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King v. Olympic Pipe Line Co.12/26/2000
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 ten 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 immediately. The National Transportation Safety Board is charged with determining the cause of the fire. The Department of Transportation's Office of Pipeline Safety investigated and proposed a record $3.05 million fine for safety violations. The Environmental Protection Agency, the Federal Bureau of Investigation, and the U.S. Attorney are investigating potential criminal violations of the Clean Water Act and other environmental laws.
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 be opposing such a motion or if you have any other concerns about the testing proposed.' Petitioners responded to the letter and participated in the federal court proceeding.
The f
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