00-2172 Harris v. City of Chicago, et al.

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“[D]efendants’ contention that Ramos was willing to speak freely at the Sept. 28, 1998 deposition is belied by the fact that, at that deposition, Ramos invoked the Fifth Amendment in response to several general questions which could not possibly have incriminated him. Defendants also gloss over the fact that Ramos never amended or supplemented any of his interrogatory responses, nor did he ever produce a single document during discovery. Rule 26 of the Federal Rules of Civil Procedure provides that: ‘a party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect.’ Fed. R. Civ. P. 26(e)(2). Thus, Harris was entitled to assume that Ramos’s interrogatory responses had not changed, and rely on those answers in preparing for deposition. Absent an effort by Ramos to clarify where he asserted the privilege and where he did not, it was not unreasonable for Harris to assume that Ramos’s position with respect to the privilege remained unchanged. Contrary to defendants’ suggestion, Harris was not required to continue asking questions until he hit an issue that Ramos was willing to testify about. Therefore, we agree with Harris that Ramos did not abandon his Fifth Amendment privilege with respect to the events at issue in this case until just prior to trial. Consequently, we find that the district court’s ruling that Harris was precluded from presenting to the jury evidence of Ramos’s prior silence was an abuse of discretion.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Manning, J., Kanne, J.