ABA ANTITRUST Magazine: When Silence Is Not Golden - Real World Implications of Non-Parties “Taking the Fifth” in Civil Proceedings

April 22, 2021

In this bylined article for the Spring 2021 issue of the American Bar Association’s ANTITRUST Magazine, O’Melveny partners Michael Tubach and Anna Pletcher and former associate Tricia Parikh discuss the implications of the adverse inference doctrine, under which jurors may be allowed to infer that a witness is concealing negative information when a party in a civil action invokes the Fifth.

“Given the frequency with which the adverse inference doctrine arises in antitrust cases and the potentially significant impact it could have at summary judgment or trial, antitrust practitioners should be familiar with this important evidentiary principle and understand its practical implications,” the authors write. “How did the adverse inference doctrine come to be applied in the context of non-parties invoking the privilege against self-incrimination? When should a court allow it? How should jury instructions be drafted to promote fairness and the truth? And what practical steps should antitrust practitioners consider when non-parties invoke the Fifth and an adverse inference is sought?”

The authors explore these and other considerations in the full article, available here as well as via www.americanbar.org.