Almost a century ago, Justice Louis Brandeis recognized that “[s]ilence is often evidence of the most persuasive character.” Bilokumsky v. Tod, 263 U.S. 149, 153 (1923). In civil litigation that overlaps with potential criminal conduct, that observation carries great weight: An individual’s decision to remain silent by invoking her Fifth Amendment rights can be used as evidence against her. Cases against corporate defendants present an added wrinkle, because the privilege is typically asserted by a co-defendant or non-party, such as a current or former employee. The plaintiff may wish to use that invocation of Fifth Amendment rights to prove liability by drawing adverse inferences against the company, while the corporate defendant will naturally want to avoid any negative consequences of its agent’s attempt to avoid criminal jeopardy.

Precisely this issue is being litigated right now in the Waymo v. Uber case, pending in the Northern District of California. In that case, the theft of trade secrets claim asserted by Google affiliate Waymo rests in part on 14,000 electronic files that Anthony Levandowski—a former Google employee subsequently hired by Uber—allegedly improperly downloaded before leaving Google. Levandowski took the Fifth at his deposition, and was then fired by Uber for his failure to testify. The parties actively dispute whether and to what extent those assertions should give rise to adverse inferences against Uber at the upcoming October 2017 trial.

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