Today, former Judge Bobby DeLaughter has asked Judge Glen Davidson to quash a subpoena from Dickie Scruggs. DeLaughter, who does not have immunity, has said he will take the 5th on everything asked.
Oh the times how do they change. Remember that
1. Dickie Scruggs was insistent to make a State Farm employee testify even though they fully disclosed they would invoke their 5th amendment protections.
2. Then Scruggs fought like hell against being forced to appear in front of State Farm after telling them he would assert the 5th to everything.
All parties appear to anticipate that, if his deposition is permitted to go forward, Scruggs will exercise his Fifth Amendment privilege against self-incrimination. State Farm is not seeking to obtain an order compelling Scruggs to provide actual testimony in his deposition; to the contrary, it appears content to allow Scruggs to assert his Fifth Amendment privilege. It seems clear that State Farm will then seek to utilize Fifth Circuit authority which permits, in certain circumstances, a negative inference to be drawn against a civil litigant based upon the fact that a non-party has exercised his Fifth Amendment privilege.