SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3472-18T1

 A-3473-18T1

PROVIDENT BANK,

Plaintiff-Respondent,

v.

RAJENDRA KANKARIYA 

and JYOTI KANKARIYA,

Defendants-Appellants.

____________________________

Argued September 11, 2019 – Decided

Before Judges Whipple, Gooden Brown and Mawla.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Bergen County, 

Docket No. L-2729-18.

Michael Angelo Baldassare argued the cause for 

appellants (Baldassare & Mara, LLC, attorneys for 

appellant Rajendra Kankariya; Michael Angelo

Baldassare, on the joint briefs).

Gruppuso Legal, attorneys for appellant Jyoti 

Kankariya (Anthony M. Gruppuso, on the joint brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 9, 2019
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John R. Stoelker argued the cause for respondent (Mc

Carter & English LLP, attorneys; Joseph J. Lubertazzi, 

of counsel and on the brief; John R. Stoelker, on the 

brief).

PER CURIAM

The power to compel testimony is limited by the Fifth Amendment. In 

these consolidated appeals, on leave granted, we examine application of that

limitation. Defendants Rajendra and Jyoti Kankariya appeal the trial court's 

February 11, 2019 discovery order requiring them to comply with plaintiff 

Provident Bank's discovery requests or face potential imprisonment pursuant to 

a writ of capias ad satisfaciendum (ca. sa.). We affirm.

I.

Defendants own Lotus Exim International, Inc. (LEI), a marble and 

granite wholesaler. In January 2017, defendants, on behalf of LEI, obtained a 

$17 million dollar loan from plaintiff Provident Bank. To secure the loan, 

defendants executed personal guarantees promising to repay the loan in the 

event of a default. As part of the loan application, defendants submitted personal 

financial statements wherein they claimed to own: a home valued at $1,200,000, 

$700,000 worth of securities, life insurance policies with cash surrender values 

of $160,000, and personal property worth $90,000. 
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Soon after securing the loan, LEI defaulted and, in addition to other 

related entities, filed for bankruptcy in the United States Bankruptcy Court for 

the District of New Jersey. Defendants filed a personal petition for chapter 

seven bankruptcy, but it was dismissed. On April 16, 2018, plaintiff filed a 

complaint in the Superior Court against defendants, seeking a judgment for the 

full amount due on the loan by means of the personal guarantees. Defendants 

did not file responsive pleadings and default was entered against them. On June 

26, 2018, a final judgment of default was entered against defendants in the 

amount of $16,972,003.52. Defendants do not dispute the judgment's validity. 

In order to collect on its judgment, plaintiff filed a verified petition for 

discovery under Rule 4:59-1, to obtain an order directing defendants to provide 

documents and sworn testimony concerning their personal assets. On July 5, 

2018, the trial judge entered a discovery order and required defendants to 

produce documents by July 20, 2018, and attend depositions on July 30, 2018. 

Meanwhile, in the bankruptcy proceeding, the trustee served defendants with 

subpoenas to obtain documents and testimony related to the debtor. In response 

to a motion to quash, the bankruptcy court ordered defendants turn over 

documents in their custodial capacity, but provided that the act of production 

could not be used against them in any criminal, civil, or other legal proceeding.

.
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On July 20, 2018, defendants did not deliver any documents to plaintiff

and during their respective depositions, defendants asserted their Fifth 

Amendment privilege in response to all of plaintiff's questions, except their 

name, address and date of birth. Some questions appeared innocuous, such as: 

whether defendants drove a car to the deposition; whether defendants owned 

furniture; whether defendants held bank accounts; whether defendants owned 

jewelry and the value of the jewelry Jyoti was wearing; whether defendants paid 

for utilities at their home; whether defendants maintained health insurance;

whether defendants owned any collections, like a wine or stamp collection and;

whether defendants brought their drivers licenses to the deposition. A few 

questions were directed at whether defendants received any money from LEI. 

