Opinion issued March 12, 2013




                                     In The

                                Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00607-CV
                           ———————————
                  IN RE TERRI COX FERGUSON, Relator



            Original Proceeding on Petition for Writ of Mandamus



                 DISSENTING OPINION ON REHEARING

      Relator, Terri Cox Ferguson, filed a petition for writ of mandamus

complaining about the trial court’s June 27, 2012 order overruling her assertion of

the Fifth Amendment privilege against self-incrimination in the underlying civil

suit and compelling her response to certain requests for admissions. We requested

and received a response from the real party in interest, Mario Bernal. The majority
denied the petition in an opinion issued January 10, 2013. I dissented. In response

to Ferguson’s motion for rehearing, the majority reaffirms its denial of the petition

for mandamus on the ground that Ferguson has presented insufficient evidence of

the potential harm of self-incrimination from the trial court’s order compelling her

to admit all of the essential facts necessary to prove both the wrongful death claim

against her in the underlying suit and her guilt for intoxication manslaughter in the

pending criminal proceedings on which Bernal’s wrongful death claim is based.

      In my view, the majority misconstrues Ferguson’s mandamus as seeking a

ruling on an evidentiary point peculiar to this case rather than a ruling on a point of

law applicable to all civil cases in which a trial court orders a defendant in

simultaneous criminal and civil proceedings to admit to all of the elements of the

charged crime and all of the elements of a civil claim based on the commission of

that crime.   It, therefore, erroneously employs a sufficiency of the evidence

standard of review rather than a legal one.

      I believe the majority opinion contradicts the mandate of both the United

States Supreme Court and the Texas Supreme Court that a trial court cannot

compel a witness to answer requests for admission in a civil suit unless, after a

careful consideration of all the circumstances, it determines that “the answer(s)




                                          2
cannot possibly have [a] tendency to incriminate” her. 1         I would hold that

Ferguson, a defendant in a civil case who is simultaneously subject to ongoing

criminal proceedings alleging crimes that form the basis of the civil case, cannot be

legally compelled to answer requests for admission of all the facts necessary to

prove both the elements of each of the crimes with which she is charged and her

liability in the civil case, as her answers would necessarily have a tendency to

incriminate her. Indeed, the requests for admission she is compelled by court order

to answer seek nothing but her self-incrimination or the potential basis for a

perjury charge. I would grant the petition for writ of mandamus, and I would

provisionally order the trial court to vacate its order.

                                     Background

      Ferguson is the defendant in the underlying wrongful-death lawsuit filed by

Bernal, in which Bernal alleges that Ferguson negligently struck and killed his

family-member, Gabriela Deyanira, with her car. Ferguson is also a defendant in

criminal proceedings arising from the same underlying events for intoxicated

manslaughter, failure to stop and render aid resulting in a fatality, and felony-

murder. In this civil suit, Bernal sent Ferguson twenty-one requests for admission.

These requests asked Ferguson to admit the facts and legal duties necessary to

establish each of the elements Bernal is required to prove to establish his wrongful-

1
      Ex parte Butler, 522 S.W.2d 196, 198 (Tex. 1975) (quoting Hoffman v. United
      States, 341 U.S. 479, 488, 71 S. Ct. 814, 819 (1951)).
                                            3
death cause of action and to admit the elements going to the ultimate issue of her

culpability for each of the crimes with which she is charged.

      Specifically, Bernal requested that Ferguson admit that: (1) she “do[es] not

contend that any defect or failure on the part of [her] vehicle caused the Incident”;

(2) she “do[es] not contend there is a Responsible Third party not named by

Plaintiff as a defendant in this lawsuit”; (3) she was “not on any prescription

medication at the time of the Incident”; (4) she is “not claiming that [she] suffered

from any medical condition immediately prior to the Incident that caused the

Incident”; (5) she is “not claiming that [she] suffered from any medical condition

immediately prior to the Incident that contributed to causing the Incident”; (6) her

