Parallel Proceedings - A Discovery Minefield

by Georgia A. Staton and Renee J. Scatena

A "parallel proceeding" refers to simultaneous civil and criminal discovery, administrative, or judicial proceedings arising out of a single set of facts.¹ Effective representation of the client, whether an individual, small business or large corporation, involved in parallel civil and criminal proceedings requires coordinating discovery as well as the exercise of privileges and waivers in order to minimize the erosion of the defendant's Constitutional protections. The Federal Rules of Civil and Criminal Procedure do not provide answers, or even guidance, to frequently asked questions associated with parallel proceedings, such as: (1) What kind of discovery from the criminal case is available to the civil litigants? (2) When may the client exercise the Fifth Amendment right to remain silent in the civil proceeding, and are there any disadvantages in doing so? (3) When is a stay appropriate, and should the civil or the criminal case go first? This article discusses these issues, as well as other discovery considerations which face the client involved in parallel civil and criminal cases.

Parallel Criminal and Civil Discovery

The Differences Between Criminal and Civil Discovery Rules

Civil and criminal litigation have distinct discovery rules. Because criminal discovery is much narrower than allowed in civil or administrative cases, criminal defense lawyers often search for information through the civil proceedings. Under the Federal Rules of Criminal Procedure, the defense typically receives little more than the grand jury indictment, which only sets forth a minimal description of the alleged facts. The defendant is not entitled to review the grand jury transcript nor the evidence presented to the grand jurors.² There are no automatic disclosure requirements for either the prosecution or the accused, except that under Brady v. Maryland³ the prosecutor is required to disclose all evidence that is exculpatory to the defendant.

In federal criminal cases, the accused is not entitled to statements made by the government attorney, federal agents or any of the government's witnesses.⁴ Pursuant to the Jencks Act, witness statements in the possession of the government are not discoverable until after the witness has testified on direct examination, and then only upon request of the defendant.⁵ Upon request, those accused of a crime in federal court may receive only: (1) relevant written or recorded statements made by the accused; (2) a copy of the defendant's prior record; (3) the results and reports of any physical and mental evaluations, or scientific experiments, which are either material to the preparation of the defense or are intended for use at trial by the prosecution; and (4) a written summary of any expert testimony the prosecution intends to use, including the experts' qualifications, opinions, and the bases and reasons for those opinions. A corporate defendant or partnership, association or labor union may also obtain any statement made by a person who the government contends was able to legally bind the corporation, or who was personally involved in the alleged criminal conduct. If the accused receives the permitted disclosure, the defense must then make reciprocal disclosure.⁶

The absence of mandatory disclosure and the limited permissive disclosure provisions increase the investigative burden on the criminal defendant. The prosecution, with its abundant resources and access to federal agents, holds the advantage. The defense attorney typically employs the use of a private criminal investigator to obtain basic information, such as the identity and location of potential witnesses. Witnesses are not required to submit to interviews at all, let alone under oath. Consequently, the day of trial may be the criminal defense attorney's first opportunity to examine the witness.⁷ Depositions are virtually non-existent and require a motion demonstrating that the deposition is in the "interests of justice" due to "exceptional circumstances."⁸ Depositions are not for discovery but may be taken only to preserve the testimony of a party's own witness who may be unavailable for trial. When a deposition is ordered, it is conducted in the same manner as if the witness were testifying at trial, including cross-examination by the opponent.⁹ Unlike civil depositions, all evidentiary objections are permitted and must be made at the time of the deposition or may be deemed waived.¹⁰

In contrast to criminal discovery, civil disclosure rules require the parties to freely exchange information. The parties may depose the opposition, including the plaintiff victim, or any other person who has relevant information or whose testimony may lead to relevant information.¹¹ The scope of the deposition is broad and evidentiary objections are unavailable.

Crossing the Discovery Boundaries

Liberal civil discovery tempts the parties in the criminal proceeding to comb the civil case for bits of evidence which will either bolster their position in the criminal case or uncover the strategy of the opponent. Obtaining evidence from the civil case is easier for the prosecution if one branch of government is conducting a civil or administrative investigation at the same time they are conducting a criminal investigation.¹² The quantity of available discovery is high when there are three simultaneous proceedings, such as where the defendant is prosecuted criminally for fraud, investigated by the Internal Revenue Service (IRS) for failing to report taxes and sued civilly by the defrauded plaintiffs. In such a case effective representation of the client requires coordinating all three proceedings to obtain the maximum amount of discovery without jeopardizing the rights of the defendant.

