Heffington v. Moser

Eyler, Deborah S., J. This appeal presents a question of first impression in Maryland: whether, and under what circumstances, a plaintiff in a civil case who also is a defendant in a related criminal prosecution is entitled to a stay of the civil case so as not to penalize her for invoking her Fifth Amendment privilege against self-incrimination. We shall hold that in deciding whether to grant a stay, the court must balance the plaintiff's Fifth Amendment right against self-incrimination and Article 19 right of access to the courts against the defendant's interest in a timely resolution of the claims against him. A stay should be granted to protect the plaintiff's constitutional rights unless it will cause undue prejudice to the civil defendant. In the Circuit Court for Prince George's County, Kristi Heffington ("Kristi") and her husband, Matthew Heffington ("Matthew"), the appellants, brought a tort action against Kristi's former employer, Ronald F. Moser, D.D.S, P.A.

("the Practice"), Ronald F. Moser, D.D.S. ("Dr. Moser"), and Dr. Moser's wife, Anne M. Moser ("Anne"), the appellees ("the civil suit"). 1 The Heffingtons' tort claims all were based on allegedly false statements the Mosers made to the police, to the Practice's insurer, and to others that Kristi had stolen money from the Practice and had engaged in identity fraud while employed there. While the civil suit was pending, Kristi was indicted by a grand jury in the Circuit Court for Prince George's County, Case No. CT170240X, for one count of theft scheme and four counts of identity fraud ("the criminal case"). Originally, the trial in the criminal case was scheduled to commence before the assigned trial date in the civil case.

Later, upon the State's request, the criminal case trial date was postponed. The new trial date for the criminal case was after the trial date in the civil suit. The Heffingtons filed a motion to stay the civil suit pending disposition of the criminal case, arguing that to protect herself in the criminal case, Kristi would be invoking the Fifth Amendment in the civil suit and, therefore, would be unavailable to testify on her own behalf. After a hearing, the court denied the motion to stay.

As we shall explain in detail below, on the first day of trial in the civil suit, the Heffingtons moved for a mistrial, which was denied, and rested without putting on evidence. The circuit court granted judgment in favor of the Mosers and the Practice on all counts. The Heffingtons noted this appeal, asking whether the circuit court abused its discretion by denying their motion to stay the civil suit. For the following reasons, we answer that question in the affirmative.

We shall vacate the judgment of the circuit court and remand for further proceedings. FACTS AND PROCEEDINGS Dr. Moser owns and operates the Practice, which is located in Bowie. At the relevant time, Anne was working there as a dental hygienist. Kristi was hired by the Practice in June 2008.

In 2010 she became the office manager. In that capacity, she was responsible for depositing all cash and checks in the Practice's business account, balancing the daily transactions, and providing Dr. Moser a daily report on revenue. On April 15, 2015, Dr. Moser fired Kristi for stealing money from the Practice. Specifically, Kristi was accused of using the Visa terminal at the Practice to charge and later refund charges on medical credit cards she obtained in her name and in the names of family members, without their knowledge or consent.

The day he fired Kristi, Dr. Moser reported Kristi's thefts to the City of Bowie Police Department and to CNA, the Practice's liability insurer. Five days later, Kristi's cousin, Randall Tracey ("Randall"), reported to the Anne Arundel County Police Department that Kristi had stolen his son Randy's identity and used it to apply for a medical credit card. Randall also reported that in 2013 Kristi had stolen his identity and had used it to apply for a $10,000 medical loan. On March 21, 2016, the Heffingtons filed the civil suit that gives rise to this appeal.

They alleged that in December 2013 Anne had told Kristi, in confidence, that she was having an affair and that in January 2015 Kristi had told Dr. Moser about Anne's affair. They further alleged that Dr. Moser and Anne then "conspired to develop a scheme to disparage [Kristi's] reputation, and to cause injury to her financial, mental, psychological, emotional, and personal well-being, as well as interfere with her own standing as an employee in the dental community." In furtherance of that conspiracy, the Mosers falsely reported to the police that Kristi had stolen over $3,000 from the Practice; filed a false insurance claim asserting that Kristi had stolen over $100,000 from the Practice; filed a civil action in the District Court of Maryland for Anne Arundel County falsely alleging that Kristi had wrongfully refused to repay a $5,000 loan from Dr. Moser; and called Randall, who was Matthew's employer, and made false allegations about Kristi and false allegations that Matthew had participated in Kristi's alleged theft scheme. Kristi stated claims against the Mosers, individually, and the Practice for defamation per se (Counts I & II); malicious use of process (Counts III & IV); and tortious interference with prospective business advantage (Counts V & VI). Matthew stated claims against the Mosers, individually, and the Practice for defamation per se (Counts IX & X) and tortious interference with prospective advantage (Counts VII and VIII).

They both stated a claim against the Mosers and the Practice for civil conspiracy (Count XI). In each count, they sought compensatory and punitive damages in excess of $75,000. On August 16, 2016, the court entered a scheduling order, setting the case in for a four-day trial from June 19-22, 2017. The Mosers noted Kristi's deposition, and, on November 14, 2016, Kristi was deposed for seven hours. 2 She testified that three weeks before she was fired, Randall's ex-wife contacted her via Facebook messenger and asked her about an issue with Randy's credit report.

That is how she learned that she was being accused of stealing Randy's identity. Then, in May 2015, she learned the police were investigating her for identity theft. In answers to questions, she spoke about obtaining medical credit cards in her own name and in the names of various family members; transactions using those credit cards, including refunds of charges she had made from the office Visa terminal; loans Dr. Moser extended to her; and dental insurance claims she had made on behalf of her aunt, who never was a patient of the Practice. She denied any wrongdoing, claiming that the financial transactions were proper and were made with the consent of her family members and with Dr. Moser's knowledge and consent.

Kristi did not invoke her Fifth Amendment privilege against self-incrimination during the deposition. On February 21, 2017, Kristi was indicted on one count of theft scheme over $10,000, but less than $100,000, and four counts of identity fraud-two pertaining to Randall and two pertaining to her brother's girlfriend. The offense dates all are April 15, 2015, and the crimes are based on misconduct by Kristi in her capacity as the office manager for the Practice. The trial in the criminal case was scheduled to commence on June 8, 2017, roughly two weeks before the trial date in the civil suit.

Meanwhile, discovery continued in the civil suit. On May 2, 2017, the parties attended mediation, which was unsuccessful. According to the Heffingtons, at the mediation their attorney advised the Mosers' attorney that he might file a motion to stay the civil suit until the criminal case was resolved. On June 7, 2017, at the State's request, the trial date in the criminal case was postponed until August 23, 2017.

Eight days later, the Heffingtons filed a motion to stay the civil suit pending the resolution of the criminal case. They asserted that "[a]ny testimony provided by ... Kristi ... in the [civil suit] will implicate her Fifth Amendment right against self-incrimination and she will be unable to testify and present her case." They pointed out that because there is a one-year statute of limitations for defamation, see Md. Code (1974, 2013 Repl. Vol.), section 5-105 of the Courts and Judicial Proceedings Article ("CJP"), they had had no choice but to file suit in 2016.

They analogized their circumstances to two cases in which a stay of a civil action, or of particular proceedings in a civil action, was sought by a defendant pending resolution of related criminal charges against him. In re Mid-Atlantic Toyota Antitrust Litigation , 92 F.R.D. 358 (D. Md. 1981) ; and In re Royal Ahold N.V. Securities & ERISA Litigation , 220 F.R.D. 246 (D. Md. 2004). Referencing those cases, the Heffingtons argued that a stay would not burden them or the Mosers and would be convenient for the court because, if Kristi were to be convicted in the criminal case, the civil suit "will probably be dismissed." The Mosers filed an opposition to the motion to stay. They argued that the motion was untimely, having been filed just six days prior to trial, and that, in any event, Kristi had waived her Fifth Amendment privilege against self-incrimination by testifying in deposition and engaging in discovery after she was indicted.

They further argued that the Fifth Amendment is a shield and may not be used by a civil plaintiff as a sword to delay the resolution of her action pending the resolution of a related criminal action. They maintained that Kristi had been free not to file suit, could dismiss her suit, could attempt to prove her case through other evidence, or could take the stand and invoke the privilege. They argued that they had "an important interest in having their case tried expeditiously[,]" and would be prejudiced by a stay that lasted until the conclusion of the criminal case, whenever that might be. On June 15, 2017, the court held a hearing on the motion to stay.

The Heffingtons' lawyer requested a "short stay just to let the criminal trial get out of the way," explaining that if the stay were not granted, Kristi "would invoke her Fifth [Amendment privilege and the Heffingtons would] have no case" to put on. Counsel for the Mosers and the Practice responded that, given the likelihood of additional continuances in the criminal case and an appeal if Kristi were to be convicted, any stay would not be "short" and that they had incurred significant costs preparing for trial and should not be forced to delay defending themselves against the civil suit. At the conclusion of argument, the court denied the motion to stay, opining: I think there is a good likelihood that more likely so than not that there may be a finding that [Kristi] ... may have waived her Fifth Amendment privilege to a certain extent. I haven't looked at the depositions.

I don't know what the testimony is, but there's no dispute that she did give a deposition in this matter regarding the issue - surrounding the issues in this case, and that to a certain extent, from what I hear from counsel, the allegations in this case relate somewhat to the allegations in the criminal case. There is no guarantee when the criminal case is going to go forward when scheduled. I think the criminal case was scheduled previously in this matter and got continued. I have the criminal case here.

It doesn't look like this criminal case is specially assigned to any judge, so there is extensive discovery, extensive documents in this case that may make this case go beyond the usual two- or three-day trial. That may continue it. I just say all this to say you don't have a guarantee that the [criminal] case is going to go forward on the date that it is currently assigned. This is a civil case and it could be continued.

The civil case could be bumped further and further and further along. I do find that the motion is filed somewhat late since you knew that she was indicted months ago. For those reasons and the extensive discovery and preparation on the part of the defendant[s], just to note you were just in pretrial where defense counsel noted that as far as the documents they have in this case for exhibits, it's over a hundred documents in this matter. The civil case was specially assigned to this member of the bench.

For those reasons, because there's no guarantee that the criminal case will go forward when ... it's supposed to happen, I'm going to deny the motion to stay in this case. If [Kristi] does invoke her Fifth Amendment right in the civil case, a jury is able to take that evidence and draw reasonable inferences from that evidence. Those are things that she has to consider and I'm going to deny the motion to stay. On June 19, 2017, the first day of trial, judgment was entered in favor of the Mosers.

This timely appeal followed. DISCUSSION Under the Fifth Amendment to the United States Constitution, "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. The Fifth Amendment applies to the States through the Fourteenth Amendment.

See Malloy v. Hogan, 378 U.S. 1 , 6, 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964). "In order to invoke successfully the protection of the Fifth Amendment, an individual's statement must be compelled, testimonial, and self-incriminating." In re Ariel G. , 383 Md. 240 , 244, 858 A.2d 1007 (2004) (citing Fisher v. United States , 425 U.S. 391 , 408, 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976) ). It is well-established that the privilege against self-incrimination extends to witnesses in civil litigation: "[I]n a civil case the [F]ifth [A]mendment ... protects a witness from being required to make disclosure, otherwise compellable in the trial court's contempt power, which could incriminate him [or her] in a later criminal prosecution." Whitaker v. Prince George's County , 307 Md. 368 , 385, 514 A.2d 4 (1986) (citing 8 John H. Wigmore, Wigmore on Evidence § 2254 at 331 (McNaughton rev. ed. 1961) ). See also Lefkowitz v. Turley , 414 U.S. 70 , 77, 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973) (the Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings").

In a criminal prosecution, a party's invocation of the privilege may not be used against her. However, "the prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify ...." Baxter v. Palmigiano , 425 U.S. 308 , 318, 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976) (citing Wigmore § 2272, at 439); see also Long v. Long , 141 Md. App. 341 , 349, 785 A.2d 818 (2001). In this appeal, the Heffingtons contend the circuit court abused its discretion by denying their motion to stay because it did not properly weigh Kristi's constitutional privilege against self-incrimination against the Mosers' interest in an expeditious trial of the claims against them. The Mosers' response is three-pronged.

