The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KYLE AUCOIN-MELOHN CIVIL ACTION
VERSUS NUMBER: 24-1676
ST. CHARLES PARISH SCHOOL BOARD SECTION: “D” (5)
ORDER AND REASONS
Before the Court for expedited review is the Motion to Compel Deposition of Plaintiff
or Alternative Motion for Adverse Inference (rec. doc. 46) filed by Defendant St. Charles
Parish School Board (“Duenfetinmdealnyt” or “SCPSB”). Plaintiff opposes the motion (rec. doc. 49),
and Defendant filed an reply. (Rec. doc. 51). Having reviewed the pleadings and
the case law, the Court rules as follows.
Destrehan High School (“DHS”) employed Plaintiff as a former Talented Theater
teacher from approximately August 2017 until his alleged constructive discharge on
December 9, 2022. (Rec. doc. 1 at 2). In short, Plaintiff alleges that DefenIdda.nt discriminated,
harassed, and retaliated against him because of his sexual orientation. ( ).
At issue in these pleadings is Plaintiff’s invocation of his Fifth Amendment right to be
free from self-incrimination during his deposition. Defendant contends that Plaintiff
asserted a “blanket” assertion of the Fifth Amendment privilege at his deposition with regard
to two criminal proceedings brought against Plaintiff in St. Charles Parish and Jefferson
Parish. Defendant argues that because Plaintiff mentions the two proceedings in his
Complaint, he has placed them at issue in this litigation, and accordingly, discovery on the
proceedings is fair game. Defendant also maintains that Plaintiff waived his Fifth
Amendment privilege by responding to Defendant’s written discovery and producing
Amendment protects Plaintiff from testifying about the two criminal proceedings, Defendant
seeks an adverse inference against him for refusing to testify to probative evidence.
Plaintiff maintains that he never asserted a “blanket” Fifth Amendment privilege.
Pointing to the transcripts of his deposition, he notes that counsel for Defendant asked his
counsel whether she would assert the privilege as to every question asked concerning the
documents from the two criminal investigations. He then notes that his counsel replied that
“[w]e will take that document-by-document.” (Rec. doc. 49-3 at 5). that is not a “blanket”
assertion of the privilege, he maintains. Plaintiff also notes that his counsel allowed Defense
counsel to ask him questions about the documents produced in connection with the twIdo.
criminal proceedings, objecting at times only that the documents spoke for themselves. (
at 6-7). Again pointing to the transcript of his deposition, Plaintiff notes that Defendant
asked him numerous questions about the documents related to the two criminal
proceedings, all of which he answered. Plaintiff contends that both criminal proceedings
remain open, as he remains on court-supervised probation in the St. Tammany Parish
proceeding, and the Jefferson Parish District Attorney has not determined how to proceed in
that Parish’s criminal investigation. Thus, Plaintiff maintains that he entitled to assert the
Fifth Amendment privilege should any question warrant it because his response may
incriminate him in either proceeding.
The Fifth Amendment states, in relevant part, “No person . . . shall be compelled in any
criminal case to be a witness against himself. . . .” U.S. Const. Amend. V. The Fifth Amendment
privilege against compulsory self-incrimination “can be asserted in any pKroacsetiegdairn gv,. cUivniilt eodr
Scrtaimteisn,al, administrative or judiciasle, ei nUvneistteidga Stotartye so rv . aRdajumdoiscatory. . .”
406 U.S. 441, 444 (1972); , 537 F.3d 439, 454 (5th Cir.
2008). The privilege against self-incrimination “protects against any disclosures which the
witness reasonably believes could Kbae sutisgeadr in a criminal proseRcaumtioosn or could lead to other
evidence that might be so used.” , 406 U.S. at 445; , 537 F.3d at 454. The
Mpruivrpilhegy ev . pWroatteecrftrso na t pCaormtym 'ang aoifn Nset ws eYlof-rikn cHraimrbionration under both federal and state law.
