Jed I. Bergman and Cynthia M. Jordano summarize the key principles courts generally apply in deciding whether to permit Fifth Amendment adverse inferences in civil suits against corporate defendants.

Almost a century ago, Justice Louis Brandeis recognized that “[s]ilence is often evidence of the most persuasive character.” Bilokumsky v. Tod, 263 U.S. 149, 153 (1923). In civil litigation that ...