[Links to Andrea's Motion and the Plaintiff’s Response are at the end of this post.]
On January 4, 2013, Andrea Sneiderman moved the Court in the civil forfeiture action to postpone all depositions, including hers, until after the criminal case against her is resolved. Andrea Sneiderman's attorney's explain "the simple reason is that Mrs. Sneiderman should not be placed in a position where she is forced to defend against the allegations in the State's forfeiture case and, in so doing, potentially make statements in deposition testimony that the prosecutors will attempt to use against her in the Criminal Case."
The Defense Attorneys further explain, "to protect herself, she may choose to assert her right against self-incrimination under the Fifth Amendment and/or under O.C.G.A § 24-9-27 and refuse to answer certain questions.” Andrea’s attorney’s conclude the result is Andrea Sneiderman is “between a rock and a hard place.” If she takes the 5th, there may be a negative inference imposed in the civil matters; if she answers questions, the prosecution will use her statements against her. Consequently, Andrea’s attorneys contend, it is highly likely that Andrea would take the 5th to numerous questions which would require the Court to later evaluate each and every assertion of the 5th to determine whether it was properly asserted or whether Andrea must answer the question.
In response, attorneys for the Estate of Russell Sneiderman counter that, “[Andrea] repeatedly claims that she has done nothing to warrant the legal mess that she finds herself ensnared in . . . and that if she only could have the opportunity to have her story told, she would be exonerated.” Counsel for the Estate continues, “when finally provided with the opportunity she asked for to answer questions about her role in the slaying of her late husband, the Defendant instead intends to cowardly seek shelter in the Fifth Amendment. “[Andrea’s Motion] represents yet another desperate attempt by Defendant . . . to demand to be treated differently than any other person charged with crimes in the State of Georgia.” Plaintiff’s counsel adds that delaying the depositions prejudices the minor children who are entitled to the insurance money paid to Andrea from policies on Rusty’s life.
The lawyers on both sides delve a little deeper into the law supporting their arguments, slicing and dicing the legal technicalities. But, this summary should give you a good overall picture from which to make your own decision about whether Andrea should be compelled to testify at a deposition in the civil matter or whether she may wait until the criminal trial ends.
To be sure, both sides make valid points. Andrea will undoubtedly be put in a classic Catch 22 if she has to sit for a deposition. But, by itself, that is not typically sufficient reason to postpone depositions. Witnesses always risk saying something in a deposition that hurts their case. It should be no secret that Attorneys take depositions, in part, to get information to use against the witness. One reason witnesses may assert the 5th amendment is to avoid answering questions that tend to implicate them in a crime. Likewise, if your answers do not tend to incriminate you in a crime, you have no need to assert the 5th Amendment. On the other hand, even the best, most innocent, answers can be turned around and used against you by a good attorney. That is why you hire your own attorneys to defend you.
So, perhaps the risk of incriminating herself is not the strongest ground upon which Andrea could seek to postpone her deposition. But, that is the argument her attorneys make.
Ultimately, the decision is for the Judge to make. And, Judges have extremely broad discretion to control discovery and depositions. I would not be surprised if the Judge agrees with Andrea. Only in cases where a Judge abuses her discretion will she be reversed. It would be a big win for Andrea if she can postpone depositions until after the criminal trial.
I do not envy the Judge making this decision. It is not as easy as you may think. The briefs are relatively short and provide useful, insight into this fierce battle. I encourage you to read them, consider both sides, and then pretend you are the Judge. Tell me, how would you rule and why? As promised, here are the briefs:
Please follow me on twitter for instant updates and additional info on this case, including the pending civil matters, links to good articles, and live streams of hearings and the trial. I welcome your comments and criticism.
For inquiries or more information: