communications. It and Polanski's final supplemental response thereto are set forth as follows:”CATEGORY NO. 3:“Any writing which refers to, is relevant to, embodies, evidences, constitutes or memorializes defendant's communication with any third person, other than plaintiff, regarding the INCIDENT and/or the CRIMINAL ACTION.“RESPONSE TO CATEGORY NO. 3:“Objection. This category includes documents protected by the attorney-client privilege. Without waiving said objection, defendant identifies the following documents:“(a) letter dated April 17, 1979 from defendant to his attorney, Douglas Dalton;“(b) a two page, undated letter from defendant to this attorney, Douglas Dalton, written in pencil;“(c) a one page, undated letter from defendant to his attorney, Doug Dalton, written in pencil;“(d) letter dated January 12, 1977, from defendant to his attorney, Douglas Dalton;“(e) letter dated October 7, 1977, from defendant to his attorney, Douglas Dalton;“Defendant is in possession of letters from third persons who state their reactions to the incident and/or criminal actions. To those letters, defendants objects to as not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. However, without waiving said objection, defendant will produce unsolicited letters from person unknown to him in which the incident/criminal action was referred to.”
7. The record before us includes excerpts from this publication. At page 399 of his book, Polanski mentions that his attorney in the criminal case, Douglas Dalton, told him he should discuss the case with no one and might be kept under surveillance. On page 401, Polanski gives details of a conversation with Dalton relating to the evidence given before the Grand Jury. On pages 404–406, Polanski reveals the discussions with Dalton concerning whether to go to trial or to enter a guilty plea. At pages 406–407, there is included information about “behind-the-scenes” negotiations regarding the possibility of a plea bargain. On page 408, Polanski mentions the court-ordered evaluation to determine whether he was a mentally disordered sex offender. On page 408, he reveals that Judge Laurence Rittenband had informed Dalton that he intended to sentence Polanski to “some time in prison.” On page 422, Polanski sets forth “Dalton's understanding” relating to possible prison time for Polanski and includes Dalton's in-chambers conversations with Judge Rittenband about the sentence. This excerpt continues with discussions between Dalton and Polanski about the possibility of a prison term. Polanski goes on to describe how, after that conversation, he walked out of Dalton's office, went to the office of one “Dino” and informed Dino of his plans to leave the country. After Polanski arrived in London, he called Dalton about the matter, then flew to Paris. On page 424, Polanski discusses his conversation with Dalton, who flew to Europe to try to talk Polanski into returning. Polanski then discusses further developments in the matter as relayed to him through Dalton. These conversations with Dalton include the motion to disqualify Judge Rittenband, after plans to sentence Polanski in absentia were announced. After Judge Rittenband voluntarily stepped down, the case was assigned to Judge Paul Breckinridge. Judge Breckinridge declined to sentence Polanski in absentia, removed the case from calendar and announced that, if and when Polanski returned, a new probation report would be necessary before sentencing. According to Polanski, all of this information was conveyed to him by Dalton.
8. Examples of such sanctions include, (1) exclusion of defenses which depend upon the denied testimony for proof and (2) exclusion of the defendant's prior or deposition testimony. (See, Alvarez v. Sanchez, supra, 158 Cal.App.3d at p. 713, fn. 3.)
9. The count to which Polanski pled guilty charged a violation of Penal Code section 261.5 which provides:“Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.”
10. The statute of limitations is tolled while Polanski remains a fugitive. The criminal prosecution of Polanski having been commenced by the filing of the accusatory pleading (Pen.Code, § 804), no time during which the charges remain pending is counted as part of any limitation of time for prosecution (Pen.Code, § 803, subd. (b)). Even if the charges were to be dismissed, as a fugitive from justice Polanski would not be entitled to rely upon the statute of limitations to bar them from being refiled. (People v. Perez (1991) 229 Cal.App.3d 302, 308; People v. Abayhan (1984) 161 Cal.App.3d 324, 331–332.) Obviously, the constitutional right to a speedy trial would not bar further proceedings on the charges after any amount of delay occasioned by Polanski's willful absence from the jurisdiction. (People v. Perez, supra, 229 Cal.App.3d at p. 309.)
