Opinion
CIV. NO. 02-1119 MCA/ACT
March 14, 2003
ORDER
THIS MATTER comes before the Court upon Defendant Otero's Motion to Stay Discovery and for a Protective Order filed January 31, 2003. Having reviewed the pleadings and being otherwise advised in the premises, the Court finds that Defendant's Motion is not well taken and will be denied.
The Plaintiff is an inmate serving a sentence for a felony conviction with the New Mexico Department of Corrections. He alleges that on April 7, 2002, the Defendant, Sergeant Roger Otero (Otero), forced the Plaintiff to engage in an sexual act. Otero asserts that he is the subject of a criminal investigation by the district attorney. The district attorney is investigating the crime of statutory rape. At the request of the district attorney, Otero has given DNA samples. Plaintiff has noticed the deposition of the Otero. Otero is seeking a protective order prohibiting his deposition and a stay of all proceeding "until the real and appreciable fear of incrimination is no longer an issue." Memorandum in Support, p. 2. Otero contends that he will assert his Fifth Amendment right against self-incrimination to questions related to this lawsuit.
The Court may stay civil proceedings pending the outcome of corresponding criminal proceedings. Securities Exchange Comm'n v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980) cert. denied, 449 U.S. 993. In making this determination, the Court must examine the totality of the circumstances. In addition to the extent to which Otero's Fifth Amendment right is implicated, the Court should consider:
(1)the interest of plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on the defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and 5) the interest of the public in the pending civil and criminal litigation. Fed. Sav. Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902-03 (9th Cir. 1989).
Otero is not the subject of a criminal proceeding relating to the events of this case, nor has he been indicted by the grand jury. Rather, he is the subject of an investigation by the district attorney. This factor weighs against a stay. Dresser Indus., 628 F.2d. at 1376 (where no indictment issued, purpose of staying civil proceedings during pending criminal proceedings is far weaker one); United States v. Private Sanitation Indus. Ass'n, 811 F. Supp. 802 (E.D.N.Y. 1992) (noting general rule in that district that pre-indictment requests for stay of civil proceedings are denied). Moreover, Otero has not made a case for a blanket assertion of his Fifth Amendment privilege against self-incrimination. Otero and his counsel are aware of the potential criminal charges. During his deposition or pursuant to other discovery, Otero may interpose his claim of Fifth Amendment privilege pertaining to specific questions or inquiry. United States of America v. Schmidt, 816 F.2d 1477 (10th Cir. 1987). The Court, in reaching its decision, has considered the potential prejudice Otero may suffer from asserting his Fifth Amendment right at his deposition. Baxter v. Palmigiano, 425 U.S. 308 (1976) (assertion of the Fifth Amendment right allows adverse inferences against parties in a civil action).
The Plaintiff has an interest in proceeding with this case. As the District of Columbia has observed, "the overall interest of the courts that justice be done may very well require that the compensation and remedy due to a civil plaintiff should not be delayed. . ." Gordon v. Federal Deposit Ins. Corp., 427 F.2d 578 (D.C. 1970). The Court also notes that Otero is the only defendant who faces potential criminal prosecution and he has not stated any reason why discovery as to the remaining defendants should be stayed. The other Defendants have an interest in expeditiously vindicating their defenses in this litigation.
After taking into account the particular circumstances and competing interests in this case, and considering the implications of Otero asserting his Fifth Amendment right, the Court concludes in balancing the competing interests that a stay of all discovery or the entry of a protective order regarding the deposition or other discovery directed to Otero is unnecessary. Accordingly the Court denies Otero's Motion to Stay Discovery and for a Protective Order.
IT IS SO ORDERED.