Date Issued: April 9, 1992

Case No.: 92-TSC-2

In the Matter of

Robert Scott
    Complainant

    v.

Alyeska Pipeline Service Company
    Respondent

    Complainant, alleging that Wayne Black, a former employee of Wackenhut Corporation, has been effectively served with a subpoena and has refused to testify at a deposition scheduled for March 20, 1992, and further contending that Mr. Black has refused to answer any questions on the basis of his privilege against self-incrimination, has requested that a hearing be setup on the question of Mr. Black's non-appearance and alleged preemptive refusal to answer any questions. Complainant also requests that he be permitted to draw adverse inferences based on Mr. Black's refusal to testify and offer Mr. Black's records into evidence without authentification.

    Complainant's motion and requested orders are all premised on one contention: that Mr. Black has been effectively served with a subpoena. However, the affidavit of James Martin, the process server who attempted to serve the subpoena, establishes that service of the subpoena on Mr. Black was not achieved. Further, nothing in this affidavit indicates, as alleged by the complainant, that Mr. Black deliberately evaded service. Rather, the affidavit shows that Mr. Black was cooperative. He was not served because he was out of town on the two instances where personal service was attempted, on March 13 and 17, 1992. Further, although Mr. Black indicated that he would be returning

to Miami on March 23rd, no attempt was made to reschedule the deposition and serve him after his return to Miami.

    Although actual service was not achieved,¹ complainant, citing Rule 4 of the Federal Rules of Civil Procedure, argues that the subpoena was "effectively served." But it is Rule 45 (c) of the Federal Rule of Civil Procedure which governs service of subpoenas, and Rule 45(c) requires personal service. Moreover, even assuming Rule 4 applies, § (d)(1) of that Rule requires service either "personally or by leaving copies ... at the individual's dwelling house or usual place of abode...." Complainant never attempted to serve Mr. Black at his home.

    Therefore, there is no basis to find that Mr. Black was served with the subpoena requiring him to appear at a deposition. Since he was not served, there is no basis for any of the relief sought by the complainant due to Mr. Black's failure to be deposed.

    As a final point, a witness cannot assert a Fifth Amendment objection to his testimony in advance, or in blanket form. Rather, the refusal to testify based on the privilege against self-incrimination must be asserted during the witness's testimony, on a question by question basis, and with reasonable support that the fear of prosecution is justified. See, e.g., Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951); National Life Insurance Co. v. Hartford Accident and Indemnity Co., 615 F.2d 595 (3rd Cir. 1980). Accordingly, complainant cannot be excused his failure to serve Mr. Black because he suspects that Mr. Black may refuse to answer some questions due to fear of self-incrimination. Until the witness is called to testify, and is asked specific questions, there is no basis upon which the privilege against self-incrimination can be raised, and no basis for a party to seek relief due to the witness's refusal to answer.

    For the foregoing reasons, the motion to compel the appearance of Wayne Black is denied.²

       JEFFREY TURECK
       Administrative Law Judge

Washington, D.C.

¹ It should be noted that 29 C.F.R. § 18.24 (a) permits the service of subpoenas by certified mail. Apparently, complainant did not exercise this option

² On April 9, 1992, subsequent to drafting this Order, I received an opposition to complainant's motion to compel filed by counsel for Mr. Black. Since this order is consistent with the position taken by Mr. Black's counsel, and the affidavits from counsel and Mr. Black are consistent with the statements in the process server's affidavit, I found no reason to revise the Order already draft.