Court allows evidence from litigant who had earlier claimed fifth amendment privilege
Paul Paulson claimed the fifth amendment privilege against self-incrimination in a debtor's examination arising out of his bankruptcy claim. Later, the assignee of Old Kent Bank, who was a major creditor of his defunct business, Lakeside Machine, Inc., sued Paulson and his wife for fraud or "reckless disregard of the truth." The wife claimed that she was simply acting in a ministerial role when she signed various loan documents for the bank, and her husband filed an affidavit supporting this claim.
The bank had sold its claim to Cadle Company II, Inc., which sought a summary ruling that both Paulson and the wife were responsible for the debt, individually. The trial court granted summary disposition in favor of Cadle and refused to consider Paulson's affidavit supporting his wife's "ministerial" defense. The Appellate Court reversed and sent the case back for further review. It held that since the Cadle Company had not sought to depose Paulson in the current action, and since he therefore had not used the privilege in the current action to avoid discovery, it was unfair to deprive him (or a third-party) of the right to offer his account of events into evidence.