A Peek in Pandora’s Box: Folding Carton and the Privilege Against Self-Incrimination in Civil Antitrust Actions

The purpose of this article is to examine the dimensions of an individual’s Fifth Amendment privilege in a civil antitrust action where the person has not yet been guaranteed that criminal prosecution is no longer possible. Two issues are apparent: first, under what conditions may a civil antitrust defendant properly invoke the privilege; second, if a civil antitrust plaintiff seeks to discover information privileged under the Fifth Amendment, what is the proper response to the problem? Folding Carton provides an excellent example of the process of antitrust litigation and demonstrates the tensions involved. Using that case as an example, the article examines the competing interests and analyzes the various standards for protection under the Fifth Amendment in an antitrust action. Finally, the article suggests the proper rule for invocation of the privilege: Fifth Amendment rights of a civil antitrust defendant should prevail if immunity is absent and if any criminal prosecution is still possible. The proposal that an exclusionary rule be used rather than the privilege is shown to be an unsatisfactory solution because it would provide inadequate protection of an individual’s Fifth Amendment rights by compromising the privilege.