In RE MARCUS SILVA v. the State of Texas

Supreme Court of Texas
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No. 24-0284
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In re Marcus Silva,
Relator

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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK, joined by Justice Devine, concurring in the
denial of the petition for writ of mandamus.

“No person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. CONST. amend. V. In civil litigation, the
Fifth Amendment’s protection against self-incrimination operates as a
privilege against discovery. See Tex. Dep’t of Pub. Safety Officers Ass’n
v. Denton, 897 S.W.2d 757, 760 (Tex. 1995). The rules governing the
assertion of discovery privileges in Texas courts are well-settled. See
TEX. R. CIV. P. 193.3, 193.4. When the Fifth Amendment is invoked,
these procedural rules protect witnesses from self-incrimination, but
they also ensure that “[t]he witness is not exonerated from answering
merely because he declares that in so doing he would incriminate
himself.” Hoffman v. United States, 341 U.S. 479, 486 (1951). The
witness’s “say-so does not of itself establish the hazard of incrimination.
It is for the court to say whether his silence is justified.” Id.
The rules require the party resisting discovery on the basis of a
privilege to produce a privilege log that does not waive the privilege or
divulge privileged information. TEX. R. CIV. P. 193.3(b). If, as may be
the case when the Fifth Amendment is claimed, no such log can be
produced without piercing the privilege, the rules do not contemplate
automatic, blanket protection against all discovery based purely on the
witness’s “say-so.” Hoffman, 341 U.S. at 486. Instead, the rules
contemplate that “[i]t is for the court to say whether . . . silence is
justified.” Id. Thus, if the party seeking discovery objects to an
assertion of the Fifth Amendment, and if the court has reason to suspect
that a blanket, unexamined application of the privilege would conceal
responsive information that is actually not privileged, then the court has
the authority to inspect the materials in camera to determine the
validity of the assertion of the privilege. TEX. R. CIV. P. 193.4(a).
In a perfect world, we could take parties at their word. But this
is litigation, and for obvious reasons, “[a] blanket assertion of the
privilege without inquiry by the court[] is unacceptable.” United States
v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). In camera inspection,
which divulges nothing to the opposing party or to the world, enables
the court to make an informed ruling on the privilege and ensures that
a party cannot unilaterally decide to withhold discovery without ever
subjecting its claim of privilege to judicial scrutiny.
These basic rules of civil discovery have not yet been followed in
this case, in either the trial court or the court of appeals. Because the
court of appeals’ opinion incorrectly suggests they need not be followed
in this case and other cases like it, I disagree with the Court’s decision

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not to dispose of this mandamus petition in a way that vacates the court
of appeals’ opinion. However, because the outcome in the trial court may
not have been correct either—and because Mr. Silva’s atrocious
treatment of his ex-wife during this litigation makes him a particularly
unsuitable beneficiary of this Court’s discretionary exercise of
mandamus jurisdiction1—I concur in the Court’s decision to leave in
place the court of appeals’ vacatur of the trial court’s broad discovery
order.
In my view, the matter should return to the trial court, which may
use the discovery rules to conduct a more thorough inquiry into the Fifth
Amendment questions, perhaps informed by in camera inspection of the
documents themselves—rather than by speculation and surmise about
their contents, which are all that is before this Court. Whether
application of the procedural rules governing the assertion of privileges
will ultimately yield the result either party seeks is not a question before
this Court, and I express no view on it.

1 The record contains several disturbing indications that, in addition to

whatever genuine concern for his unborn child Marcus Silva may or may not
have had, he has engaged in disgracefully vicious harassment and intimidation
of his ex-wife Brittni during the course of their marriage’s demise and during
this litigation. I can imagine no legitimate excuse for Marcus’s behavior as
reflected in this record, many of the details of which are not fit for reproduction
in a judicial opinion. Regrettable as this aspect of the case may be, it does not
excuse Brittni or her lawyers from compliance with the usual procedural
requirements for the assertion of discovery privileges—though she may have
other defenses to discovery arising from Marcus’s behavior. I write separately
only because, irrespective of the troubling factual background of this case, the
precedent created by the court of appeals’ opinion should be undone because
its error could infect future cases.

