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King v. Olympic Pipe Line Co.12/26/2000
d cases:
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.
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.' Parallel proceedings may create concerns about calendar congestion and duplicative judicial effort; the 'mere possibility that a substantial amount of the court's work, if undertaken now, may shortly prove to have been unnecessary, cautions against undue haste in proceeding.' Simultaneous proceedings may particularly raise issues of judicial efficiency where they are conducted by different judges of the same court. Some judges find this factor weighs in favor of a stay because after the criminal matter is resolved and the Fifth Amendment issue gone, civil discovery will proceed more smoothly and efficiently.
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 resolve the civil case is unclear.
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 non- party 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. Partly for this reason, that court refused a request for a complete stay in a private anti-trust action, but allowed only limited discovery presenting no Fifth Amendment issues, and ordered proceedings suspended altogether 'as the time for the criminal trial draws near.'
This factor is not directly implicated here. It is obvious, however, that individuals who are not parties, but who may also be targets of the grand jury investigation, are important witnesses in this litigation. To avoid possibly contradictory and confusing orders on discovery, the court will likely have to consider this factor on remand.
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.' The parties vigorously debate the effect of this factor here.
The answer lies in the meaning of 'public interest' in the context of this balancing test. There are two different such interests.
The first 'public interest' is not the intensity of public concern, but rather the public welfare; that is, the protection of the public from harm. Where the government brings the civil suit to enforce laws designed to protect the public, the public interest in the civil litigation has often been a compelling basis for denying a stay because of a 'tangible threat of immediate and serious harm to the public at large.' For example, public
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