“Vehicle was involved in the Incident”; (7) “Gabriela Deyonira Rodriguez was

killed as a result of the Incident”; (8) she “suffered no physical injuries as a result

of the Incident”; (9) she “did not stop at the scene to render aid following the

Incident”; (10) she “did not call 911 at any ti[m]e following the Incident”; (11) she

“did not return to the scene of the Incident voluntarily”; (12) she “struck Gabriela

Deyonira Rodriguez with [her] Vehicle”; (14) she “failed to maintain a single

marked lane of travel at the time of the Incident”; (15) she “failed to drive in a

single lane at the time of the Incident”; (16) she “operated [her] Vehicle in a

reckless manner at the time of the Incident”; (17) she “failed to control [her] speed

at the time of the Incident”; (18) “Gabriela Deyonira Rodriguez did not cause the

                                          4
Incident”; (19) she “owed a duty to Gabriela Deyonira Roriguez to use ordinary

care in the operation of [her] Vehicle”; (20) she “breached the duty to use ordinary

care in the operation of [her] Vehicle”; and (21) “Gabriela Deyonira Rodriguez

sustained fatal injuries in the Incident.” 2

       Ferguson asserted her Fifth Amendment privilege against self-incrimination

in response to each request individually and, subject to the assertion of the

privilege, denied each of the requests. Bernal filed a Motion to Compel Ferguson

to respond, and, after two oral hearings, the trial court issued a blanket order

overruling all of Ferguson’s assertions of her Fifth Amendment privilege without

explanation and compelled her to respond to each of Bernal’s requests for

admission.

                                  Standard of Review

       Mandamus is an extraordinary remedy that is available only when (1) a trial

court clearly abuses its discretion and (2) there is no adequate remedy by appeal.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). A trial

court clearly abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992). With respect to a trial court’s

determination of legal principles, “a trial court has no ‘discretion’ in determining


2
       Bernal’s requests for production did not include a number 13.
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what the law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135

(quoting Walker, 827 S.W.2d at 840).

                                    Discussion

      The United States Constitution and the Texas Constitution both guarantee

that a person may not be compelled to testify or give evidence against himself. See

U.S. CONST. amend. V; TEX. CONST. art. I, § 10; Maness v. Meyers, 419 U.S. 449,

464, 95 S. Ct. 584, 594 (1975); In re Commitment of Lowe, 151 S.W.3d 739, 745

(Tex. App.—Beaumont 2004, pet. denied). The Fifth Amendment can be asserted

in both civil and criminal trials “wherever the answer might tend to subject to

criminal responsibility him who gives it.” Tex. Dept. of Public Safety Officers

Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995) (quoting McCarthy v.

Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 17 (1924)). Thus it may be asserted to

avoid civil discovery if the person invoking it reasonably fears the answer would

tend to incriminate him. Id.; see also Wehling v. Columbia Broadcasting Sys., 608

F.2d 1084, 1086 (5th Cir. 1979) (“[T]he Fifth Amendment would serve as a shield

to any party who feared that complying with discovery would expose him to a risk

of self-incrimination.”).

      In a civil suit, however, the witness’s decision to invoke the privilege is not

absolute. In re Speer, 965 S.W.2d 41, 45 (Tex. App.—Fort Worth 1998, orig.

proceeding). Rather, each assertion of the privilege rests on its own circumstances,


                                         6
and blanket assertions of the Fifth Amendment privilege are not permitted in civil

cases. In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding);

Speer, 965 S.W.2d at 45–46. Instead, the privilege must be asserted on a question-

by-question basis.     Lowe, 151 S.W.3d at 745.         The trial court is entitled to

determine whether assertion of the privilege appears to be based upon the good

faith of the witness and is justifiable under all of the circumstances. Ex parte

Butler, 522 S.W.2d 196, 198 (Tex. 1975); Speer, 965 S.W.2d at 45.

