## Facts

- An unmarried woman sued a married man in federal court (diversity) for breach of an alleged agreement under which she would provide companionship and other services in exchange for payment.
- The defendant answered that the agreement was against public policy; the court treated this as raising illegality based on an alleged illicit sexual relationship.
- In a deposition, plaintiff’s counsel asked questions whose affirmative answers could indicate adultery.
- The defendant refused to answer those questions, invoking the Fifth Amendment privilege against self-incrimination.
- The plaintiff sought an order compelling the defendant to answer, arguing that any adultery-related conduct was outside the criminal statute of limitations.
- The defendant maintained that answering could still create self-incrimination risks, including by waiving the privilege as to later, chargeable incidents.

## Issues

1. Whether a civil defendant may assert an affirmative defense of illegality premised on his own alleged criminal conduct while invoking the Fifth Amendment to refuse discovery on that same conduct.
2. What remedy is appropriate when a party attempts to rely on an incriminating theory but blocks examination into the underlying facts.

## Decision

- The court did not immediately compel answers to the deposition questions.
- The court required the defendant to elect between (a) preserving the Fifth Amendment privilege as to the alleged criminal conduct and (b) pursuing an illegality defense based on that conduct.
- The court ordered that, unless within 20 days the defendant notified the plaintiff that he would answer the questions, the motion to compel would be denied and the issue of criminality would be foreclosed as a defense at trial.

## Legal Principles

- Illegality is an affirmative defense; a defendant who injects a criminality-based illegality theory into a civil case cannot simultaneously prevent discovery and cross-examination into that theory by asserting the Fifth Amendment.
- A litigant may not use the privilege against self-incrimination to gain an unfair advantage by suggesting criminal conduct as a basis for relief or defense while refusing to provide testimony on the same subject.
- A proper remedy in civil litigation is to condition the ability to pursue the incriminating claim or defense on the party’s willingness to answer discovery; otherwise, the court may preclude the issue.

## Conclusion

The court protected the defendant’s Fifth Amendment privilege but prevented its tactical use by conditioning any criminality-based illegality defense on the defendant’s agreement to answer deposition questions about the alleged conduct; failing that, the defense would be barred.


Rubenstein v. Kleven, 150 F. Supp. 47 (D. Mass. 1957)