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***
“If anything, when a case involves a controversial issue, we
should be especially careful to be scrupulously neutral in applying [the]
rules.” Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 635 (2016)
(Alito, J., dissenting). Justice Alito wrote those words in a case about
abortion, and they are relevant again today in another such case.
Marcus Silva sued three of his ex-wife’s friends, alleging they
assisted his ex-wife in obtaining drugs used to abort the Silvas’ unborn
child during their marriage. Marcus subpoenaed his ex-wife Brittni, a
non-party, seeking several broad categories of information regarding the
pregnancy, the abortion, the abortion-inducing drugs, and her
communications with her friends, the defendants. Relying on the Fifth
Amendment and several other arguments, Brittni declined to produce
any documents or to offer a privilege log. Marcus moved to compel. The
trial court granted the motion, ordering Brittni to produce all responsive
information despite her claim that doing so could expose her to criminal
liability under both Texas abortion laws and the federal Comstock Act.
Brittni sought mandamus relief in the court of appeals, which
granted relief and ordered the trial court to vacate its order compelling
production. In re Silva, No. 14-23-00834-CV, 2024 WL 1514565, at *5
(Tex. App.—Houston [14th Dist.] Apr. 9, 2024). The court of appeals did
not review any of the responsive material in camera, and it appears that
no court has yet done so. The court of appeals nevertheless held that
Brittni is “privileged against providing responsive items for all seven of
Marcus Silva’s discovery requests” because “simply by producing such

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evidence, relator would be constructing a chain of evidence that could
link to her abortion-related prosecution.” Id. at *4.
***
Once a party claims a privilege against discovery, the party
“seeking discovery may serve a written request that the withholding
party identify the information and material withheld.” TEX. R. CIV. P.
193.3(b). The withholding party must then provide a description of “the
information or materials withheld that, without revealing the privileged
information itself or otherwise waiving the privilege, enables other
parties to assess the applicability of the privilege.” Id. 193.3(b)(1).
Brittni declined to do so. It is of course conceivable, in the Fifth
Amendment context, that merely describing responsive documents as
contemplated by Rule 193.3(b) could itself amount to compelled
self-incrimination in violation of the Fifth Amendment. The court of
appeals took this view of Brittni’s situation. It is hard to know whether
that view is correct without knowing more about the documents, which
is one reason the rules contemplate in camera inspection. But even so,
the court of appeals took the additional step of authorizing Brittni not
just to withhold a privilege log, but to withhold all responsive
information without any further judicial inquiry—even though Marcus’s
discovery requests cast a far wider net than any legitimate Fifth
Amendment concerns Brittni may have.
To begin with, the Fifth Amendment applies only when the
witness has a “reasonable cause to apprehend danger.” Ohio v. Reiner,
532 U.S. 17, 21 (2001). As a matter of law, Brittni does not have a
reasonable cause to fear prosecution under Texas’s abortion laws.

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Texas’s recently enacted abortion laws that might otherwise apply to
Brittni contain clear provisions exempting from prosecution women who
obtain abortions.2 And Texas’s longest-standing criminal prohibition on
abortion,3 which pre-dates Roe v. Wade, has for over a hundred years
been subject to the Court of Criminal Appeals’ repeated, unequivocal
holding that “a woman who voluntarily submits to an abortion, or
advises, encourages or procures it to be done, is not a principal offender
nor accomplice.” Crissman v. State, 245 S.W. 438, 438 (Tex. Crim. App.
1922); see also Gray v. State, 178 S.W. 337, 341 (Tex. Crim. App. 1915)
(“It has been so many times decided by this court that the woman upon
whom an abortion is committed is not an accomplice that we regard the
question as settled.”).
Next, even if we assume that Brittni has a “reasonable cause to
apprehend danger” from prosecution under the federal Comstock Act—
a tenuous assumption given the Act’s desuetude, but perhaps not a
tenuous assumption given the Act’s text—Marcus’s broad discovery
requests seek information that far exceeds the scope of Comstock Act
liability. The Comstock Act penalizes “[w]however knowingly uses the
mails for the mailing . . . of anything declared by this section . . . to be
nonmailable, or knowingly causes to be delivered by mail . . . or
knowingly takes any such thing from the mails for the purpose of
circulating or disposing thereof, or of aiding in the circulation or

2 See TEX. HEALTH & SAFETY CODE §§ 170A.003, 171.065(b),
171.206(b)(1) (exempting pregnant women on whom an abortion is performed
from criminal liability); TEX. PENAL CODE § 19.06(1) (same).
3 TEX. REV. CIV. STATS. arts. 4512.1–.6.

