[AndyK]

The key issue in MANESS v. MEYERS is higlighted below (from the Supreme Court's Opinion

This Court has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.

Thus the issue is whether in a civil proceeding a lawyer may be held in contempt for counselling a witness in good faith to refuse to produce court-ordered materials on the ground that the materials may tend to incriminate the witness in another proceeding.

On this record, with no state statute or rule guaranteeing a privilege or assuring that at a later criminal prosecution the compelled magazines would be inadmissible, it appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith.

It is important to note that the 5th amendment was not being asserted with respect to the civil case, but in fear that the magazines could be used as evidence in a potential, future criminal case.

Upholding that use of the 5th is not new law. Any time a person believes that testimony or documents could be evidence in a future criminal case, he can assert the 5th amendment.

HOWEVER, the impact of doing so in a civil case is different from doing so in a criminal case.

In the latter, in the eyes of the Judge and jury, the protected information does not exist, and has no impact on the case either positively or negatively. The prosecution is not permitted to state implications as to a defendant's guilt because the defendant invoked the 5th.

In a civil case, the refusal by a party to produce information except in the narrow framework described in MANESS, based on the 5th, CAN be used by the opposition to create an assumption that the material would damage the invoker's case.

These subtleties are, significant. As the court also stated in the case at hand

The assertion of a testimonial privilege, as of many other rights, often depends upon legal advice from someone who is trained and skilled in the subject matter, and who may offer a more objective opinion. A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege.