Former RI Speaker: Complying with 38 Studios Case Subpoena Violates Fifth Amendment Rights

May 21, 2014 - GamePolitics Staff

Former Rhode Island House Speaker Gordon Fox said on Tuesday in court (through his attorney) that he was resisting a court order to comply with a subpoena in the state’s 38 Studios lawsuit. His attorney argued on Tuesday that providing the information requested from the state could put him in legal jeopardy. Albin Moser, Fox’s lawyer, cited three recent stories on WPRI – about the March 21 FBI raids targeting Fox's home and offices, a state probe into possible lobbying violations by 38 Studios, and a state police leader confirming his organization’s 38 Studios investigation – to make the case against the subpoena issued by one of the defendants in the suit, Wells Fargo & Co.

"Mr. Fox has a privilege against self-incrimination and a right to an order quashing this subpoena," Moser wrote in a legal brief filed Tuesday afternoon. "In light of the federal and state raids in March, and the State Police’s declaration that it is investigating 38 Studios, Mr. Fox cannot be compelled to respond to this subpoena."

Moser cited the Fifth Amendment of the U.S. Constitution and the first article of the Rhode Island Constitution to argue that forcing Fox to comply with the Wells Fargo subpoena – which seeks a long list of documents related to 38 Studios – would violate his right to avoid self-incrimination.

Moser went on to say in his brief submitted to the court that Fox is concerned "such information would possibly be used by authorities as a link in the chain, or prosecutorial lead against him, in what is acknowledged as a current State Police investigation."

"Given that Mr. Fox has been the subject of a state and federal raid, and 38 Studios is the subject of a current investigation, he has a reasonable belief that any response he would make would be used in the investigation in an effort to incriminate him, affording him the right against self-incrimination to respond," he continued.

R.I. Superior Court Judge Michael Silverstein ordered Moser to file the more extensive legal document after hearing arguments last Thursday from both sides about whether to quash the subpoena. Thomas Holt, Wells Fargo’s lawyer, has until Thursday to file his response. It’s not clear yet when Silverstein will rule.

The hearing was held as part of the pre-trial process for the state's lawsuit against the principles involved in the 38 Studios deal.

Fox resigned as House speaker following the raids in March but is still representing House District 4 on Providence’s East Side. He has been attending General Assembly sessions in that capacity. Fox will not be running for re-election in November.

Source: WPRI


Re: Former RI Speaker: Complying with 38 Studios Case ...

I wonder if you could use this argument to talk your way out of blowing into a breathalyzer.  "No way, officer!  If I blew into that thing, you would know how drunk I am!"

Re: Former RI Speaker: Complying with 38 Studios Case ...

People have tried, the police have not been amused.  The legal argument for this is that Implied Consent comes with being issued a driver's license, so by driving you are agreeing to certain safety tests.

Re: Former RI Speaker: Complying with 38 Studios Case ...

As I understand it, the 5th Amendment lets you refuse to testify against someone else because your testimony will incriminate you as well, so, no.

Re: Former RI Speaker: Complying with 38 Studios Case ...

The 5th amendment also covers not incriminating yourself, but things get a little hazy when it comes to handing over evidence.  In general it only really covers answering questions or taking the stand, but people try to apply it to discovery all the time and generally fail.

It is a stupid legal move that I can not imagine any reasonable lawyer thinking it would work.  Though it could tie things up in red tape for a while, depending on how much cash one has to keep the ball rolling.

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