      “Because the privilege against self-incrimination must be asserted

selectively in civil litigation, it follows that selective assertion of the privilege does

not result in waiver.” Speer, 965 S.W.2d at 46. Rather, upon a party’s assertion of

the Fifth Amendment privilege to a discovery request in a civil suit, the trial court

reviews the discovery request, applies the law of privilege, discovery, and

protection to the request, and determines how best to protect the privilege, the right

to proceed with the case, and the right to defend the suit. Id. at 45; see In re R.R.,

26 S.W.3d at 574. “It is the trial court’s duty to consider the witness’s evidence

and argument on each individual question and determine whether the privilege

against self-incrimination is meritorious.” Lowe, 151 S.W.3d at 745 (quoting

Speer, 965 S.W.2d at 46). “Before the judge may compel the witness to answer, he

must be ‘perfectly clear, from a careful consideration of all the circumstances in

the case, that the witness is mistaken, and that the answer(s) cannot possibly have

                                            7
such tendency to incriminate.’” Butler, 522 S.W.2d at 198 (quoting Hoffman v.

United States, 341 U.S. 479, 488, 71 S. Ct. 814, 819 (1951)); Speer, 965 S.W.2d at

45.

      The inquiry by the court is necessarily limited because the witness only has

to show that a response is likely to be hazardous to him. Speer, 965 S.W.2d at 45.

The witness cannot be required to disclose the very information the privilege

protects. Butler, 522 S.W.2d at 198; Speer, 965 S.W.2d at 45. Each question for

which the privilege is claimed must be studied, and the court must forecast whether

an answer to the question could tend to incriminate the witness in a crime. Speer,

965 S.W.2d at 45. In some instances, the ramifications of answering the question

will be apparent; in others, not so. Id. It is the latter situation that presents a

difficult problem. Id.

      Generally, the exercise of the privilege should not be penalized.             See

Spevack v. Klein, 385 U.S. 511, 514, 87 S. Ct. 625, 628 (1967); Denton, 897

S.W.2d at 760. However, because of the difference between the civil and criminal

contexts, the United States Supreme Court has allowed juries in civil cases to draw

negative inferences based on the assertion of the privilege. Denton, 897 S.W.2d at

760 (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558 (1976));

Speer, 965 S.W.2d at 46. For example, an exception to the general free exercise of

the self-incrimination privilege in a civil suit, inapplicable in this case, is when the

                                           8
plaintiff in a civil suit invokes the privilege offensively to protect information that

is privileged but also essential to the defense. Denton, 897 S.W.2d at 760–61. “A

plaintiff who uses the privilege to protect relevant information from a defendant

‘use[s] his Fifth amendment shield as a sword.’” Id. at 760–61 (quoting Wehling,

608 F.2d at 1087). The theory underlying the offensive use of the privilege against

self-incrimination is that “a plaintiff who is seeking affirmative relief should not be

permitted to maintain the action, and at the same time maintain evidentiary

privileges that protect from discovery outcome determinative information not

otherwise available to the defendant.” Id. at 761. In such a case, the general rule

against penalizing the assertion of the privilege does not prohibit the trial court

from taking acts to ensure that the proceeding remains fair, such as barring the

plaintiff asserting the privilege from introducing evidence on the subject matter of

the privilege. Id. at 760.

      In a recent case, the federal Fifth Circuit Court of Appeals held that “a party

may invoke the Fifth Amendment privilege during the discovery process to avoid

answering . . . requests for admissions,” among other discovery procedures. Davis-

Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012). This opinion accords

with the opinion in Denton, which applied the law set forth above to deny the

protection of privilege for offensive use by a plaintiff in response to requests for

admission by defendants in the suit.          See Denton, 897 S.W.2d at 760–61.

                                          9
Likewise, in Gordon v. Federal Deposit Insurance Corp., the federal Court of

Appeals for the District of Columbia Circuit analyzed the application of the

privilege against self-incrimination to requests for admission in a civil suit in light

of Federal Rule of Civil Procedure 36(b), which, like the parallel Texas rule, Texas

Rule of Civil Procedure 198.3, provides that a response to a request for admission

“cannot be used against the party in any other proceeding.” 427 F.2d 578, 581

(D.C. Cir. 1970) (citing FED. R. CIV. P. 36(b)). Reasoning that the responses could

be used “as a confirmation that facilitates the preparation of the criminal case, or

perhaps as a lead to other evidence, which is part of the protection of the

constitutional privilege,” the federal court of appeals held that the constitutional

right of a party to a civil suit not to incriminate himself applies to requests for

admission in a civil suit and that the protection afforded by the prohibition in Rule

36 is insufficient to protect that right. Id.