As a result of defendants' assertion of Fifth Amendment rights, plaintiff 

moved for an order enforcing litigant's rights, issuance of a writ of ca. sa., and 

other related relief. Oral argument was held on November 2, 2018. Plaintiff 

argued defendants were not entitled to make a "blanket" assertion of their Fifth 

Amendment privilege without showing there is a link between the questions 

asked and potential criminal prosecution. In response, defendants argued that 

all the questions about defendants' personal finances and assets were "links in 

the chain" of potential criminal prosecution. When pressed on the credibility of 
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their fear of criminal prosecution, defendants cited to an allegation made in the 

bankruptcy proceeding that LEI's principals, i.e., defendants, fraudulently 

procured the loan.

The fraud allegation appeared in a preliminary statement included in 

plaintiff's brief in support of its motion for summary judgment in the bankruptcy 

proceeding. Plaintiff was engaged in a priority dispute with Itria Ventures LLC 

(Itria), who allegedly induced plaintiff to extend the loan to LEI. Thus, plaintiff 

asserted "it can easily establish the fraud committed by Itria, Biz2Credit [Itria's 

affiliate], LEI and their principals on creditors, including Provident." 

"Principals" includes defendants, who own LEI. No grand jury investigations 

or pending criminal prosecutions were brought to the court's attention.

According to defendants, the fraud allegation provided them with 

sufficient grounds to assert the privilege and resist all plaintiff's questions, even 

the innocuous ones. Defendants argued, if a ca. sa. were to issue, they would be 

forced to choose between jail or relinquishing their Fifth Amendment privilege. 

Thus, defendants argued the statute authorizing a ca. sa., N.J.S.A. 2A:17-78, 

was unconstitutional on its face and as applied. The court disagreed and granted 

plaintiff's motion on February 11, 2019. 
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Pursuant to N.J.S.A. 2A:17-78, a court may order the imprisonment of a 

debtor, if the debtor possesses fifty dollars or more and he refuses to devote his 

assets to satisfy the debt. However, the New Jersey Constitution provides that 

"No person shall be imprisoned for debt in any action, or on any judgment 

founded upon contract, unless in cases of fraud[.]" N.J. Const. of 1947, art. I, ¶ 

13. Despite the constitutional prohibition, the trial judge concluded writs of 

ca. sa. may still validly issue in New Jersey. Considering defendants had assets 

greater than fifty dollars, and they were resisting applying their assets to satisfy 

plaintiff's judgment, the trial judge found the writ was an appropriate remedy. 

With respect to defendants' Fifth Amendment claims, the trial judge found 

they did not demonstrate a "real and appreciable" danger that their answers could 

lead to criminal prosecution. The trial judge rejected defendants' argument that 

they were not obligated to answer any of the plaintiff's questions and noted the 

Fifth Amendment privilege must be asserted "with reference to the ordinary 

operation of the law[.]" Additionally, the judge found the privilege did not 

relieve defendants of their obligation to produce documents plaintiff requested. 

To facilitate cooperation with her discovery order, the trial judge required 

defendants to produce the requested documents by February 22, 2019, and attend

depositions ten days later. In the event defendants renewed their Fifth 
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Amendment privilege claim, the trial judge ordered that the parties were to

return for an evidentiary hearing where the trial judge could assess the merits of 

their assertions. The trial judge warned if she found defendants' Fifth 

Amendment assertions baseless, and they continued to disobey the discovery 

order, a ca. sa. would issue. An unsigned arrest order was attached to the order 

as an exhibit.

On February 22 and 28, 2019, the trial judge amended her original order 

and extended the document production and deposition deadlines. On March 12, 

2019, defendants filed orders to show cause seeking a stay of the arrest orders 

while their motion for leave to appeal was pending. After oral argument on 

March 22, 2019, the trial judge granted a stay, and we granted leave to appeal.

This appeal followed.

II.