, 378 U.S. 52, 77-78 (1964). The privilege
covers not only responses that would support the party's criminal conviction but also
M“eamllborya vc.e Hs othgaonse which would furnish a link iHn otfhfme cahna vin. U onfi etevdid Setnactees needed to prosecute.”
, 378 U.S. 1, 11 (1964) (citing , 341 U.S. 479, 486-87
(1951)).
The Fifth Circuit has also made clear that “a party may invoke the privilege against
self-incrimination in a civil proceeding” and “may invoke the Fifth Amendment privilege
during the discovery process to avoid answering questions at a depositDioanv,i sr–eLsypnocnhd, iInngc . tvo.
Minoterrernoogatories or requests for admissions, or to produce documents.”
, 667 F.3d 539, 547 (5th Cir. 2012) (footnotes omitted). The Fifth Circuit has further
noted that “[t]he Supreme Court has cautioned that the Constitution limits the iImd.position of
any sanction which makes assertion of the Fifth Amendment privilege costly.” (footnote
and internal quotation marks omitted). “Given this consideration – and because all parties
should have a reasonable opportunity to litigate a civil case fully – courts should seek out
ways to permit as much testimonIdy. as possible to be presented in the civil litigation, despite
the assertion of the privilege.” (footnote and internal quotation marks omitted). “In
addition, [the Fifth Circuit] has held that, when there are competing interests posed by an
invocation of the Fifth Amendment, a court should measure the relative weights of the
pIda.rties' competing interests with a view toward accommodating those interests, if possible.”
(footnote and internal quotation marks omitted).
But “while a person may refuse to testify during civil proceedings on the ground that
his testimony mighHt iinnocjroisma ivn.a Bteu thleimr . . . his refusal to testify may be used against him in a
civil proceeding.” , 547 F.3d 285, 291 (5th Cir. 2008) (internal quotation
marks omitted). “Thus, although a jury in a criminal case is not permitted to draw adverse
inferences based on a defendant's invocation of his Fifth Amendment rights, it is well-settled
that the Fifth Amendment does not forbid adverse inferences against parties to civil actioInds.
when they refuse to testify in response to probative evidence offered against them.”
(internal quotation marks omitted).
Relevant here, the Fifth Circuit has also held that “[a] blanket refusal to answer
questions at deposition on the ground that they are privileged is an improper invocation of
the fifth amendSm.Ee.Cn.t v, .i rFriersstp Feicnti. vGer po.f owf hTeetxh.,e Irn csu. ch a claim is made by a plaintiff, defendant,
or a witness.” , 659 F.2d 660, 668 (5th Cir. 1981) (internal
quotation marks omitted). The Fifth Circuit “has held that such a blanket assertion of the
privilege is insufficient to relieve a party of the duty to respond to questions put to him,
stating that even if the danger of self-incrimination is great, (the party's) remedy is not to
voice a blanket refusal to produce his records or testify. Instead, he must present himself
with his records for quesItdio. ning, and as to each question and each record elect to raise or
not to raise the defense.” (internal quotation marks omitted). “Requiring a party to object
with specificity to the information sought from him permits the district court to rule on the
validity of his claim of privilege. A party is not entitled to decide for himself whether he is
protected by the fifth amendment privilege. Rather, this question is for the court to decide
after conducting a particularized inquiry, deciding, in connection with each specific area thIadt.
the questioning party seeks to explorseee, walhseot hLeorn goorr niao tv .t hCen tpyr. iovfi lDegaell aiss , wTeexll.-founded.”
(internal quotation marks omitted); , No. 3:14-CV-
3111-L, 2015 WL 3822233, at *4 (N.D. Tex. June 19, 2015) (same).
While the Court recognizes that Plaintiff’s counsel asserted a “blanket” invocation of
the Fifth Amendment privilege at the outset of the deposition, that is not how the deposition
actually played out. As outlined above, Plaintiff’s counsel agreed to let Plaintiff answer
questions about specific documents produced in the two proceedings. (Rec. doc. 49-3 at 7).
