104 Wash. App. 338 | Wash. Ct. App. | 2000
Whether to stay civil proceedings to protect a party’s Fifth Amendment rights when parallel criminal proceedings are pending is a matter within the sound discretion of the trial court. No previous Washington decision has set forth the competing interests to be balanced in making such determinations. Having done so, we remand for rehearing. We also address an alternative request for a protective order under CR 26(c).
FACTS
Olympic Pipeline Company (Olympic) operates a buried pipeline through which flows gasoline, diesel fuel, and jet fuel. On June 10, 1999, the pipeline ruptured, spilling thousands of gallons of gasoline into Whatcom Creek in Bellingham. Wade King and Stephen Tsiorvas, both 10 years old, were playing near the creek, and a young man was fishing nearby. The gas ignited. The disaster took the lives of the boys and the young fisherman, and left a swath of destruction along the creek.
The family of Wade King (King) brought this wrongful death action against Olympic, two other pipeline companies, and three individuals. The individual defendants (Petitioners) are Fred Crognale, Olympic’s president at the time of the explosion; Frank Hopf, Olympic’s vice president and general manager; and Ron Brentson, Olympic’s supervisor of product movement.
Investigations into the cause of the tragedy began imme
The criminal investigations have focused in part on Petitioners. For example, within weeks of the disaster, an assistant U.S. attorney questioned Brentson’s former wife about any statements Brentson had made to her concerning the incident. In July 1999, Brentson’s personnel files and other documents were subpoenaed and later produced to a federal grand jury. By November 1999, numerous grand jury subpoenas had been served upon individuals believed to have knowledge regarding the incident and the operation of the pipeline. Immunity from federal prosecution was offered to and accepted by some Olympic employees in exchange for their testimony before the grand jury. Brentson supervised at least one of those employees. In December 1999, federal investigators served a search warrant and seized the section of pipe involved in the incident.
Meanwhile, this civil suit was pending. In February 2000, Petitioners moved for a limited, partial stay of discovery directed to them until December 1, 2000, the anticipated date of completion of the federal investigations. They sought a stay to preserve both the right to invoke the Fifth Amendment privilege, and the right to defend fully in the civil case. The trial court denied the motion.
The next day, the U.S. Department of Justice notified counsel for two Petitioners that the government was continuing its investigations, but was “not yet ready to resolve the issue of criminal liability with respect to their clients.” The letters stated that the government planned to seek a court order to allow destructive testing of the pipe to determine the cause of the rupture, and continued, “Please inform us by close of business, February 14, 2000, if you will
The federal district judge framed the issue as “whether the proposed testing may go forward consistent with the rights of potential defendants charged as a result of the grand jury investigation.” In its order authorizing partial destructive testing, the district judge stated, “the United States Attorney sought this order so that potential defendants could raise any due process concerns they might have regarding the possible destruction of evidence during testing.” The district judge acknowledged the circumstances were out of the ordinary: “In this unusual proceeding, the Court has considered the submissions of many potential defendants who are not ‘parties’ in the traditional sense because they have not been and may never be indicted.”
On the strength of these developments, Petitioners renewed their motion for a temporary stay of discovery directed to them from May until September 15, 2000, at which point they believed the status of the federal investigations would have clarified.
DISCUSSION
A. Standard of Review
A court’s determination on a motion to stay proceedings or grant a protective order is discretionary, and is reviewed only for abuse of discretion.
While no Washington court has previously addressed the issue of a stay to protect Fifth Amendment rights when parallel civil and criminal proceedings are pending,
Before we begin, we make three observations. First, mindful as we are that no previous Washington case has addressed this issue, we intend our discussion to have general application to requests for stays in the context of parallel proceedings. Second, our comments regarding the particulars of this case are intended to illuminate the factors for general application and to guide the court below on rehearing, not to suggest a result. Finally, we note that most of the federal cases we have reviewed discuss the balancing of interests in the context of a request to stay the entire civil proceeding or all discovery.
The court has inherent power to stay its proceedings where the interest of justice so requires.
[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.[14 ]
Petitioners requested a temporary stay, but only of discovery
Petitioners thus argue that under the circumstances presented here, the trial court abused its discretion in denying their motion for a temporary, limited stay. They assert that the court failed to conduct a proper balancing of all the necessary interests, and that to the extent the court balanced competing interests, errors of law tainted the analysis.
1. The Fifth Amendment Privilege—Parallel Proceedings
While courts are empowered to compel witnesses to testify, the Fifth Amendment privilege stands in opposition to that power
The mere pendency of related civil and criminal proceedings does not prevent the civil proceedings from going forward. “The Constitution . . . does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.”