Defendants argue the trial judge erred in her ruling that defendants 

unjustifiably invoked the Fifth Amendment privilege and must establish a 

justification in an evidentiary hearing. They also assert it was error for the judge 

to order their appearance at another deposition, answer questions and provide 

documents without immunity. Additionally, they argue their constitutional 

rights were violated and the writ ca. sa. is unconstitutional.
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Defendants frame the issues on appeal as a matter of constitutional 

interpretation, which would require de novo review. See, e.g., State v. S.S., 229 

N.J. 360, 380 (2017). However, these perceived constitutional injuries have yet 

to occur. We review the judge's discovery order under an abuse of discretion 

standard. See Pomerantz Paper Corp. v. New Cmmty. Corp., 207 N.J. 344, 371 

(2011) ("[W]e apply an abuse of discretion standard to decisions made by our 

trial courts relating to matters of discovery."). And only to the extent we 

examine the judge's legal conclusions, we review de novo. See Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial 

court's interpretation of the law and the legal consequences that flow from 

established facts are not entitled to any special deference.").

Because defendants have not appeared for additional depositions and have 

not been jailed, they ask us to review a prospective and unmaterialized violation 

of their Fifth Amendment privilege. However, the harm complained of, issuance 

of a ca. sa. will force defendants to relinquish their Fifth Amendment privilege, 

will not be ripe for review unless and until the trial court holds a Fifth 

Amendment privilege hearing consistent with its February 11, 2019, order. The 

trial court's February 11, 2019 order contains two triggering events: (1) the trial 

judge must, after a Fifth Amendment hearing, order defendants to answer 
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questions under oath and (2) if defendants decline to do so, arrest orders would 

issue. Since neither event has ocurred, we can only consider the procedures the 

trial judge designed to secure compliance with her discovery order. 

"The Fifth Amendment declares in part that 'No person . . . shall be 

compelled in any criminal case to be a witness against himself.'" Hoffman v. 

United States, 341 U.S. 479, 485–86 (1951) (quoting U.S. Const. amend. V). 

"Although New Jersey's privilege against self-incrimination is not enshrined in 

our State Constitution, 'the privilege itself is firmly established as part of the 

common law of New Jersey and has been incorporated into our Rules of 

Evidence.'" State v. Kucinksi, 227 N.J. 603, 617 (2017) (quoting State v. 

Hartley, 103 N.J. 252, 260 (1986)); see N.J.R.E. 503. "[The privilege] can be 

asserted in any proceeding, civil or criminal, administrative or judicial, 

investigatory or adjudicatory; and it protects against any disclosures which the 

witness reasonably believes could be used in a criminal prosecution or could 

lead to other evidence that might be so used." Kastigar v. United States, 406 

U.S. 441, 444–45 (1972) (footnotes omitted); see also Lefkowitz v. 

Cunningham, 431 U.S. 801, 805 (1977) ("[S]ince the test is whether the 

testimony might later subject the witness to criminal prosecution, the privilege 
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is available to a witness in a civil proceeding, as well as to a defendant in a 

criminal prosecution.").

"The privilege afforded not only extends to answers that would in 

themselves support a conviction under a federal criminal statute but likewise 

embraces those which would furnish a link in the chain of evidence needed to 

prosecute the claimant for a federal crime." Hoffman, 341 U.S. at 486. "But 

this protection must be confined to instances where the witness has reasonable 

cause to apprehend danger from a direct answer." Ibid.

"To sustain the privilege, it need only be evident from the implications of 

the question, in the setting which it is asked, that a responsive answer to the 

question or an explanation of why it cannot be answered might be dangerous 

because injurious disclosure could result." Id. at 486-87.

The test for the judge, "governed as much by his [or 

her] personal perception of the peculiarities of the case 

as by the facts actually in evidence," is whether . . . 

"there is reasonable ground to apprehend danger to the 

witness from his [or her] being compelled to answer[.]"

[In re Pillo, 11 N.J. 8, 19 (1952) (citing Hoffman, 341 

U.S. at 487) (quoting R. v. Boyes, 1 B. & S. 311, 321 

(1861)).] 