There is a strong temptation to manipulate discovery in civil cases in order to obtain information helpful in the criminal case. The courts watch closely for such manipulation and look for instances of intentional circumvention of the criminal discovery rules. The seminal case is Campbell v. Eastland,¹³ in which a taxpayer attempted to use a civil suit in order to obtain discovery in a criminal case. In Campbell, the Court expressed its distaste for such conduct and encouraged the government to file a request for a stay of its civil proceeding, stating, "A litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit."¹⁴ Similarly, in In re Eisenberg,¹⁵ the court stated that "Campbell held that liberal discovery procedures were not a 'back door to information otherwise beyond reach under the criminal discovery rules'"¹⁶ and found the plaintiff's attempts to depose a witness under Fed. R. Civ P. 27¹⁷ a disguised attempt at criminal discovery. In United States v. Tison,¹⁸ the Court held it improper for the defendant to file a civil suit to generate discovery for a criminal case and stayed the civil proceeding for three years in order to prevent the defendant from circumventing the criminal discovery provisions.

The IRS is closely scrutinized for discovery abuse and has statutorily limited abilities to conduct parallel discovery.¹⁹ An IRS audit must cease once a referral is made to the Department of Justice.²⁰ The Securities and Exchange Commission has broader concurrent investigative power, but it also may be forced to cease its civil investigation once an indictment is returned.²¹ The ability of government agencies²² to exchange discovery with the Department of Justice is guided by the Supreme Court decision in United States v. Kordel.²³ In Kordel, the Food and Drug Administration filed extensive interrogatories with the defendant company in connection with a civil in rem action.²⁴ The Supreme Court declined to stay civil discovery since: (1) the defendant was represented by counsel, (2) the defendant was on notice of a criminal investigation, and (3) there was no reason to fear prejudice from adverse pretrial publicity or any other unfair injury. As a result, Kordel basically allows government branches, other than the IRS, to freely share information with the Department of Justice. Although the use of civil processes to develop a criminal case may constitute bad faith, courts are likely to uphold civil investigations that involve DOJ cooperation.²⁵

The government is required to conduct civil discovery in good faith and act without the use of deceit or trickery. The Fifth Circuit has held that fraud, deceit or trickery is grounds for denying enforcement of an administrative subpoena.²⁶ In SEC v. ESM Gov't. Sec, Inc., the district court established a three-prong test for good faith, citing the following factors: (1) whether the agency knowingly or intentionally misled the subject of the subpoena; (2) whether the subject was actually misled; and (3) whether the subpoena was the result of improper access to the party's records.²⁷ If the government can meet each of these tests, good faith is established and civil/administrative discovery is allowed. Although the government has argued that it should be permitted to use an administrative subpoena to determine whether its decision to initiate litigation was well-founded, in Resolution Trust Corp. v. Thornton²⁸ the United States Court of Appeals for the District of Columbia rejected that purpose as "unprecedented," "utterly foreign to the law defining the traditional scope of investigative authority" and inconsistent with the rules of civil discovery.²⁹ In Afro-Lecon Inc. v. United States,³⁰ the Court found government abuse warranting a stay of the civil case where government investigators surreptitiously attended discovery meetings in parallel proceedings. If a defendant cannot show specific evidence of agency bad faith, he may be entitled to stay the civil proceeding if he demonstrates that the civil case prejudices his criminal matter and the prejudice outweighs the public's interest in the civil matter.³¹

Crossing the discovery boundaries may trigger a Sixth Amendment ineffective assistance claim. Although the Sixth Amendment right to effective assistance of counsel does not apply to civil cases,³² the right to effective criminal representation attaches as soon as there is a formal charge, preliminary hearing, indictment, information, arraignment or equivalent proceeding.³³ A Sixth Amendment issue may arise when the civil defense attorney obtains documents from the defense attorney's file, thereby subjecting the documents to civil disclosure. The criminal attorney's file will include client confidences and the attorney's work product, including his theory of the case and specific claims or defenses. The government may then access information concerning the defendant and his strategy in the criminal prosecution. The civil attorney must, if such materials are received, raise a Sixth Amendment claim of protection in addition to attorney work-product. Courts have found Sixth Amendment violations when the accused proved that actual prejudice resulted from the exposed attorney-client relationship.³⁴ Therefore, civil counsel are cautioned to tread lightly so as not to subject otherwise protected information to the liberal civil disclosure requirements.