First, this issue is not preserved for review because the Heffingtons acquiesced in the court's granting the motion for judgment against them. Second, if the issue is preserved, it lacks merit because Kristi waived her Fifth Amendment privilege by not actually taking the stand and invoking it at trial and by not invoking it at her deposition. And third, if the issue is preserved and the privilege was not waived, the court did not abuse its discretion by denying the motion to stay given that it was filed on the eve of trial and the criminal case could last for years. a. We begin with the threshold matter of preservation.

Trial commenced four days after the motion to stay was denied. At the outset, the Heffingtons' lawyer proposed a process to follow to "protect [his] client's interests[,]" i.e., Kristi's Fifth Amendment right not to incriminate herself. A jury would be seated, opening statements would be waived, and he would proffer that Kristi was invoking her Fifth Amendment right and that without her testimony the Heffingtons could not put on evidence to prove their case. He then would move for a mistrial, rest the plaintiffs' case, and the defense would move for judgment.

Counsel for the parties agreed to shorten the process even more by waiving voir dire and simply seating the first six jurors from the venire panel. They further agreed that when the venire was brought into the courtroom the trial judge would inform them that they would not be hearing any evidence and that for "procedural reason[s]" the plaintiffs would rest, the defendants would make motions, the court would rule, and it would be a "very short day." The process proposed was followed by counsel for the Heffingtons, counsel for the Mosers, and the court. As noted, the Mosers maintain that the Heffingtons failed to preserve their Fifth Amendment issue for review because they acquiesced in the court's granting the motion for judgment. Specifically, they argue that the Heffingtons should have presented evidence other than Kristi's testimony to prove their case and did not adequately explain why they could not do so.

The Mosers assert that this case is similar to Osztreicher v. Juanteguy , 338 Md. 528 , 535, 659 A.2d 1278 (1995), in which the Court of Appeals held that when, after a trial court precluded a medical malpractice plaintiff from calling his preferred expert, the plaintiff elected not to go forward with evidence, resulting in a judgment against him, he had "acquiesced in, if not consented to, the entry of that judgment." The Mosers did not object to the process suggested by counsel for the Heffingtons; on the contrary, they participated in it. They expected that the Heffingtons would not be presenting any evidence and did not take the position that they should be required to or, as they now assert, that there was evidence other than Kristi's testimony that could serve as a sufficient substitute. Because they did not object, the issue was neither raised nor decided below and therefore was not preserved. Md. Rule 8-131(a).

To the extent there was acquiescence, it was by the Mosers in the process the Heffingtons' lawyer proposed be followed, not by the Heffingtons in the judgment. This case is unlike Osztreicher v. Juanteguy . There, on the first day of trial, one of the plaintiff's expert witnesses refused to testify because he did not want to reveal how much money he had earned from giving expert witness testimony. The plaintiff had identified another expert, however, and that expert was available to testify.

The plaintiff's counsel did not want to call the available expert because he was retired, and counsel thought the jury would give less weight to his testimony for that reason. He elected not to put on any evidence, which resulted in an adverse judgment, to which the Court of Appeals held the plaintiff had acquiesced. In that situation, counsel for the plaintiff made a strategic decision not to present evidence that could have been presented; opposing counsel did not agree to that process; and no party's Fifth Amendment right was at stake. None of those circumstances apply here. b.

(1) The Mosers maintain the Heffingtons waived their Fifth Amendment issue because Kristi did not actually take the stand and invoke the privilege. This waiver argument is not preserved for the same reason the acquiescence argument is not preserved. At no time did the Mosers object to Kristi's invoking the Fifth Amendment without taking the stand or assert, as they do now, that Kristi had to invoke the privilege on the stand and allow the jurors to draw a negative inference from that. See Baxter , 425 U.S. at 318 , 96 S.Ct. 1551 ; Kramer v. Levitt , 79 Md. App. 575 , 587, 558 A.2d 760 (1989) (discussing permissible adverse inferences in civil cases based upon a party's invocation of the Fifth Amendment privilege).