Counsel for Plaintiff did indeed at times invoke the privilege as to specific questions. But,
from the limited portions of the transcript of the deposition attached to the pleadings, the
Court finds that these invocations were proper, as the questions related at times to matters
not reflected by the documents produced by either Plaintiff or Defendant but to the
underlying facts of the Plaintiff’s alleged offenses.
Documents speak for themselves, and both parties have produced documents related
to the two criminal proceedings. Admitting them at trial and allowing the jury to review the
documents necessitates no further information on the part of Plaintiff. For example, there is
an entire colloquy between counsel for Defendant and Plaintiff during which he confirms the
identity and contents of the documents related to the two criminal proceedings and during
which there was no objection based on the Fifth Amendment privilege. (Rec. doc. 49-3 at 35-
50). Even though he did not need to, Plaintiff confirmed the contents of the documents as
they related to his arrest and the criminal investigations. From the limited sections of the
transcripts of the deposition before the Court, it is unclear to the Court what else counsel for
Defendant needed from Plaintiff. So, despite Defendant’s protestations, Plaintiff answered
Defendant’s counsel’s questions that she posed to him regarding the two criminal
proceedings at issue in this lawsuit.
In its original memorandum and its reply, Defendant makes much of the argument
that some of its questions – none of which is represented by the sections of transcripts
produced to the Court – delve into whether Plaintiff Sweea sL eqeu va. lKifaiend. Cfiotry Sh.i sR yp. oCsoi.tion, as is
necessary for a plaintiff to prove in a Title VII lawsuit. , 574 F.3d
253, 259 (5th Cir. 2009). Defendant contends that Plaintiff cannot establish that he is a
qualified individual for a Talented Teacher position because his probation forbids him from
working with individuals under the age of 18. (Rec. docs. 49-2, 51 at 8). Again, the document
entitled “Conditions of Probation” speaks for itself. (Rec. doc. 49-2). And moreover, the
sections of the transcripts submitted to the Court do not reflect what exact question
1
Defendant posed to Plaintiff on this issue and whether he asserted the privilege. When
Defendant questioned Plaintiff about the specific individuals related to the two criminal
proceedings, Plaintiff freely responded, and no objection based on privilege was asserted.
(Rec. doc. 51-1 at 12-13). Without the specific question before it about which Defendant
complains, this Court cannot conduct the paSr.Eti.cCu.larized inquiry to determine whether or not
the assertion of privilege is well-founded. , 659 F.2d at 668.
Neither does the Court find that Plaintiff waived his right to invoke the Fifth
Amendment. An individual may waive his Fifth AmeCnodlmoreandto p rvi. vSilpergien g“provided the waiver
is made volunMtairrialyn,d kan vo. wArinizgolyn aand intelligently.” , 479 U.S. 564, 572
(1987) (citing , 384 U.S. 436, 444 (1966)). There is no indication here –
1
From the sections of the transcript of the deposition before the Court, counsel for Defendant asked Plaintiff
and Defendant does not argue – that Plaintiff voluntarily, knowingly, and intelligently waived
his Fifth Amendment privilege. Defendant essentially asks that the Court find waiver by
default because Plaintiff responded to factual discovery and produced documents from the
two criminal investigations, most of which is already represented on the documents on
which Defendant questioned him at his deposition. The Court cannot find waiver under
these circumstances.
Neither can the Court enter an adverse inference against Plaintiff. That is an
evidentiary question for the District Judge to decide. Accordingly, and for the foregoing
reasonsI,T IS ORDERED
that the Motion to CDoEmNpIeElD Deposition of Plaintiff or Alternative
Motion for Adverse Inference (rec. do7ct.h 46) is . July
New Orleans, Louisiana, this day of , 2025.
MICHAEL B. NORTH
UNIT ED ST ATES M AGIST RATE JUDGE