A Sixth Amendment claim may also be raised where the civil proceeding affects the accused's right to hire criminal counsel. The issue frequently arises in civil forfeiture cases. In United States v. Montoya,³⁵the government froze the assets of a criminal defendant with an ex parte restraining order as a prelude to criminal forfeiture. The concern was that the freeze could impinge upon the criminal defendant's ability to retain counsel. However, the Court recognized that the accused had no right to spend funds that were not his to start with. The Court held that if forfeiture of the assets would infringe on the defendant's ability to hire, the accused was entitled to a hearing wherein the government would have to show probable cause that the assets will be forfeitable.³⁶ A similar Sixth Amendment claim may arise if the civil defendant is required to pay excessive fines or attorneys' fees which would render him unable to pay his criminal attorney.³⁷

Special Problems with Grand Jury Materials

Frequently, parties in a civil action will attempt to gain access to grand jury materials because the grand jury's broad investigatory powers enable it to subpoena documents and other tangible evidence that may be difficult for civil litigants to obtain. Grand jury testimony is desirable because a witness' grand jury testimony is given under oath. In federal court, grand jury materials are safeguarded by the Federal Rules of Criminal Procedure³⁸ which impose a general secrecy requirement prohibiting disclosure of "matters occurring before the grand jury."³⁹ Exceptions to non-disclosure may be made (1) for a government attorney in the performance of his duty; (2) when directed by a court; or (3) upon request of the criminal defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.⁴⁰ Transcripts are afforded the highest protection and their request may be conducted in a closed hearing in accordance with Rule 6(e)(5).

Although exceptions for the disclosure of grand jury materials exist, in practice, federal courts are reluctant to make such exceptions. The party seeking disclosure must show that (1) "the material sought is needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the need for continued secrecy; and (3) the request is structured to cover the material so needed."⁴¹ These factors aid the court in balancing a party's need for disclosure to avoid injustice against the need to maintain grand jury secrecy.⁴² Because the provision for secrecy is to protect the inner workings of the grand jury, the more a document reveals the grand jury's work, the greater the protection it receives under the rule.⁴³

Asserting the Fifth Amendment and Attorney-Client Privileges

Clients who face criminal charges must be advised of their right to remain silent pursuant to the Fifth Amendment.⁴⁴ The Fifth Amendment's privilege against self-incrimination can be invoked "in any proceeding, civil or criminal, administrative or judicial, investigatory of adjudicatory."⁴⁵ The privilege protects a person from being compelled to give testimony that could provide a link in a chain of evidence leading to his conviction.⁴⁶ The civil defendant may invoke the privilege when answering a complaint or when responding to requests for admissions, interrogatories or deposition questions. Although the mere production of documents does not compel testimony, the act of producing documents pursuant to a subpoena may have such communicative effect to require Fifth Amendment protection.⁴⁷ Invocation of the privilege depends on the particular facts and circumstances.⁴⁸ Failure to invoke the privilege waives it, and the statements given in the civil case may then be used in the criminal prosecution.⁴⁹

Corporations, as an entity, do not enjoy the protection from self-incrimination afforded by the Fifth Amendment.⁵⁰ In Hale v. Henkel,⁵¹ which involved a grand jury investigation of a corporation accused of Sherman Act violations, the Court held that a corporation has no right to refuse to provide its records.⁵² Individuals in the corporation may, on their own behalf, assert the privilege.⁵³ In Fisher v. United States,⁵⁴ the Supreme Court held that Fifth Amendment claims regarding documents depend not upon the nature of the documents, but upon the communicative act of responding to the subpoena. In Braswell v. United States,⁵⁵ the Supreme Court held that a custodian of records for a corporation must comply with the request for business records, even if the act of producing the records incriminates him.

Although the Fifth Amendment privilege against self-incrimination may not adequately protect a corporation, all is not lost when a company's custodian of records receives a grand jury subpoena. The custodian, as well as other implicated employees, must consult with counsel concerning the options of self incrimination, contempt or perjury, as well as the possibility of supplying the document through an agent. In In re Two Grand Jury Subpoena Duces Tecum,⁵⁶ the Court stated:

When a corporation is asked to produce records, some individual, of course, must act on the corporation's behalf...[i]f the situation is unusual and a corporation's custodian of records would incriminate himself if he were to act to produce the company's records, this still does not relieve the corporation of its continuing obligation to produce the subpoenaed documents. In such a situation, the corporation must appoint some other employee to produce the records...⁵⁷

Where there is no one who can provide the records without self-incrimination, such as a one-man corporation, the remedy is a protective order or postponing civil discovery until termination of the criminal action.⁵⁸ Post Fisher and Braswell, the only instance wherein business documents are privileged in the hands of a client are when the act of production would be testimonial and when the client is not a collective entity.⁵⁹ Even then, the privilege must be asserted on a document-by-document basis.⁶⁰