Again, the Mosers participated without objection in the process suggested by counsel for the Heffingtons, which called for no evidence to be taken-including the invocation of a privilege that could give rise to an adverse inference-and short circuited the jury selection process for that reason. 3 (2) We now turn to the thornier issue of whether Kristi waived her Fifth Amendment privilege by testifying in deposition before she was indicted. The Fifth Amendment privilege "applies not only at trial, but at the discovery stage as well." Id. at 582 , 558 A.2d 760 ; see also Md. Rule 2-402 ("A party may obtain discovery regarding any matter that is not privileged , ..., if the matter sought is relevant to the subject matter involved in the action ....") (emphasis added). "[T]he right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution." In re Master Key Litigation , 507 F.2d 292 , 293 (9th Cir. 1974). The privilege may be invoked " 'where the information sought to be extracted presents "a realistic threat of incrimination." ' " United States v. U.S. Currency , 626 F.2d 11 , 14 (6th Cir. 1980) (quoting United States v. Powe , 591 F.2d 833 , 845 n.36 (D.C. Cir. 1978).

In Choi v. State , 316 Md. 529 , 536, 560 A.2d 1108 (1989), the Court adopted the following standard from Hoffman v. United States , 341 U.S. 479 , 486-87, 71 S.Ct. 814 , 95 L.Ed. 1118 (1951) : "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Moreover, "[t]he privilege afforded not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute ...." Hoffman , 341 U.S. at 486 , 71 S.Ct. 814 . Thus, in the case at bar, even though Kristi's deposition was taken before charges were filed against her, she could have invoked the privilege in response to questions posed by counsel for the Mosers; her answers could incriminate her in a potential future prosecution for theft or identity theft. The Mosers urge that by testifying "at great length in her extensive deposition ... answer[ing] a multitude of wide-ranging questions" without invoking the privilege, Kristi must be held to have waived the privilege with regard to the subject matter covered. They rely primarily on Brown v. United States , 356 U.S. 148 , 78 S.Ct. 622 , 2 L.Ed.2d 589 (1958), to advance this argument.

In Brown , the government sought to denaturalize Stefana Brown, alleging that she was a member of the Communist Party when she was naturalized and therefore falsely swore allegiance to the United States Constitution in her naturalization proceeding. At trial, the government called Brown as an adverse witness. She admitted that she had once been a member of the Young Communist League but denied that she had belonged to the Communist Party before she was naturalized. When questioned about whether she became a member of the Communist Party after she was naturalized, she invoked her Fifth Amendment privilege against self-incrimination.

Brown's attorney declined to cross-examine her, choosing instead to call her as a witness in the defense case. On direct, Brown reaffirmed the truth of the statements she had made at the time of her naturalization, elaborating that she had "never taught or advocated the overthrow of the existing government or belonged to any organization that did so advocate ...." Id. at 150 , 78 S.Ct. 622 . On cross-examination, the government asked Brown: "Are you now or have you ever been a member of the Communist Party of the United States?" Id. at 152 , 78 S.Ct. 622 . Brown refused to answer, invoking her Fifth Amendment privilege.

The district court ordered her to answer, ruling that "by taking the stand in her own defense [Brown] had abandoned the privilege ...." Id. Upon her continued refusal to answer, the court held Brown in contempt and sentenced her to imprisonment for six months. Brown's appeal from the contempt judgment reached the Supreme Court, which affirmed. It stated that "[a] witness who is compelled to testify ... has no occasion to invoke the privilege against self-incrimination until the testimony sought to be elicited will in fact tend to incriminate." Id. at 155 , 78 S.Ct. 622 .

"On the other hand, when a witness voluntarily testifies , the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process." Id. (emphasis added). This is so, the Court reasoned, because the witness has a "choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all." Id. Thus, a witness who testifies voluntarily waives the right to invoke the Fifth Amendment privilege against self-incrimination on matters within the scope of cross-examination.

The Mosers argue that, like the defendant in Brown , Kristi voluntarily testified at a wide-ranging deposition and has, by her conduct, waived her Fifth Amendment privilege as to the subject matter of her testimony. We disagree. "Waiver is conduct from which it may be inferred reasonably an express or implied 'intentional relinquishment' of a known right." Exxon Mobil Corp. v. Ford , 433 Md. 426 , 462, 71 A.3d 105 (2013). To be sure, the Fifth Amendment privilege is "not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion." Maness v. Meyers , 419 U.S. 449 , 466, 95 S.Ct. 584 , 42 L.Ed.2d 574 (1975).