"[T]he danger to be apprehended must be real and appreciable[,]" id. at 

19–20, because the privilege "protects against real dangers, not remote and 
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speculative possibilities." Zicarelli v. N.J. State Comm. of Investigation, 406 

U.S. 472, 478 (1972).

"A witness'[s] mere claim of the privilege does not establish the hazard of 

incrimination. In re Ippolito, 75 N.J. 435, 440 (1978). It is for the court to say 

whether, under all of the circumstances, silence is justified." Id. (citing 

Hoffman, 341 U.S. at 486). A witness's sincere belief that his or her answers 

may be incriminating, without more, is not enough "to foreclose his [or her] 

answering or making a disclosure[.]" N.Y. State Nat'l Org. for Women v. Terry, 

886 F.2d 1339, 1356 (2d Cir. 1989). "If the court determines that the 

incriminatory nature is not readily apparent, the witness then must endeavor to 

explain how his answer will be incriminatory." United States v. Edgerton, 734 

F.2d 913, 919 (2d Cir. 1984). "This burden forces a witness to come 

dangerously close to doing that which he is trying to avoid." Ibid.

A party "does not have a 'blanket' right to refuse all questions." State 

Farm Indem. Co. v. Warrington, 350 N.J. Super. 379, 388 (App. Div. 2002). To 

execute a "particularized inquiry" the court must consider on a question-byquestion basis whether each "might elicit [an] incriminatory answer[][.]" United 

States v. Bowe, 698 F.2d at 560,566 (2d Cir. 1983); see Ippolito, 75 N.J. at 439 

(explaining how the Superior Court evaluated a witness's privilege claims on a 
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question-by-question basis). Thus, the trial judge must examine each question, 

determine whether "there is a reasonable basis for believing a danger to the 

witness might exist in answering a particular question," and consider "whether 

a narrower privilege would suffice to protect the witness from danger" all before 

determining whether the privilege was validly asserted. United States v. 

Thornton, 733 F.2d 121, 125 (D.C. Cir. 1984) (alterations in original); see also

Magid v. Winter, 654 So.2d 1037, 1039 (Fla. Dist. Ct. App. 1995) (requiring the 

trial court to assess witness's privilege claim "on a question-by-question basis"). 

It is within the judge's discretion, "[i]n unusual cases . . . [to] sustain a blanket 

assertion of privilege after determining that there is a reasonable basis for

believing a danger to the witness might exist in answering any relevant 

question." Thornton, 733 F.3d at 126 (alterations in original). But that requires 

a finding that the witness "could 'legitimately refuse to answer all relevant 

questions.'" United States v. Tsui, 646 F.2d 365, 367–68 (9th Cir. 1981) 

(quoting United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980)).

Moreover, the court is not limited to the formal record in making a 

privilege determination to minimize the risk a witness will disclose 
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incriminatory information. See Hoffman, 341 U.S. at 487–88 (considering news 

reports and information from sources outside the record).1 

Defendants' personal documents are given the same Fifth Amendment 

protections. See State v. Andrews, 457 N.J. Super. 14, 22 (App. Div. 2018); but 

see In re Guarino, 104 N.J. 218, 232–33 (1986) (holding that a corporation, 

partnership, or sole proprietorship's business records are not afforded the same 

Fifth Amendment protections as personal records). "When the privilege is 

asserted with respect to records, the witness must produce them so that the court 

may determine whether the claim is spurious[.]" In re Addonizio, 53 N.J. 107, 

117 (1968).

 

1

 The court also has the discretion to utilize in camera proceedings to ensure the 

witness's privilege claim is legitimate. See United States v. Duncan, 704 F. 

Supp. 820, 822–23 (N.D. Ill. 1989) (conducting in camera review of records and 

requiring witness to respond in writing to each question he refused to answer to 

explain how each response was incriminating); Commonwealth v. Pixley, 933 

N.E.2d 645, 649 (Mass. App. 2010) ("In exceptional circumstances, the 

information made available to the judge in open court will not be adequate to 

permit the judge to assess the validity of the asserted privilege. When this is the 

case, the judge may conduct an in camera hearing with the witness and the 

witness's counsel at which the witness will be required to disclose enough 

additional information to permit the judge to make the determination.")