11. In view of its “issue-narrowing” function, the request for admissions has variously been described as “more than a mere discovery device” (Jahn v. Brickey (1985) 168 Cal.App.3d 399, 404; emphasis added) and “not a discovery device” (Miller v. Marina Mercy Hospital, supra, 157 Cal.App.3d at p. 769; emphasis added). In our view, the request for admission is certainly “a vehicle of discovery” (Cem brook v. Superior Court, supra, 56 Cal.2d at p. 427), inasmuch as an admission or denial of any matter requested to be admitted or denied answers the important question of whether the particular matter will or will not be a contested issue in the case. “The most important objective of the request for admissions is to narrow the issues and save the time and expense of preparing unnecessary proof.” (Miller v. Marina Mercy Hospital, supra, 157 Cal.App.3d at p. 769.)This is still the case even though requests for admission are now characterized as “discovery” under the terms of the Civil Discovery Act of 1986. (See §§ 2019, subd. (a)(5) and 2033, subd. (a).) Nonetheless, admissions once made are conclusive (§ 2033, subd. (n)) and it is still true that they effectively set issues at rest so they “will not have to be tried.” (Cembrook v. Superior Court, supra, 56 Cal.2d at p. 429.)
12. The record reflects that the trial judge, in denying Jane's motion to compel responses, apparently relied entirely on the decision in Smith. However, he expressed considerable ambivalence and doubt in reaching this conclusion in light of the wording of the subsequently enacted section 2033, subdivision (n). It appears that he was concerned that the ruling in Smith might still have some vitality despite the change in the statutory language set out in section 2033, subdivision (n).
13. Federal cases construing Rule 36, subdivision (b), Federal Rules of Civil Procedure, have reached similar conclusions. Like former section 2033, subdivision (c), Rule 36(b) provides that admissions made in response to a request for admissions may not be used in another proceeding, but makes no provision regarding the derivative use of such admissions. At least three federal courts have found the rule, without more, does not confer an immunity that satisfies Fifth Amendment standards. (Gordon v. Federal Deposit Insurance Corporation (D.C.Cir.1970) 427 F.2d 578, 581; LeBlanc v. Spector (D.C. Conn.1974) 378 F.Supp. 310, 315; Federal Deposit Insurance Corporation v. Logsdon (W.D.Ky.1955) 18 F.R.D. 57, 58.) Cases which have held that the immunity conferred by Rule 36(b) is adequate to defeat a Fifth Amendment claim of privilege (Woods v. Robb (Fifth Cir.1948) 171 F.2d 539, 541; United States v. La Fontaine (D.C. R.I.1952) 12 F.R.D. 518, 520) have been criticized for overlooking the possibility of derivative use of admissions. (See, e.g., 8 Wright & Miller, Federal Practice and Procedure § 2018, p. 142; Heidt, “The Conjurer's Circle—The Fifth Amendment Privilege in Civil Cases ” (1982) 91 Yale L.J. 1063, 1067.)
14. Indeed, the Reporter's Notes To Proposed California Civil Discovery Act of 1986 (see CEB, Preparing Now For Discovery Under The New Act, October–November, 1986) make no reference to the last sentence of subdivision (n).
15. 18 United States Code section 6002 provides: “Whenever a witness refuses, on the basis of his [or her] privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—(1) a court or grand jury of the United States,(2) an agency of the United States, or(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order [e.g., to testify] under this part, the witness may not refuse to comply with the order on the basis of his [or her] privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”
16. We are not unmindful, of course, that the immunity statute struck down by the Supreme Court in Counselman v. Hitchcock, supra, 142 U.S. 547, prohibited the use “in any manner” of testimony sought to be compelled in that case (142 U.S. at p. 560), and that the Supreme Court construed that statute as permitting derivative use of that testimony. (Id., at p. 564.) However, the Supreme Court emphasized in Kastigar that it was only “this construction” of the statute which resulted in the conclusion that the statute's immunity was constitutionally inadequate. (406 U.S. at p. 450.) We are not compelled to construe our state's statute in the same manner.