       Thus, both the United States Supreme Court and the Texas Supreme Court

have held that the Fifth Amendment can be asserted in both civil and criminal trials

“wherever the answer might tend to subject to criminal responsibility him who

gives it.” McCarthy, 266 U.S. at 40, 45 S. Ct. at 17; Denton, 897 S.W.2d at 760.

Both federal and Texas state courts have also held that the privilege may be

asserted to avoid civil discovery if the person invoking it reasonably fears the




                                            10
answer would tend to incriminate him. Denton, 897 S.W.2d at 761; see Wehling,

608 F.2d at 1087.

       Here, Ferguson asserted the privilege against self-incrimination on a

question-by-question basis, in accordance with both federal and state constitutional

law.   See, e.g., Lowe, 131 S.W.3d at 745.       The trial court was obligated to

determine whether her assertion of the privilege appeared to be based upon good

faith and was justifiable under all of the circumstances. See Butler, 522 S.W.2d at

198; Speer, 965 S.W.2d at 45. Although the parties agree that the trial court held

two hearings on Ferguson’s assertion of the privilege, the mandamus record

contains no indication that the trial court reviewed each discovery request, applied

the law of privilege, discovery, and protection to the request, and determined how

best to protect the privilege, Bernal’s right to proceed with the case, and

Ferguson’s right to defend herself against his suit. See In re R.R., 26 S.W.3d at

574; Speer, 965 S.W.2d at 45. Nor is there any evidence that the trial court

exercised its “duty to consider the witness’s evidence and argument on each

individual question and determine whether the privilege against self-incrimination

is meritorious.” See Lowe, 151 S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46).

       Rather, the record shows that, although each request for admission went to

proof of the ultimate questions of Ferguson’s liability to Bernal for Rodriguez’s

wrongful death or of Ferguson’s guilt in the criminal case, the trial court issued a

                                        11
blanket order, without exception or explanation, denying Ferguson the privilege

against self-incrimination and granting each of Bernal’s demands that Ferguson be

forced to answer his requests that she admit the elements of his suit and the crimes

with which she is charged. The ramifications of requiring Ferguson to answer

Bernal’s questions without the protection of the privilege are apparent. Bernal is

plainly asking Ferguson to subject herself to criminal responsibility and is seeking

to deny her the privilege against self-incrimination in response to requests for

admission that go directly to proof of the elements of Bernal’s wrongful death suit

and to proof of the criminal charges outstanding against her. See Speer, 965

S.W.2d at 45.

      I would hold that the trial court’s order denying Ferguson the privilege

against self-incrimination and requiring her to answer Bernal’s requests for

admission is so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law. See Walker, 827 S.W.2d at 839. Therefore, I would hold that the trial

court clearly abused its discretion in ordering Ferguson to answer Bernal’s requests

for admission. See id.

      Bernal argues, however, that federal and state constitutional law is

“superseded by Texas Rule of Civil Procedure 198.3 with regard to requests for

admissions.”    Thus, he argues, while federal courts have allowed the Fifth

Amendment privilege to be invoked in response to requests for admissions, Texas

                                        12
courts have not allowed invocation of the privilege because, under the wording of

Rule 198.3, their responses cannot be used in “any other proceeding.”

Specifically, he argues that, regarding requests for admissions, the Texas Rules of

Civil Procedure provide that “[a]ny admission made by a party under this rule may

be used solely in the pending action and not in any other proceeding.” TEX. R. CIV.

P. 198.3; cf. FED. R. CIV. P. 36(b) (“An admission under this rule is not an

admission for any other purpose and cannot be used against the party in any other

proceeding.”). As support for his argument, Bernal cites to Speer and Katin v. City

of Lubbock, 655 S.W.2d 360 (Tex. App.—Amarillo 1983, writ ref’d n.r.e.).

