INSIGHTS THE CORPORATE & SECURITIES LAW ADVISOR ASPEN PUBLISHERS Volume 24 Number 12. December 2010 SECURITIES LITIGATION "The Fifth Amendment Can & Will Be Used Against You In a (Federal) Court of Law" Although it mar sound completely counterintui- tive and unfair, an individual's exercise of his con- stitutional right against self-incrimination could jeopardize a company's right to defend itself in civil litigation. In fact, even when limner employees and non-parties "take the Fifth," an adverse inference of wrongdoing could arise against the company. By David A. Battaglia and Vanessa C. Adriance Attorneys and lay citizens alike feel that they have at least a passing familiarity with the Fifth Amendment to the United States constitution and its protection against self-incrimination— they know that it will protect them and their clients from being forced to give testimony that may incriminate them. Corporate in-house coun- sel may believe that the Fifth Amendment does not have much of a bearing on their day-to-day civil practice, and think of it as mostly a creature of the criminal courts—a place where they rarely find themselves. While the Fifth Amendment David A. Battaglia is a partner, and Vanessa C. Adriance is an associate, at Gibson, Dunn & Crutcher LLP in Los Angeles, CA. certainly appears most frequently in the popular imagination in criminal courtroom dramas and high-profile prosecutions, it also can have a cru- cial and even a case-determinative effect in just the type of civil litigation that in-house counsel must deal with day in and day out. Some fre- quently overlooked quirks of Fifth Amendment jurisprudence in the civil arena may become traps for civil litigators and in-house counsel if they are ignored or not fully appreciated in evaluating and defending a dispute. This is true whether the dis- pute involves issues relating to securities, antitrust, consumer protection, or other business related laws. In essence