(emphasis added). However, all of these procedures bring their own particular 

peril. See Sheridan v. Sheridan, 247 N.J. Super. 552, 565 (Ch. Div. 1990).
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Under federal law, "a person may be required to produce specific documents 

even though they contain incriminating assertions of fact or belief because the 

creation of those documents was not 'compelled' within the meaning of the 

privilege." United States v. Hubbell, 530 U.S. 27, 35-36 (2000). In United 

States v. Fisher, 425 U.S. 391, 409–10 (1976), a taxpayer was not permitted to 

withhold documents because they were voluntarily created, and therefore their 

disclosure not compelled, prior to issuance of a subpoena. Of course, the act of 

production may be testimonial in and of itself. Hubbell, 530 U.S. at 36. We 

presume this is why, in this case, the bankruptcy court granted defendants 

immunity to produce documents in their custodial, not personal, capacity.

However, unlike in the bankruptcy proceeding, defendants here are not acting 

in a custodial capacity. This suit concerns personal guarantees on a debt. Based 

on this record, defendants have not demonstrated the jeopardy apparent as 

principals in the bankruptcy proceeding.

Defendants argue they are "under no duty to explain or prove the hazard 

posed by answering [plaintiff's] questions or producing the documents sought 

by [plaintiff]." We disagree. The judge was correct in ordering the parties to 

return for a Fifth Amendment hearing in the event defendants continue to 

disobey the discovery order.
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If and when that hearing occurs, the judge must analyze the deposition 

questions on a question-by-question basis and defendants must demonstrate 

their fear of providing an incriminating response is "real and appreciable[,]" 

Pillo, 11 N.J. at 19–20, "not remote and speculative[.]" Zicarelli, 406 U.S. at 

478. The judge should determine whether "there is a reasonable basis for 

believing a danger to the witness might exist in answering a particular question," 

and consider "whether a narrower privilege would suffice to protect the witness 

from danger" all before finding the privilege was validly asserted. Thornton, 

733 F.2d at 125 (alteration in original).

Defendants must also produce the requested documents for the court to

review. Addonizio, 53 N.J. at 116–17. Defendants should be held to the same 

burden as under the testimonial privilege, and the judge should analyze their 

privilege claim on a document-by-document basis.

III.

For the first time on appeal, defendants argue that they must be given use 

immunity before providing testimony or producing documents under Whippany 

Paper Board, Co. v. Alfano, 176 N.J. Super. 363, 369 (App. Div. 1980), and 

suggest, like the defendants in that case, the trial court should not have required 

defendants to testify unless and until they received a grant of use immunity. We 
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decline to entertain the argument. "[A]ppellate courts will generally 'decline to 

consider questions or issues not properly presented to the trial court when an 

opportunity for such a presentation is available,' unless the issues relate to 

jurisdiction or substantially implicate public interest." Tractenberg v. Twp. of 

W. Orange, 416 N.J. Super. 354, 377 (App. Div. 2010) (quoting Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973)). 

IV.

Finally, we reject defendants' argument challenging the constitutionality 

of the statute authorizing writs of ca. sa. The statute authorizing writs of ca. sa.

has persisted as constitutionally firm since the passage of the 1844 constitution, 

which abolished debtor imprisonment except in cases of fraud. Moreover, we 

decline to address a constitutional question until it is necessary to do so.

Defendants' argument, the ca. sa. issued because they invoked their Fifth 

Amendment rights, distorts the case's procedural history. The judge has yet to 

hold a Fifth Amendment hearing. Therefore, defendants' perceived 

constitutional injury is, at best, unripe.

We affirm the trial judge's order, vacate the stay so the parties may 

proceed to discovery as directed and a hearing, if necessary, consistent with this 

opinion.
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Affirmed.