Nevertheless, "courts ... indulge every reasonable presumption against finding a testimonial waiver [of the Fifth Amendment privilege.]" Klein v. Harris , 667 F.2d 274 , 287 (2d. Cir. 1981) (citing Emspak v. United States , 349 U.S. 190 , 198, 75 S.Ct. 687 , 99 L.Ed. 997 (1955) ). "Prior disclosures should not be held to constitute a waiver of privilege against self-incrimination in subsequent proceedings when the reason for the apprehension did not exist at the time the first testimony was given." Kirane v. City of Lowell , 622 F.Supp. 262 , 264 (D. Mass 1985) (emphasis added). This concept underlies the majority rule in federal jurisprudence, which recognizes that the Fifth Amendment privilege is "proceeding specific," i.e. , that the privilege is "not waived in a subsequent proceeding by waiver in an earlier one[.]" In re Morganroth , 718 F.2d 161 , 165 (6th Cir. 1983) ; see also United States v. Licavoli , 604 F.2d 613 , 623 (9th Cir. 1979) ; United States v. Cain , 544 F.2d 1113 , 1117 (1st Cir. 1976) ("It is hornbook law that the waiver is limited to the particular proceeding in which the witness appears."); United States v. Miranti , 253 F.2d 135 , 139 (2d Cir. 1958) ("[I]t is well established that a waiver of the privilege in one proceeding does not affect the rights of a witness or the accused in another independent proceeding."); In re Neff , 206 F.2d 149 , 152 (3rd Cir. 1953) ("It is settled by the overwhelming weight of authority that a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding."); accord United States v. Lawrenson , 315 F.2d 612 , 613 (4th Cir. 1963).

The justification for the majority rule was aptly summarized by the Sixth Circuit: "during the period between the successive proceedings conditions might have changed creating new grounds for apprehension ...." In re Morganroth , 718 F.2d at 165 . In Brown , the defendant did not invoke the privilege when she testified, voluntarily, on direct examination in her defense case, and therefore she was held to have waived the privilege for purposes of cross-examination. In the case at bar, we need not address whether a pre-trial deposition and a trial in the same case are different "proceedings" for purposes of Fifth Amendment waiver because, even if they are not, here, unlike in Brown , a significant change in circumstance took place after Kristi's testimony in deposition and before trial. Although, when she filed suit, Kristi knew that criminal charges might be brought against her, she reasonably could have believed by November 2016 that that might not happen, given the passage of time.

When she was indicted in February 2017, the Fifth Amendment calculus changed dramatically. She no longer faced only a possibility of being charged with crimes arising from her employment at the Practice, but the absolute certainty of it. "[T]he potential for self-incrimination is greatest" after an indictment is returned. Walsh Sec. Inc. v. Cristo Prop.

Mgmt., Ltd. , 7 F.Supp.2d 523 , 527 (D. N.J. 1998) (citation omitted). And, even if Kristi's trial testimony merely repeated her deposition testimony, "reiteration adds to the credibility of the statement." Miranti , 253 F.2d at 140 . Because Kristi's indictment created "new grounds for apprehension," In re Morganroth , 718 F.2d at 165 , one cannot reasonably infer from her pre-indictment deposition testimony a waiver of her Fifth Amendment privilege post-indictment. Nor would such an inference comport with the dictate of the Court of Appeals, quoting Hoffman v. United States , 341 U.S. at 486 , 71 S.Ct. 814 , that the privilege against self-incrimination "must be accorded a liberal construction in favor of the right that it was intended to secure." Adkins v. State , 316 Md. 1 , 8, 557 A.2d 203 (1989).

Furthermore, had Kristi invoked her Fifth Amendment privilege at her deposition, refusing to answer questions about her management of the Practice, the Mosers undoubtedly would have filed a motion to compel and, ultimately, for sanctions. At that time, in the absence of criminal charges, it is highly unlikely the circuit court would have been willing to entertain a stay of