On the one hand, a parallel civil proceeding can vitiate the protections afforded the accused in the criminal proceeding if the prosecutor can use information obtained from him through civil discovery or testimony elicited in the civil litigation .... On the other hand, the pendency of a parallel criminal proceeding can impede the search for truth in the civil proceeding if the accused resists disclosure and asserts his privilege against self-incrimination and thereby conceals important evidence.[23 ]
In the face of this dilemma, “a court may decide in its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions ‘when the interests of justice seem[] to require such action.’ ”
2. Criteria for Stay in Parallel Proceedings
In considering a stay request, federal courts begin by considering the extent to which a defendant’s
• similarities between the civil and criminal cases;
• status of the criminal case;
• the interest of the plaintiffs in proceeding expeditiously with litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay;
• the burden which any particular aspect of the proceedings may impose on defendants;
• the convenience of the court in the management of its cases, and the efficient use of judicial resources;
• the interests of persons not parties to the civil litigation; and
• the interest of the public in the pending civil and criminal litigation.
This balancing process presents “a complex area of jurisprudence,” in which “[a] wide array of options are available to courts in performing this balancing.”
a. Implication of the Fifth Amendment Privilege
The extent to which a party’s right against self-incrimination is implicated in civil proceedings must be given “serious consideration” in the balancing of interests.
The absence of an indictment may sometimes make potential criminal exposure merely speculative, but here, even the federal district judge and the U.S. Attorney regard Crognale, Hopf, and Brentson as potential defendants in the criminal matters now under grand jury investigation. There seems to be no serious dispute that they are in genuine jeopardy of criminal liability under federal environmental laws.
The absence of an indictment is not without consequences. For one thing, it makes more difficult the analysis of the potential criminal jeopardy. Petitioners do not advise us of the specific sections of federal law upon which they predicate their assertion of exposure to criminal liability. While the jeopardy appears real, its scope is difficult to discern on this record. Petitioners have indicated the U.S. Attorney expects the grand jury to conclude its work shortly. At that point, a clearer picture should emerge of the extent to which Petitioners’ Fifth Amendment privileges are truly implicated. (Such an understanding will also be
For their part, Petitioners argue that the trial court’s analysis of the Fifth Amendment implications was tainted by an error of law, because the court twice expressed its belief that it could instruct the civil jury not to draw an inference from the invocation of the Fifth Amendment privilege. A ruling based on an error of law constitutes an abuse of discretion.
The trial court did not definitively rule on whether it would prohibit the jury from drawing an adverse inference, but appeared to believe it could do so:
His [King’s] Hobson’s Choice is if he takes a deposition and all he gets is an invocation of Fifth Amendment privileges, if this court rules there’s not to be an inference drawn from that, he has nothing to prepare his case for. So you both have got Hobson’s Choices here and I’ve got to try to balance which Hobson’s Choice or consider which Hobson’s Choice is better than the other, I guess. I don’t know.[36 ]
In this, the court erred. In Ikeda v. Curtis,
In this regard, King objects that the adverse inference is not itself a factor to be balanced, but rather is the reason for the balancing test. King is correct that the concern about invocation of the Fifth Amendment privilege in most civil cases stems from this inference, because it impairs the right of the invoking party to defend the civil claims; the caution required in the face of criminal charges may leave civil defendants unable to offer truthful testimony that would assist in defense of the civil claims. But the fact that these difficulties are an underlying reason for the balancing test is no answer to the requirement that the court must be accurate in its evaluation of available remedies.
Finally, it appears the court denied the motion for a stay in part because Petitioners made no promise to waive their rights under the Fifth Amendment: “Counsel has
b. Similarities Between Civil and Criminal Cases
One of the most important factors in the balancing process is “the degree to which the civil issues overlap with the criminal issues,”
In some cases, a court facing a stay request will be required to analyze and compare the elements of the civil and criminal actions to establish the extent of the overlap. Here, so far as we can discern, the conduct alleged in the civil complaint is the same as that which is under investigation by the grand jury. The civil complaint alleges strict liability, negligence, and wilful misconduct. The federal Clean Water Act, which Petitioners cite as one source
Further, the federal district judge supervising the grand jury and the U.S. Attorney regard Petitioners as potential defendants,
c. Status of the Criminal Case
Another factor in considering a stay request is the status of the criminal case, particularly whether the defendants have been indicted.
King’s suggestion that we adopt a bright-line rule conditioning a stay upon the presence of an indictment is contrary to both law
Again, however, the absence of an indictment may have a relevant consequence. The status of the criminal case includes the likely speed of its resolution. Where there is not yet a formal charge, resolution of the criminal matter may be so remote it should not be awaited. On the other hand, if the resolution of criminal proceedings is close at hand, the detriments of a stay are counterbalanced by the prospect of a speedy criminal trial, and by the potential res judicata or collateral estoppel effects of resolution of common issues.
d. Plaintiffs’ Interests and Potential Prejudice
Civil plaintiffs have a substantial interest in expeditious conduct of their litigation. That interest, and any potential prejudice from delay, must be carefully considered.
Whether delay is always prejudicial is not necessarily clear. As Judge Pollack noted in Parallel Proceedings, where there is substantial overlap, the criminal proceeding may actually benefit the civil proceeding by producing a result that completely resolves the civil liability issues— although the reverse is not true.
The delay factor is difficult to evaluate here. Where the requested stay applies only to certain defendants and only to discovery directed to them, the possibility of lost witnesses disappears, and the problem of faded memories is confined to those who would be asserting the Fifth Amendment privilege to some (perhaps many) questions.
The trial court considered the potential prejudice to King resulting from delay, stating:
The discovery being sought is of the key individuals who would be the closest to having knowledge that may be relevant*361 or helpful in determining the cause of the incident that happened, the explosion that happened. And the passage of five years, this court thinks, would operate to simply make memories fade and the ability to obtain information much more difficult and a witness may very well not have a recollection. The documents I understand are being provided but documents don’t fill in, oftentimes, the necessary facts that a party needs for the presentation of a case.
The court’s consideration of this factor is clearly proper, but the court appears to have assumed that a stay would delay all discovery for five years.
In addition, it is not clear what importance Petitioners’ testimony actually has to the resolution of King’s claims. The amended complaint seeks damages under RCW 90.56.370, which provides for strict liability for all damages resulting from unlawful discharge of petroleum products into state waters. It seems unlikely that the unlawfulness of the spill is disputed, but, if so, it is not clear why Petitioners’ testimony is necessary to resolve the question. The importance of the discovery sought to be stayed is thus not clear on this record. By the same token, the prejudicial effect of delay of that discovery is not clear.
King asserts that consideration of prejudice to plaintiffs from delay “should involve additional constitutional emphasis,” and that a stay would deny them their “constitutional right to discovery and trial without delay,” relying upon Doe v. Puget Sound Blood Center.
The discovery rules contemplate conflicts between one party’s rights in the discovery process and other rights or interests, and the rules expressly grant courts discretion to balance these interests and limit conflicts.
Kang’s right under article I, section 10 is a right to justice without unnecessary delay. Each side’s right in the civil litigation has equivalent constitutional foundation. “The right of a citizen to defend ... in a court is corollary to the plaintiffs right to sue there.”
To the extent King posits that the right under article I, section 10 is superior to the right to be free from self-incrimination, King offers no authority to support such a proposition, and we reject it.
e. The Burdens on the Party Asserting the Privilege
In addition to considering the implications of the Fifth Amendment privilege, courts consider “the burden which any particular aspect of the proceedings may impose
The concern about discovery derives from the fact that the scope of civil discovery is far more broad than that allowed in criminal cases.
Petitioners assert that discovery burdens their Fifth Amendment rights because the very invocation of the privilege may constitute a “road map” for prosecutors, and form exactly the “link in the chain” of evidence needed to prosecute them that they cannot be constitutionally required to provide.
A third possible burden may come from pretrial publicity, which may weigh either for or against a stay. In Keating, the court held that in light of the “inordinate amount” of media attention, any delay would have been detrimental to public confidence in the Office of Thrift Supervision.
*365 Governmental entities are frequently aware of the need to reassure the public that they are taking prompt action in response to a crisis. In such high visibility situations, it is especially necessary to guard the rights of defendants, and concern for the public deterrence value of an enforcement proceeding must not be allowed to override the individual defendant’s due process rights.[74 ]
We agree with the Keating court’s concern, which applies equally to high profile private actions. Here, however, Petitioners do not point to publicity except to emphasize that their every assertion of the Fifth Amendment privilege will be front page news. Whether this constitutes a burden is for the trial court to decide.
f. Convenience and Efficiency of the Court
The sixth factor is the “convenience of the court in the management of its cases, and the efficient use of judicial resources.”
Here, this factor appeared not to have influenced the court’s decision. Whether a stay would reduce the court’s workload or ultimately reduce the resources necessary to
g. Interests of Non-parties to Civil Litigation
Interests of persons not parties to the civil litigation tend to be discussed infrequently. The Golden Quality court gave the interests of nonparty witnesses “real weight” in favor of staying civil discovery, because such persons face the severe dilemma of serious criminal penalties while having no interest in the civil litigation.
This factor is not directly implicated here.
h. Public Interest in Civil and Criminal Litigation
Senior Judge Milton Pollack of the Southern District of New York referred to the effect of a stay of a civil case upon the public interest as “perhaps the most important factor in the equation, albeit the hardest to define.”
On the other hand, where there was no indication of potential irreparable injury to pension plan beneficiaries, “Possible mismanagement of a pension fund simply does not present the same danger to the public interest as violations that other courts have found to warrant denial of a motion for a stay.”
This is not to suggest that the high degree of public and media attention to this litigation is misplaced. What is learned in this case may indeed shed light upon the cause of the tragedy, and even upon the means for prevention of future disasters; its outcome will certainly affect the response of the community to the tragedy. It is natural that the community views this litigation as one of the centerpieces in the aftermath of the disaster, and that the plaintiffs themselves view the public welfare as a principal objective.
Even where the action is purely private, however, there is a second public interest involved: the public interest in the integrity of the judicial system.
Conclusion—Stay
The trial court’s consideration of these factors was affected by certain legal errors and misimpressions, and was
For these reasons, and because the trial court did not have the benefit of a Washington decision adopting and discussing these factors, we remand to provide the court an opportunity to exercise its discretion in light of this opinion.
C. Cr 26 Protective Order
In the absence of a stay, Petitioners sought a protective order prohibiting disclosure of their responses to discovery to any person not a party to the litigation. Under Civil Rule 26, a court may, for good cause shown, “make any order which justice requires to protect a party or person from . . . undue burden . . ., including ... (1) that discovery not be had;... (4) that certain matters not be inquired into . . . ; (6) that the contents of a deposition not he disclosed. . . .”
Restrictions on disclosure of discovery information have been sustained by the United States Supreme Court. In Seattle Times Co. v. Rhinehart,
Moreover, pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law and, in general, they are conducted in private as a matter of modern practice. . . . [R] estraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.[96 ]
The Court held that a litigant’s First Amendment right to disseminate information obtained in discovery was a limited interest that could legitimately be curtailed altogether by a protection order issued for good cause.
We find instructive our own Supreme Court’s decision in Rhinehart, discussing the need for protective orders to preserve privacy interests:
[B]y requiring a party to submit to the searching inquiries of discovery, the courts have required him to give information about himself which he would otherwise have no obligation to disclose. A realm of privacy which courts had previously left undisturbed was now opened. True, as to all information derived through these proceedings and admitted at trial, a party’s interest in privacy must be sacrificed to the needs of adjudication. But as to other information which he is forced to give under the liberal rules of discovery, the effective administration of justice does not require dissemination beyond that which is needed for litigation of the case. It was the needs of litigation and only those needs for which the courts adopted this rule and demanded of the litigant a duty which would not otherwise be his. For this reason, it is proper that the courts be slow to subject a civil litigant to any exposure which he deems offensive, beyond that which serves the purpose of the rule.[98 ]
The Bellingham Herald, as intervenor, reminds us that the court’s record of proceedings in a civil case is ordinarily public, and that absent a court order, a litigant is free to disseminate information gained in pretrial discovery.
Petitioners contend the trial court erroneously believed it lacked authority to prohibit disclosure of the contents of a deposition before the deposition was filed with the court. The record does not support this assertion. While there was considerable discussion about Petitioners’ request that the court “seal” the depositions, and the court said it could not do so before they were filed with the court, the debate was largely semantic. Petitioners ultimately clarified to the trial court what they were really seeking: an order preventing disclosure to nonparties. The court understood the request, weighed the competing interests, and denied the motion.
Petitioners’ purpose in seeking the protection order is the same as that underlying the request for a stay: to conceal invocation of the privilege, thereby shielding from the government those areas of questioning where they feel their defense may be most vulnerable.
King responds that Petitioners’ concerns are entirely speculative, and rest on the dubious hypothesis that federal prosecutors have overlooked whole areas of inquiry despite the enormous resources the government has devoted to investigating the causes of the pipeline rupture and resulting fire. Here, as in the context of the stay analysis, this question is for the trial judge to determine.
King also argues that a protective order for this purpose “undercuts the very essence and purpose underlying the protective orders,” which King describes as “encouraging full disclosure of all relevant facts.” It is certainly true that most protection orders in parallel proceedings are apparently so-called “quid-pro-quo” orders, in which a party answers incriminating questions under the protection of a court order prohibiting disclosure beyond the boundaries of the litigation.
We cannot embrace King’s narrow description of the objective of protective orders. As the U.S. Supreme Court observed in Rhinehart, modern civil discovery rules require litigants to divulge a wide range of otherwise private information, and authorize courts to protect against harmful side effects of such disclosures, including the effect of public dissemination of the information.
The Bellingham Herald asserts that prejudice to the public would result from such a confidentiality order, because the public, including the press, has a right “to openly administered justice” under article I, section 10 of the state constitution.
We observe again that the article I, section 10 right of access is recognized and implemented by the discovery rules, and thus is subject to limitations authorized by those rules,
The Bellingham Herald asserts the public’s concern with the administration of justice “is especially strong in a case like this, where the civil lawsuit involves a matter of intense public interest.” There is no question that the public’s concern here is especially strong, and the trial court may choose to take it into account in the balancing, because of the court’s own concern for public trust and confidence in the judicial process.
In considering Petitioners’ request for a protective order, the trial court acknowledged the validity and significance of Petitioners’ concerns about exposure to criminal liability, and indicated it “would not lightly trample upon or interfere with a person’s right to invoke their Fifth Amendment privilege.” The court apparently gave equal weight to a variety of other interests.
The court acknowledged the competing interests between a fair trial and freedom of speech, and concluded, “Unless there is a compelling interest to refuse to permit people to speak, a protective order is not appropriate.” This is not the correct test. The U.S. Supreme Court expressly refused to require that a compelling interest support a confidentiality order: “We think the [compelling interest requirement] would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process.”
The court also did not identify what prejudice King would suffer from a protective order, and we find it difficult to discern any. Under such an order, discovery would go forward. The only difference would be the extent to which its results are publicized at this stage of the litigation.
Finally, and perhaps most importantly, the court never determined the legitimacy of Petitioners’ objective. This court will not substitute its judgment as to that question, which depends in large part on facts and circumstances best evaluated by the trial court.