17. The power of a court to grant immunity from the use and derivative use in a criminal proceeding of testimony given in a civil proceeding arises from the inherent power of the court to effect accommodations between the privilege against self-incrimination and the need of parties in litigation to obtain crucial information. (Daly v. Superior Court, supra, 19 Cal.3d at p. 147; People v. Superior Court (Kaufman), supra, 12 Cal.3d at p. 428.) Such power also derives from the trial court's authority to issue protective orders under section 2025, subdivision (i) (former section 2019, subdivision (b)(1)) to prevent undue annoyance, embarrassment, oppression, burden or expense. (People v. Superior Court (Kaufman), supra, 12 Cal.3d at p. 429.) The power to grant such immunity is distinct from the power of a court in criminal proceedings to grant transactional immunity upon request by the district attorney as provided in Penal Code sections 1324 and 1324.1. (Id., at pp. 426–428.)
18. In concluding that a statute which requires the giving of information be construed as conferring a general grant of use and derivative use immunity sufficient to overcome an assertion of the Fifth Amendment privilege in all cases arising under such statute, we do not act entirely without precedent. In Byers v. Justice Court (1969) 71 Cal.2d 1039, our Supreme Court concluded that a such an immunity must be judicially imposed upon Vehicle Code section 20002, subdivision (a), although no express language in the statute provided for such immunity. (71 Cal.2d at p. 1057.) That statute required a driver involved in an accident to furnish his identity and other information.The Supreme Court's judgment in Byers was vacated by the United States Supreme Court in California v. Byers (1971) 402 U.S. 424 [29 L.Ed.2d 9, 91 S.Ct. 1535] on the ground that requiring a driver to provide his name and address did not invade the Fifth Amendment privilege in the first instance. (402 U.S. at pp. 433–434.) However, the reasoning of Byers is applicable to our construction of section 2033, subdivision (n). Because the restrictions on the use and derivative use of information provided under section 20002 did not threaten to frustrate the apparent legislative purpose underlying section 20002, and also did not threaten to unduly hamper the criminal prosecution of drivers involved in accidents, Byers held that where compliance with section 20002 would otherwise be excused by assertion of the Fifth Amendment privilege, compliance was nevertheless mandatory, and prosecuting authorities were precluded from using information disclosed under the statute or its fruits in any criminal prosecution. (Id., at pp. 1056–1057.) If a general grant of immunity can be read into a statute which included no express language granting immunity, in order to reconcile the statute's purpose with constitutional requirements, we see no objection to finding a similar grant of immunity where the statutory language appears to provide for it expressly.
19. See footnote 11, ante.
20. In United States v. Catalano, supra, 491 F.2d 267, in which the Court of Appeals concluded the prosecution had met its burden under Kastigar of proving an independent source of its evidence against a person who gave prior immunized testimony (491 F.2d at p. 272), a substantial basis for the court's conclusion was that, in the course of the prior immunized testimony, “the large bulk of the questions were of a leading nature, from which it may be concluded that the prosecutor knew what the answers would be.” (Ibid.) Similarly, requests for admission are essentially “leading questions,” which establish without any possibility of dispute or doubt that any “link in the chain of evidence” which might be gleaned from the responses was provided by the requests and not by any matter which the responding party was compelled to provide.
21. California has codified the attorney-client privilege. Evidence Code section 954 provides, in pertinent part:“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:“(a) The holder of the privilege;“(b) A person who is authorized to claim the privilege by the holder of the privilege; or“(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure․”Evidence Code section 912 provides, in pertinent part:“(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergyman), or 1035.8 (sexual assault victim-counselor privilege) is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.“(b) ................... .․“(c) ................... .․“(d) ................... .․(Emphasis added.)
22. In making this order, the trial judge found substantial evidence of oppressive conduct by Polanski and a strong likelihood that a jury would find despicable conduct on the part of Polanski so as to support an award of punitive damages.
1. I concur in the result only as to the majority's refusal to compel production of written communications with counsel and as to the majority's granting the request for immediate discovery of financial assets. I specifically do not concur in the extensive dicta in the majority opinion.
2. This applies only after the privilege against self-incrimination has been asserted and the trial court has sustained the privilege.
CROSKEY, Associate Justice.
KLEIN, P.J., concurs.