Bernal’s argument, in my view, is without merit.

      First, it is well established in Texas law that, “[w]here the parties have not

argued that there are any material differences between the state and federal

versions of a constitutional provision, we typically treat the two clauses as

congruent.” City of Dallas v. VSC, LLC, 347 S.W.3d 231, 234 n.3 (Tex. 2011); see

also Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004)

(stating that, in applying provisions of state and federal constitutions that are not

significantly different, Texas courts “look to federal jurisprudence for guidance”).

Here, Texas courts have historically cited to both state and federal law in applying

both the Fifth Amendment to the United States Constitution and the parallel

provision in the Texas Constitution, article 1, section 10. Lowe, 151 S.W.3d at 745

                                         13
(stating that both United States and Texas Constitution “guarantee a person may

not be compelled to testify or give evidence against himself”) (citing Maness, 419

U.S. at 464, 95 S. Ct. at 594); see Butler, 522 S.W.2d at 198.

      Second, Bernal’s construction of Katin and Speer is not supported by a

reasonable reading of either case. In Katin, the defendant business owner, Katin,

was permanently enjoined from maintaining a portable sign on his business

premises in violation of a city zoning ordinance. 655 S.W.2d at 361. Katin

answered interrogatories, but he refused to answer requests for admissions of fact

on the basis of his Fifth Amendment privilege, arguing that a violation of a zoning

ordinance can also be punished by criminal sanctions. Id. at 362. The court

observed,

      Because the rule language [in former Texas Rule of Civil Procedure
      169, precursor to current Rule 198.1] prevents the requested
      admissions, if made, from being used against the answerer in any
      other proceeding, the Federal courts have held that the claim of a
      privilege against self-incrimination is unavailing as a reason to refuse
      to answer a request of admissions of act in a civil injunctive
      action . . . or in an action that involves only civil sanctions imposed as
      deterrents rather than punishment.

Id. at 363 (citing Sec. & Exch. Comm’n v. MacElvain, 417 F.2d 1134, 1137–38

(5th Cir. 1969)). The court held that Katin’s claim of a Fifth Amendment privilege

against self-incrimination was “unavailing as the reason to refuse to either admit or

deny the Rule 169 request for admissions of fact in this civil injunctive action



                                         14
involving only civil sanctions, because his admissions, if made, could not be used

against him in any other proceeding.” Id. (emphasis added).

      Katin supports the premise that the privilege against self-incrimination in the

civil context is not available to protect a party against discovery necessary to the

development of the opposing party’s case when the only penalties faced by the

party asserting the privilege are a civil injunction and fine, not criminal penalties,

and when any answer to the discovery request cannot be used “as a confirmation

that facilitates preparation of the criminal case, or perhaps as a lead to other

evidence” in any criminal action.      See Gordon, 427 F.2d at 581.        Thus, the

privilege against self-incrimination is unavailable as protection against answering

requests for admissions in a civil case where the answer cannot reasonably be

interpreted as tending to subject the person asserting the privilege to criminal

responsibility under the totality of the circumstances. See Denton, 897 S.W.2d at

760. Because the only penalties faced by Katin were civil, and he demonstrated no

reasonable expectation that his answers would subject him to criminal prosecution,

the privilege was unavailable. Katin is, therefore, inapplicable to this case, where

the admissions the trial court ordered Ferguson to answer go directly to proof of

the elements of both the civil action and the criminal charges pending against her.

      Nor can Speer reasonably be interpreted as supporting Bernal’s

interpretation of the law. In that case, the trial court found that Speer’s answering

                                         15
five interrogatories in a civil case without asserting the privilege against self-

incrimination did not waive his right to assert the privilege against self-

incrimination in response to other interrogatories to which he did object; nor did

Speer “waive his privilege against self-incrimination by denying the requests for

admissions” of fact made by the opposing party without asserting the privilege.