Conclusion—CR 26 Protective Order
When courts act on a request for a protective order to preserve a civil defendant’s Fifth Amendment privilege, an on-the-record balancing of the interests involved is essential. The court must determine whether the burden identified by the party seeking the order constitutes good
The discretion conferred by CR 26 affords the court many options in managing discovery. If King wishes to proceed swiftly with the discovery process, some approach to recognizing Petitioners’ Fifth Amendment rights must be arrived at. On the other hand, if King can usefully proceed with other discovery, a brief stay may clarify Petitioners’ status in the federal investigations, and may provide a significantly different framework for going forward. The protective order remedy can be used with some creativity, and can be utilized in preference to or following a stay. With issues as complex as these, discovery management decisions are likely to be revisited as new events or the passage of time changes the picture.
As a final matter, we observe that in granting a protective order to a nonparty witness while this review was pending, the trial court decided a matter pending on appeal in violation of RAP 7.2. We therefore vacated that order and stayed further discovery. It is of interest that the court found the order justified for apparently the same reasons advanced by Petitioners: to conceal invocation of the privilege.
CONCLUSION
We remand for further proceedings consistent with this opinion. The stay of discovery previously entered is hereby lifted.
Agid, C.J., and Coleman, J., concur.
After modification, further reconsideration denied February 14, 2001.
Review denied at 143 Wn.2d 1012 (2001).
The supervisor of product movement supervises the “operations controllers” who control the remote operations of movement of the product through the pipeline.
According to counsel for Brentson, it is clear that his client is a “principal target” of the federal government’s ongoing investigation, as evidenced by the “unprecedented” act of a federal prosecutor
providing notice to an uncharged defendant that scientific testing was to take place and that the uncharged defendant’s views on the matter were being solicited prior to and in response to a motion being filed and an Order of the Court being sought. The only reason a prosecutor would engage in this unusual procedure of bringing a nonparty before the Court, would be if the prosecutor had plans to file charges against that presently uncharged individual.
Decl. of Laurence B. Finegold ¶ 11 (May 18, 2000). Counsel for Hopf expressed similar beliefs about the likelihood of indictment of his client.
No such clarification appears to have emerged to date.
Depositions were scheduled for June 2000.
Said stay is hereby lifted.
State v. Music, 79 Wn.2d 699, 716, 489 P.2d 159 (1971), judgment vacated in-part by 408 U.S. 940 (1972) (stay); Marine Power & Equip. Co. v. Dep’t of Transp., 107 Wn.2d 872, 875, 734 P.2d 480 (1987) (protective order).
State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 778, 819 P.2d 370 (1991).
Division Three of this court has, however, considered a related issue. In rejecting a due process challenge to the timeliness of a civil forfeiture proceeding, Division Three considered the Fifth Amendment privilege an additional reason justifying delay:
Delaying the civil proceedings until after the criminal matters are resolved avoids schedule conflicts. Moreover, allowing delays recognizes certain practical realities extant when civil drug forfeitures are invoked concurrently with criminal drug prosecutions. Rather than jeopardizing a claimant/defendant’s Fifth Amendment right against self-incrimination, permitting delay of forfeiture proceedings until the conclusion of criminal prosecutions strikes a reasonable balance favoring an individual’s liberty interests over his or her property interests.
Escamilla v. Tri-City Metro Drug Task Force, 100 Wn. App. 742, 750, 999 P.2d 625 (2000).
See, e.g., Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir.), cert. denied, 516 U.S. 827 (1995); Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899 (9th Cir. 1989); Afro-Lecon, Inc. v. United States, 820 F.2d 1198 (Fed. Cir. 1987); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D. Pa. 1980).
Molinaro, 889 F.2d at 902-03.
We have located two cases discussing partial discovery stays. In Paine, Webber, Jackson & Curtis Inc. v. Malon S. Andrus, Inc., 486 F. Supp. 1118, 1119 (S.D.N.Y. 1980), the federal district court regarded the limited nature of the request as a disincentive to stay proceedings because of the court’s belief that interim discovery would not bind the defendants as to whom the stay pertained. The precise nature of the request in Paine is unclear, but this concern does not exist here, since Petitioners specifically propose that discovery continue and seek to avoid only making their own responses. In Golden Quality, 87 F.R.D. at 58-59, the district court denied a complete stay of proceedings but sua sponte granted a partial limited stay.
Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936); see also Lloyd v. Superior Court, 42 Wn.2d 908, 909, 259 P.2d 369 (1953).
Landis, 299 U.S. at 254-55 (citations omitted).
Because the stay request relates only to discovery, the court’s powers under CR 26 are also implicated. Under that rule, a court may, for good cause shown, “make any order which justice requires to protect a party or person from. . . undue burden . . ., including ... (1) that the discovery not be had[.]” CR 26(c). We believe the better approach in considering a discovery stay request founded on Fifth Amendment concerns in parallel proceedings is to utilize the factors regarding stays, because they provide the court with guidance specific to the Fifth Amendment context. The court can easily take into account the fact that the requested stay is limited in scope. The parties here have briefed the issue on the premise that the stay factors apply, and the trial court so considered it.
Ikeda v. Curtis, 43 Wn.2d 449, 458, 261 P.2d 684 (1953); Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976).
