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Fifth Division
Filed: 11/03/00

No. 1-98-4201

Defendant, John Fisk, brought this interlocutory appeal, pursuant to SupremeCourt Rule 304(b)(5), challenging a civil contempt order entered by the trial court. Thetrial court held defendant in contempt for his refusal to comply with a prior ordercompelling his deposition testimony in a personal injury action filed by plaintiffs. Theonly issue presented is whether the defendant can avoid testifying at the deposition byasserting his constitutional right against self-incrimination based upon certain chargesfiled against him in Venezuela.

Plaintiffs are or represent Venezuelan nationals or residents who filed theinstant action seeking recovery for personal injuries and wrongful deaths causedby a natural gas pipeline explosion which occurred during the installation of afiber optic telephone cable in Venezuela. Defendant is an American citizen andresident who is alleged to have served as the project manager for the Venezuelancorporation which was responsible for the cable installation project inVenezuela. On September 28, 1993, a rotoexcavator operated by Abengoa Venezuela,S.A., a subcontractor for a portion of the project, apparently came into contactwith a subterranean natural gas pipeline located beside a highway near Tijeras,Venezuela. The resulting explosion allegedly caused the injuries and deaths forwhich plaintiffs now seek recovery.

Shortly after the accident, a warrant was issued for defendant's arrest inVenezuela, charging him with "incendio in forma culposa" inviolation of Article 357 of the Venezuelan Penal Code. The Republic of Venezuelaallows a private individual to initiate criminal proceedings. Defendant, who ispresently in the United States, has not answered the charges against him inVenezuela.

The instant case is one of twelve actions filed against defendant, AT & TCorp., its subsidiaries and employees, and various other corporations throughoutthe United States. Three of the related actions have been dismissed based upon forum nonconveniens. Three, including the instant action remain pending. The balancehave been dismissed voluntarily or otherwise. Defendant, who also seeksdismissal for forum nonconveniens, has asserted that this action was improperly brought againsthim, not for the purpose of establishing his liability, but rather to fix venuein this jurisdiction so that corporate defendants may be joined.

Plaintiffs served interrogatories upon defendant on October 10, 1996.Defendant answered those interrogatories on November 12, 1996, in many instancesasserting his privilege against self-incrimination based upon a fear of criminalprosecution in Venezuela. During his deposition, defendant again asserted hisprivilege against self-incrimination. The questions which defendant declined toanswer included those seeking information concerning his job title; the natureof his duties; his involvement in planning, engineering, and obtaining permits;and other inquiries which might tend to provide a link in the chain of evidencethat could lead to his conviction of the criminal charges.

Plaintiffs filed a motion to compel defendant to answer discovery, assertingthat he did not possess a reasonable fear of foreign prosecution. In oppositionto plaintiffs' motion to compel, defendant contended that he possessed a rightagainst self-incrimination and that his fear of foreign prosecution wasreasonable because (1) there were criminal charges pending against him inVenezuela, (2) the criminal charges arose from the same subject matter as theplaintiffs' civil action, (3) the testimony sought to be adduced would beardirectly upon the criminal charges or would provide a link in the chain ofevidence which could lead to his conviction, (4) defendant's testimony wouldfurther the Venezuelan prosecutions, and there existed a strong likelihood thathis compelled testimony would be disclosed to Venezuelan authorities, and (5)the criminal charges pending against him in Venezuela were extraditable offensespursuant to the Extradition Treaty Between the United States and Venezuela.⁽¹⁾

After a succession of hearings before Judge Hogan and Judge Duncan-Brice, theplaintiffs' motion to compel was denied. Judge Hogan specifically found thatdefendant possessed a reasonable apprehension of foreign prosecution andextradition upon which his privilege against self-incrimination could be based.Judge Duncan-Brice later found that the specific deposition questions posed todefendant fell within the protection of his right against self-incrimination.

Plaintiffs subsequently sought reconsideration of the denial of their motionto compel. Plaintiffs' request for reconsideration was premised upon the UnitedStates Supreme Court's ruling in United States v. Balsys, 524 U.S. 666,141 L. Ed. 2d 575, 118 S. Ct. 2218 (1998), which held that, absent certainparticular exceptions, a witness could not assert his federal fifth amendmentprivilege against self-incrimination based upon a fear of prosecution by aforeign country. In opposition to the plaintiffs' motion for reconsideration,defendant contended that his assertion of the privilege could be sustained underArticle I, section 10 of the Illinois Constitution as well as under the fifthamendment. Judge Duncan-Brice ruled that the circuit court was bound by theholding in Balsys and granted the plaintiffs' motion forreconsideration, finding that defendant could not base his privilege againstself-incrimination upon a fear of prosecution in Venezuela. When defendantrespectfully refused to comply with the order compelling his testimony, JudgeDuncan-Brice held him in contempt and assessed a monetary sanction of $10.Defendant thereafter brought the instant appeal.

As noted above, the only issue before this court is whether the defendant isprecluded from asserting his constitutional right against self-incriminationbased upon the charges filed against him in Venezuela. This issue is one offirst impression and presents a question of law, which we review de novo. Branson v. Department ofRevenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995).

The self-incrimination clause contained in the fifth amendment provides that"[n]o person *** shall be compelled in any criminal case to be a witnessagainst himself." U.S. Const., amend. V. Our state constitution includes asimilar privilege in article I, section 10, which states that "[n]o personshall be compelled in a criminal case to give evidence against himself nor betwice put in jeopardy for the same offense." Ill. Const. 1970, art. I,