Team Kimberlin Post of the Day

A deposition of Tetyana Kimberlin had been scheduled for next week, but she has invoked her Fifth Amendment privilege—as is her right.

This particular filing deserves some commentary. IANAL, but I’ve been in communication with some, and I believe I am correctly reporting their analysis.

First, one doesn’t move to quash a deposition. A party seeking to limit or avoid a deposition files for a protective order. The Kimberlins did file for one, and it has not been granted. They are obliged to cooperate fully with discovery until a protective order is issued. A pending order that may never be granted does not stay discovery.

Second, Brett Kimberlin filed the motion along with Tetyana, but he has no standing in the matter.

Third, marital privilege is more limited that the Kimberlins appear to believe. It doesn’t allow one spouse to refuse to testify against everything about the other.

Fourth, pleading the Fifth prevents a deponent from having to answer questions which may tend to incriminate him or her, but dropping the nickel has other significant ramifications in a civil matter.

Fifth, the Kimberlins whining that it is unfair for them to be held to the Rules is getting to be a boringly common refrain. It is not unfair for Aaron Walker to fail to attend a deposition when he was not properly served with notice, and it is would not be unfair to require Tetyana Kimberlin to be deposed when she was given proper notice.

Finally, Tetyana Kimberlin is within her rights to refuse to be deposed because her testimony might incriminate her. The facts alleged against her establish the elements of several crimes as well as the civil tort of malicious prosecution.

46 thoughts on “Team Kimberlin Post of the Day

    • Has she even been personally informed of anything since the last time they were both in front of a judge? I feel like “is this your signature” would already take you 500 miles.

  1. It’s inconsistent to claim that they did not commit a tort but can’t testify because it may incriminate them. And in a civil matter, …. well, I’ll let them learn that the hard way.

  2. Since TK does not know what questions might be posed for her to answer, can she use the 5th Amendment as a plausible reason to not attend the deposition?

    • The short answer is yes, she can.

      The wisdom of such a strategy extending the Kimberlin’s chances of being held to account is an ENTIRELY different question.

      • As a former prosecutor, I can say you are wrong. She may assert her privilege but she has to attend the depo and do it. Brett is just crazed to push paper.

        • North River Insurance Co. v. Stefanou, 831 F.2d 484 (4th Cir. 1987). You have to show up and assert the privilege for each question. Then the court gets to decide if your use of privilege was proper.

          • Paul, I think you may be right, in that TK and BK can plead the 5th and refuse to show up for the deposition.
            The question that needs to be answered is: Would it be wise for them to do so? Even taking into consideration that past performance does not guarantee future performance, I know where I would bet the rent.

        • I thought it was even worse than that even. Mark Furman experienced what it means to assert the fifth amendment right to not be a witness about oneself. It is quite binary, IYKWIMAITTYD.

        • Just because there is an assertion doesn’t mean it will be honored. The opposing party should be able to demand a hearing as to why the deponent believes the testimony would be inculpatory. If the Judge decides that the reasons for assertING the right are bogus, the judge can order the deponent to testify, anyway.

        • It’s a rare sighting indeed, to catch a glimpse of a half-empty bottle in range of shakey’s sticky stink-squeezers. The required speed and nimbleness is difficult to achieve in the required hazmat gear.

          • If he really doesn’t drink, as he claims, a new photo of the bottle next to today’s paper (or the front page of on his tablet) should suffice.

            Or it could be the remnants of the next bottle.

            Still, better evidence than taking Shakey’s word for it.

        • The Deranged Cyberstalker Bill Schmalfeldt purchased that Keurig coffeemaker prior to the passing of his “beloved” — mere days before, if memory serves.

          Blob *needed* a smaller coffee pot since GS’s days of drinking coffee were over, and apparently the concept of simply adding less water and coffee to the pot they owned escaped him.

          Oh. And, apparently there was nothing else of any importance to be thinking about nor doing.

        • Nope.

          Nothing but the best for the worthless, lazy, taxpayer-money-sucking leech – the Deranged Cyberstalker Bill Schmalfeldt.

  3. She can plead the Fifth to individual questions, not the Notice of Deposiition.

    “What is your name?”

    “What is you current mailing address?”

  4. I don’t remember John Hoge ever believing that he feels “betrayed” by Tetyana Kimberlin. Nor, do I believe that he has ever said that in a filing. As far as I know, that is a complete fabrication of a quote by Brett Kimberlin.

  5. Wow, The Sawed-Off Pedo Bomber managed to make it to #7 before he committed a blatant lie. Is that some kind of a record?

    Hey, more insults in #10! But only “depraved” and “perverse.” He’s mellowing in his old age.

    And, finally, another defective signature block from the defective, making this also not properly served. Let me show you my shocked face.

  6. If you type in “pleading the fifth” into Google, the second option to come up is “in a civil case”.

    There are some very interesting articles there, including one by Eugene Volokh.

    But of course none of what those articles say could possible by applied to the Special Snowflakes of TK./sarc (of course!)

    • I use Bing (Points mostly.)
      humorously if you punch in “Pleading the fifth in a civil case” you get someone who’s writing about it in the context of one of Ken “Popehat’s” discussions of Prenda.

    • Now, the question for a lawyer is, when an opposing party asserts their right against self-incrimination, what do you do? You can move on to another subject, but that’s not the right way to do it. When a party asserts the Fifth, you make them dig as deep and as wide a hole as you can, asking as many specific questions as possible to prompt the assertion of the privilege. That way, you can both (a) examine the contours of the asserted privilege, to see if it is being asserted improperly and (b) develop a thorough record on every issue upon which you are seeking an adverse inference. The more “I plead the Fifth” answers you get, the better.

      Pleading The Fifth Amendment And Adverse Inferences In Civil Litigation

      Better than I can explain it.

      • As a quibble, Tetyana Kimberlin is not asserting her specific Fifth Amendment right against self-incrimination. She has asserted her general right under the Fifth Amendment not to be a witness about herself.

        Ken White, for instance, gives as standard advice that one always assert one’s Fifth Amendment right to not be a witness about oneself when ever asked questions by the police.

  7. To the surprise of no one, I imagine Tetyana’s input into this filing was limited to “Here, sign this.”

Leave a Reply