State v. Parker, 79 Wn.2d 326, 331, 485 P.2d 60 (1971).
U.S. Const, amend. V. The Fifth Amendment was made applicable to the states through the Fourteenth Amendment to the U.S. Constitution. State v. King, 130 Wn.2d 517, 523, 925 P.2d 606 (1996).
Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).
King, 130 Wn.2d at 523-24 (citing Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973)). “There is no blanket Fifth Amendment right to refuse to answer questions based on an assertion that any and all questions might tend to be incriminatory. The privilege must be claimed as to each question
Hoffman, 341 U.S. at 486.
Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir.) (en banc), cer. denied, 449 U.S. 993 (1980); see also United States v. Kordel, 397 U.S. 1, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970) (simultaneous civil and related criminal proceedings do not constitute unfairness and want of consideration for justice so as to require reversal of a criminal conviction).
Parallel Civil & Criminal Proceedings, 129 F.R.D. 201,202 (1990) (Pollack, J.) (hereinafter, “Parallel Proceedings”).
Dresser, 628 F.2d at 1375 (quoting Kordel, 397 U.S. at 12 n.27) (alteration in original).
In most cases, as here, the party asserting the privilege is a defendant. We do not address what differences may arise where the party asserting the privilege is a plaintiff, but we note that the Fifth and Federal Circuits have held no
Keating, 45 F.3d at 324-25; Trs. of Plumbers & Pipefitters Nat’l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995).
State ex rel. Wright v. Stucky, 205 W. Va. 171, 517 S.E.2d 36, 41 n.7 (1999).
Molinaro, 889 F.2d at 902.
White v. Mapco Gas Prods., Inc., 116 F.R.D. 498, 502 (E.D. Ark. 1987); Brock v. Tolkow, 109 F.R.D. 116, 120 (E.D.N.Y. 1985).
Keating, 45 F.3d at 326.
889 F.2d 899 (9th Cir. 1989).
Molinaro, 889 F.2d at 903.
The parties dispute whether one or more of the Petitioners have waived the privilege. This matter remains for resolution by the trial court.
The procedure for ruling on the propriety of an invocation of a Fifth Amendment privilege is ordinarily an in camera proceeding on a closed record. See Seventh Elect Church v. Rogers, 34 Wn. App. 105, 114-15, 660 P.2d 280 (1983); Eastham, 28 Wn. App. at 533-34.
Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
When the court denied the Petitioners’ first motion for a stay of discovery, the court stated:
This court is not ruling in any way as to whatever inferences, if any, may or may not be permitted by the answers. But I’m without sufficient facts to satisfy me at this point in time without specific questions and without the invocation of the rights to know that it’s even going to be an issue at this point. Counsel has indicated it will be. We’ll have to take that as it comes.
Again, I’m not ruling on what inferences may or may not be permitted from this. That’s a matter for future hearing and a future decision.
43 Wn.2d 449, 261 P.2d 684 (1953).
Ikeda, 43 Wn.2d at 458; see also Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify ...8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2018, at 290-93 (1994).
For a discussion of this issue generally, see Robert Heidt, The Conjurer’s Circle—The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062 (1982). The parties do not brief this issue, and we do not decide it.
Parallel Proceedings, 129 F.R.D. at 203. For some reason, this factor is not included in the Ninth Circuit’s analysis. See Keating, 45 F.3d at 324-25; Molinaro, 889 F.2d at 903.
Trs. of Plumbers & Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y 1995) (comparing civil complaint and criminal indictment to determine if wrongful conduct alleged is the same); Volmar Distribs., Inc. v. N.Y. Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993).
United States v. Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 811 F. Supp. 802, 806 (E.D.N.Y. 1992).
At oral argument, counsel for petitioners also cited potential criminal charges under unspecified federal environmental laws for “conduct knowing of a likelihood of harm to another.”
See 33 U.S.C. § 1319(c); United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999) (operator of backhoe ruptured pipeline; Clean Water Act is public welfare statute and imposes criminal liability for ordinary negligence).
Petitioners argue that the trial court abused its discretion in denying their second request for a stay by failing to consider new evidence of the status of criminal proceedings—in particular, the several references to them as potential defendants. We reject this contention. The court did not fail or refuse to consider the new information. The mere fact that the court said, in essence, that the new evidence changed nothing, does not establish an abuse of discretion.
The family of the second of the 10-year-old victims, Stephen Tsiorvas, also filed a substantially identical wrongful death action. Dahlen v. Olympic Pipe Line Co., No. 99-2-01468-1 (Whatcom County Super. Ct. Dec. 8, 1999). The parties are represented by the same counsel, and have stipulated that orders entered by this court will apply to both cases.
See, e.g., Trs. of Plumbers, 886 F. Supp. at 1139-40; Parallel Proceedings, 129 F.R.D. at 205.
Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1375-76 (D.C. Cir. 1980). See also Molinaro, 889 F.2d at 903; United States v. Private Sanitation Indus. Ass’n of Nassau /Suffolk, Inc., 811 F. Supp. 802 (E.D.N.Y. 1992).