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disposition thereof.” 18 U.S.C. § 1461. Articles declared “nonmailable”
by the Act include:
Every article or thing designed, adapted, or intended for
producing abortion, or for any indecent or immoral use; and
Every article, instrument, substance, drug, medicine, or
thing which is advertised or described in a manner
calculated to lead another to use or apply it for producing
abortion, or for any indecent or immoral purpose . . . .
Id. The Act also prohibits knowingly using an “interactive computer
service . . . for carriage in interstate or foreign commerce” of “any drug,
medicine, article, or thing designed, adapted, or intended for producing
abortion, or for any indecent or immoral use.” Id. § 1462(c).
The Comstock Act—whose continued vitality has not recently
been tested—is concerned with the mailing, or the online interstate
trafficking, of abortion-inducing drugs (as well as “obscene,
lewd, lascivious, or filthy” substances, such as pornography). Id.
§ 1462(a), (b). Marcus’s discovery requests, by contrast, are broadly
written to cover any information regarding the pregnancy and the
abortion. Like any litigant, Brittni has the right to assert objections to
the breadth or relevance of these requests, or to make any of the many
other objections available to her as a non-party served with a subpoena.
But she cannot, based on nothing more than her lawyers’ say-so, use the
narrow way in which some of her responses could implicate her in a
highly speculative Comstock Act prosecution as a reason not to provide
any response at all.
The court of appeals suggested that merely acknowledging
possession of an abortion-inducing drug would provide a “link in the
chain” of evidence necessary for a Comstock Act conviction. In re Silva,

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2024 WL 1514565, at *4. But if the Fifth Amendment protects parties
in civil litigation from acknowledging the mere possession of any of the
items whose mailing is outlawed by the Comstock Act, then there could
scarcely ever be any civil litigation regarding the abortion industry or
the pornography industry. That cannot be the rule. A party who merely
acknowledges possession of an otherwise lawful substance does not have
reasonable cause to apprehend danger from a Comstock Act prosecution
premised on the substance’s illicit transportation through the mail or
over the internet.
Finally, even if I am wrong on these points—that is, even if
Brittni has a legitimate fear that merely acknowledging the existence of
any responsive materials would incriminate her in violation of the Fifth
Amendment—the proper result would still not be the blanket,
unexamined assertion of privilege sanctioned by the court of appeals.
The correct course, instead—if the trial court suspects the assertion of
privilege may be unfounded, as was clearly the case here—is in camera
inspection of the allegedly privileged material so that a neutral arbiter
can analyze the claim of privilege with reference to the documents at
issue. That has never happened in this case. When “a party asserting
privilege claims makes a prima facie showing of privilege and tenders
documents to the trial court, the trial court must conduct an in camera
inspection of those documents before deciding to compel production.” In
re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004); see
also TEX. R. CIV. P. 193.4(a) (“If the court determines that an in camera
review of some or all of the requested discovery or required disclosure is

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necessary, that material or information must be segregated and
produced to the court . . . .”).
Whether the Fifth Amendment protects a party from divulging
documentary evidence is a question best answered with reference to the
documents at issue. Because the court of appeals’ opinion forecloses that
pathway by authorizing the blanket withholding of all responsive
materials based on the Fifth Amendment, I object to the Court’s decision
to dispose of this mandamus petition in a way that does not vacate the
court of appeals’ opinion. Of course, no party should take this Court’s
action as agreement with the court of appeals’ opinion. I nevertheless
concur in the Court’s decision not to disturb the court of appeals’ vacatur
of the trial court’s broad discovery order. Unlike the court of appeals, I
would send the parties back to square one in the trial court, as described
herein.

James D. Blacklock
Justice

OPINION FILED: June 21, 2024

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