965 S.W.2d at 45–46. The court then stated that former Rule 169 “provides

protection to a party in Speer’s predicament. . . . Therefore, a party may not assert

the privilege against self-incrimination as a reason for refusing to answer requests

for admission.” Id. at 46 (citing Katin, 655 S.W.2d at 363). Despite the court’s

sweeping statement of the rule, it did not apply it in a sweeping manner, but merely

asserted that the fact that Speer had not asserted the privilege in responding to

requests for admission in “compliance with the law did not result in waiver of the

right to assert the privilege as to other requested discovery.” Id.

      Speer, like Katin, had shown no reasonable expectation that his answering

the requests for admission would reasonably subject him to criminal prosecution

under the totality of the circumstances in his particular case. The law regarding the

availability of the privilege had already been set out fully and accurately in the

Speer opinion without any indication that the privilege does not apply to requests

for admissions under any circumstances as a matter of law. See id. at 45–46.

Thus, Speer, like Katin cannot reasonably be read as holding that the privilege

                                          16
against self-incrimination does not apply to requests for admission regardless of

the circumstances. Moreover, if it did, it would conflict with federal law as set out

in Moreno and Gordon, both of which must be viewed as persuasive, with the

United States Supreme Court cases cited above, and with Denton.

      I would hold that Katin and Speer both stand for the proposition that the

Fifth Amendment privilege against self-incrimination is available in a civil action

where the trial court’s careful examination of the totality of the circumstances

demonstrates that the party invoking the privilege has not waived the privilege by

offensive use or that the party is invoking the privilege because the party

reasonably fears the answer would tend to incriminate him or would facilitate the

preparation of a criminal case, or would perhaps lead to other evidence in any

criminal action. See Gordon, 427 F.2d at 581.

      This construction is supported by other Texas court of appeals cases

construing the privilege as inapplicable only when it is not invoked in good faith,

or to protect against a reasonable fear of self-incrimination, but to prevent

discovery necessary to the development of the opposing party’s case. See Denton,

897 S.W.2d at 760; Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 195–96 (Tex.

App.—Houston [14th Dist.] 1996, writ denied) (upholding sanctions against

plaintiff who used privilege against criminal activity offensively to refuse to

answer request for admission concerning “other criminal activity” where assertion

                                         17
of privilege would “deny appellees information crucial to their defense”); Stewart

v. Frazier, 461 S.W.2d 484, 486 (Tex. Civ. App.—Dallas 1970, no writ) (holding

that trial court properly deemed defendant’s responses to requests for admission

“admitted” because defendant’s “real purpose in refusing to answer the request for

admissions was, not to prevent being a witness against himself in a criminal

prosecution, but to hinder [the plaintiff] in this common law damage suit from

proving an essential element in his case”).

      The construction of Katin and Speer that Bernal urges—namely that the

Fifth Amendment privilege against self-incrimination does not apply to requests

for admission in a civil suit because, under Rule 198.3, the answers cannot be used

in any other proceeding—is contrary to established law and leads to absurd

consequences. Here, the trial court’s blanket order denying the Fifth Amendment

privilege to Ferguson—even in response to Bernal’s requests that she admit each

of the elements of guilt in the criminal charges brought against her and each of the

elements of liability in his wrongful death suit—can be sustained only by a reading

of Katin and Speer that is unreasonable in the context of those cases themselves, is

contrary to established federal and Texas Supreme Court law, and has the absurd

consequence of rendering the federal and state constitutional privilege against self-

incrimination unavailable as a matter of law in response to requests for admission

in a civil suit brought in Texas state court. Thus, I would hold that the trial court’s

                                          18
blanket order denying the privilege is arbitrary and unreasonable and, therefore, a

clear abuse of the court’s discretion. See Walker, 827 S.W.2d at 839 (holding that

trial court clearly abuses its discretion if it reaches decision so arbitrary and

unreasonable as to amount to clear and prejudicial error of law).

                                    Conclusion

      I would grant the petition for writ of mandamus and would direct the trial

court to vacate its order. I would issue the writ only if the trial court failed to do

so.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Chief Justice Radack, concurring in result only.

Justice Keyes, dissenting.




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