Seventh Elect Church v. Rogers, 34 Wn. App. 96, 100, 660 P.2d 294 (1983) (quoting Zicarelli v. N.J. Comm’n of Investigation, 406 U.S. 472, 478, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972)).
State v. Parker, 79 Wn.2d 326, 332, 485 P.2d 60 (1971).
See, e.g., Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986); United States v. 1344 Ridge Rd., 751 F. Supp. 1060, 1063 (E.D.N.Y. 1989); Brock v. Tolkow, 109 F.R.D. 116, 119-20 (E.D.N.Y. 1985).
See Parallel Proceedings, 129 F.R.D. at 203-04.
Molinaro, 889 F.2d at 902-03; see also Keating, 45 F.3d at 324-25.
See, e.g., Clinton v. Jones, 520 U.S. 681, 707-08, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997); Avant! Corp. v. Superior Court, 79 Cal. App. 4th 876, 94 Cal. Rptr. 2d 505, 512 (2000).
Parallel Civil & Criminal Proceedings, 129 F.R.D. 201, 204 (1990).
Volmar, 152 F.R.D. at 40 (citing Vardi Trading Co. v. Overseas Diamond Corp., 1987 U.S. Dist. LEXIS 8580, 1987 WL 17662 at *2 (S.D.N.Y. Sept. 23, 1987); 1344 Ridge Rd., 751 F. Supp. at 1063; Tolkow, 109 F.R.D. at 121; Dienstag v. Bronsen, 49 F.R.D. 327, 329 (S.D.N.Y. 1970)); see also White v. Mapco Gas Prods., Inc., 116 F.R.D. 498, 502 (E.D. Ark. 1987).
The parties advised the court, as they have advised us, that the statute of limitations for the criminal matters is five years.
117 Wn.2d 772, 819 P.2d 370 (1991).
Article I, section 10 of the state constitution provides: “Justice in all cases shall be administered openly, and without unnecessary delay.”
Doe, 117 Wn.2d at 783.
Doe, 117 Wn.2d at 782.
CR 26.
Degen v. United States, 517 U.S. 820, 828, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996).
Molinaro, 889 F.2d at 903 (quoting Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980)). Some courts consider the Fifth Amendment implications under this heading. See, e.g., White, 116 F.R.D. at 502.
See, e.g., Keating, 45 F.3d at 325; Golden Quality, 87 F.R.D. at 56; White, 116 F.R.D. at 502; Digital Equip. Corp. v. Currie Enters., 142 F.R.D. 8, 14 (D. Mass. 1991). Petitioners do not voice concern about a diversion of their resources, but we note that the burden of strained financial resources has been found not to outweigh other interests that favor proceeding expeditiously.
See, e.g., Golden Quality, 87 F.R.D. at 57; Digital, 142 F.R.D. at 14.
See Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203-04 (Fed. Cir. 1987). For example, a party to a civil action may depose all parties and any other person necessary to obtain testimony about the relevant subject matter. Afro-Lecon, 820 F.2d at 1203-04. But federal criminal rules permit depositions only in “exceptional circumstances” and “in the interests of justice.” Afro-Lecon, 820 F.2d at 1203; Fed. R. Crim. P. 15.
See, e.g., Gordon v. Fed. Deposit Ins. Corp., 427 F.2d 578, 580 (D.C. Cir. 1970); Golden Quality, 87 F.R.D. at 57.
Golden Quality, 87 F.R.D. at 57; see also Digital, 142 F.R.D. at 14.
See, e.g., Afro-Lecon, 820 F.2d at 1204 (quoting Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl. 1975)). See also United States v. LaSalle Nat’l Bank, 437
Afro-Lecon, 820 F.2d at 1203 (“The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one’s advantage in the criminal case.”).
The Federal Circuit recognized this danger, noting that given the broad scope of civil discovery, a party forced to refuse to answer individual questions is “revealing his weak points to the criminal prosecutor,” creating a “link in the chain” of evidence not available otherwise. The court noted that the questions themselves could form a ‘link in the chain” of evidence needed for prosecution, and therefore implicate the privilege. Afro-Lecon, 820 F.2d at 1203 (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)).
Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir.), cert. denied, 516 U.S. 827 (1995).
Keating, 45 F.3d at 326.
Molinaro, 889 F.2d at 903.
Golden Quality, 87 F.R.D. at 57 (factor weighs in favor of stay of private antitrust action).
See, e.g., Golden Quality, 87 F.R.D. at 57.
See White, 116 F.R.D. at 502; Golden Quality, 87 F.R.D. at 58; see also Avant! Corp. v. Superior Court, 79 Cal. App. 4th 876, 94 Cal. Rptr. 2d 505, 512 (2000).
Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 58 (E.D. Pa. 1980).
Golden Quality, 87 F.R.D. at 58-59; see also White, 116 F.R.D. at 503 (burden on nonparties is an “important factor in favor of staying civil discovery”).
We note that King asserts a stay would adversely affect the rights of third party defendant IMCO. We decline to consider this argument, since IMCO is a party and makes no such argument on its own behalf.
While this appeal was pending, the trial court granted a protective order to conceal the invocation of a nonparty witness’ Fifth Amendment privilege. We vacated that order, and stayed all discovery, pending this opinion. We address the protection order infra.
Parallel Proceedings, 129 F.R.D. at 205.
Brock v. Tolkow, 109 F.R.D. 116, 120 (E.D.N.Y. 1985).
United States v. Kordel, 397 U.S. 1, 11, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970).
Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1380 (D.C. Cir. 1980) (“For the SEC to stay its hand might well defeat its purpose.”).
Keating, 45 F.3d at 326.
Brock, 109 F.R.D. at 120.
United States v. 1344 Ridge Rd., 751 F. Supp. 1060 (E.D.N.Y. 1989); see also Golden Quality, 87 F.R.D. at 58 (“[T]he public interest in the vigorous prosecution of private antitrust claims must be less acute where, as here, the United States has decided to devote a part of its prosecutorial resources to bringing a criminal action.”).
In their first amended complaint for wrongful death, by way of relief, plaintiffs claim “the right to find out why their son . .. was wrongfully burned to death,. .. the right to require the defendants to answer questions under oath and to disclose all facts and knowledge of this occurrence,.. . the right to recover all remedial action costs to identify, eliminate or minimize any threat to human health or the environment” and the right to “injunctive relief to safeguard the public from further exposure to hazardous or toxic waste.. ..”
See Avant!, 94 Cal. Rptr. 2d at 513 (“Clearly, the public has a significant interest in a system that encourages individuals to come to court for the settlement of their disputes.”).
We are cognizant that the time needed for our review has accomplished almost the entirety of Petitioners’ original request, and emphasize that the court is fully entitled to recognize that fact on remand.
CR 26(c) (emphasis added).
467 U.S. 20, 36, 104 S. Ct. 2199, 81 L. Ed. 2d 17, cert. denied, 467 U.S. 1230 (1984).
Rhinehart, 467 U.S. at 32.
Rhinehart, 467 U.S. at 33 (citations omitted).
Rhinehart, 467 U.S. at 37.
Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 236, 654 P.2d 673 (1982), aff’d, 467 U.S. 20 (1984).
Marine Power & Equip. Co. v. Dep’t of Transp., 107 Wn.2d 872, 875, 734 P.2d 480 (1987) (citing Rhinehart, 467 U.S. at 36).
See San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1102-03 (9th Cir. 1999) (acknowledging right of prejudgment access to civil court documents grounded in federal common law and Fed. R. Civ. P. 26(c)); see also Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775, 780-81 (1st Cir. 1988), cert. denied, 488 U.S. 1030 (1989).
The question of whether court records can be sealed has been repeatedly addressed by our courts. See, e.g., Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993).
Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999).
See Afro-Lecon v. United States, 820 F.2d 1198, 1203 (Fed. Cir. 1987).
If so, the request is not premature; a protection order can hardly offer effective protection after the fact.
See, e.g., Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296-97 (2d Cir. 1979).
See Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 58 (E.D. Pa. 1980).
See In re Grand Jury Subpoena v. Janet Greeson’s A Place for Us, Inc., 62 F.3d 1222, 1227 (9th Cir. 1995). The federal circuits are split on this issue. Compare In re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir.) (adopting per se precedence of grand jury subpoena over protective order), cert. denied, 487 U.S. 1240 (1988) and In re Grand Jury Proceedings v. United States, 995 F.2d 1013 (11th Cir. 1993) (adopting Fourth Circuit’s per se rule) with In re Grand Jury Subpoena v. Doe, 945 F.2d 1221 (2d Cir. 1991) (rejecting per se supremacy of grand jury subpoena over protective order) with In re Grand Jury Subpoena, 138 F.3d 442 (1st Cir.) (adopting “modified per se rule”), cert. denied, 524 U.S. 939 (1998). Petitioners believe that principles of federalism require that a state court protective order prevail over a federal subpoena. No court has yet decided the issue.
Rhinehart, 467 U.S. at 35.
Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 209-10, 848 P.2d 1258 (1993).
See Allied Daily Newspapers, 121 Wn.2d at 210; Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37, 640 P.2d 716 (1982).
Doe, 117 Wn.2d at 780-81.
CR 26; Rhinehart, 467 U.S. at 37.
The public concern here is different from the public interest factor discussed in the context of a stay. There, the issue is delay, and its potential effect on the protection of the public welfare must be considered. Here, the question is whether to restrict dissemination of information that comes to light during the discovery process. Such a restriction in a protective order, if justified, could be either temporary or permanent. In the context of an order issued to protect Fifth Amendment concerns in parallel proceedings, the need for a restriction will likely often be only temporary.
The trial court stated: “But from the legal standpoint... this court is as concerned about the rights in civil litigation as well as the rights in criminal
Rhinehart, 467 U.S. at 31.
Rhinehart, 467 U.S. at 37.
The court was apparently concerned about embarrassment to the witness; there appears to have been no emphasis placed upon the risk emphasized by Petitioners (that prosecutors will learn to which questions the privilege was invoked).
See discussion supra part B, section 2, subsection g, at page 366.