It is clear that the custodian and other employees who satisfy certain criteria are afforded the protections of the attorney-client privilege.⁶¹ However, to ensure that the document falls within the attorney-client privilege, it should be created with that intention. Clients, particularly employers, make the mistake of conducting their own internal investigation of alleged criminal wrongdoing of an employee as soon as the sound of a criminal charge is near. Corporations will be unable to prevent the disclosure of their internal investigations unless the attorney-client privilege or the attorney work-product doctrine applies.⁶² Although some courts encourage corporate internal investigations by denying discovery requests for them under the "privilege for self-critical analysis,"⁶³ the documents have added protection when they are conducted or supervised by an attorney. Privilege issues are fact-specific and decided on a case-by-case basis.⁶⁴ To maximize the protection from disclosure of an internal investigation, one legal scholar recommends the following measures: (1) the investigation should be conducted by outside counsel; (2) management's authorization for the investigation should be reduced to writing; (3) the authorization should emphasize that management is seeking legal advice and that the attorneys have been asked to conduct the investigation and provide advice; (4) all communications between counsel and management relating to the investigation should be labeled "attorney-client communication" and should be closely held; (5) attorneys interviewing corporate employees should advise each employee that the investigation is being conducted for the purposes of legal advice to the management; and (6) all interview memoranda and reports should indicate that they are for the attorney.⁶⁵

Whether invocation of the Fifth Amendment is appropriate and beneficial may be a subject for disagreement between civil and criminal counsel. However, the attorneys must agree on this issue to avoid inadvertent waivers. Invocation may, under some circumstances, be disadvantageous. For example, if a party invokes the privilege to prevent pre-trial civil discovery, the Court may prohibit that party from presenting it on its own behalf at the time of trial.⁶⁶ Additionally, and unlike criminal cases where neither a prosecutor nor a judge may comment on the accused's silence,⁶⁷ in civil cases, a negative inference can be made by the jury if a defendant asserts his Fifth Amendment right against self-incrimination.⁶⁸ Furthermore, if a defendant invokes his privilege against self-incrimination during pre-trial civil discovery, he may be precluded from testifying at his civil trial.⁶⁹ A stay may be appropriate when the civil litigant is faced with the dilemma of waiving the privilege and exposing herself to criminal prosecution or invoking the privilege and risk losing the civil case.

Stays in Civil Proceedings and Other Forms of Relief

A client who is adversely affected by simultaneous civil and criminal proceedings should ask for protection from the court, such as a stay of the trial, the client's deposition or civil discovery. A party may also move for a confidentiality order or a protective discovery order. Though the courts have the authority to dismiss a civil proceeding, this extreme remedy is rare, and the court will stretch to resolve prejudice by implementing one of the alternative remedies. In Federal Court, the civil judge may enter "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." ⁷⁰

Whether a stay of the civil proceeding is appropriate depends on the "particular circumstances of the case."⁷¹ It has been held that a stay of the civil proceedings should not be granted absent undue prejudice or a substantial interference of the defendant's constitutional rights. ⁷² The strongest argument for a stay of discovery in the civil case is when there is pending criminal prosecution (post-indictment) based on the same set of facts as in the civil case. In this situation, the risk of self-incrimination is high. Once the criminal case is finished, the accused's defense has already been exposed, and the risk of self-incrimination is diminished, especially if the defendant testified at trial. The fact that an uncertain and perhaps lengthy criminal appeal is pending is an insufficient basis for a stay of the civil case. ⁷³ On the other hand, if there are unreasonable conflicts between the parallel proceedings, Campbell would support that the criminal case be tried first. In Campbell, the Court stated that "administrative policy gives priority to the public interest in law enforcement." ⁷⁴

If a stay of the civil proceeding would be advantageous to the client, the civil attorney should explore a stipulation for a stay. The plaintiff may so stipulate because he may be entitled to summary judgment on the issue of liability if the defendant is convicted in the criminal proceeding. ⁷⁵ The civil plaintiff is then spared the costs of discovery and litigating liability. The provisions governing the Speedy Trial Act also guarantee the plaintiff that the criminal case will not endlessly drag to the prejudice of their claims. ⁷⁶ On the other hand, cases with multiple or class-action plaintiffs may find their award spent on the defendant's costs to litigate the criminal case.

Government agencies are frequently given a stay of their civil matter. ⁷⁷ The facts of the civil action must be "inextricably interwoven" with those of the criminal prosecution. ⁷⁸ In SEC v. Chestman,⁷⁹ the government secured a stay of discovery in a civil action to prevent the defendant from obtaining evidence for a pending criminal investigation. The Court of Appeals for the Second Circuit upheld the stay, even though the government itself performed civil discovery prior to its request. In In re Boesky,⁸⁰ a stay of disclosure was granted but the defendant was permitted to make a motion at the time of trial to dismiss the complaint if the defendant could show that he was prejudiced by the delay in discovery.

To determine whether a stay should be granted, courts generally balance the interests of the parties and the public. Five factors are often cited in this inquiry, including: (1) the private interests of the plaintiff in proceeding expeditiously with the civil litigation; (2) the private interests of and burden on the defendant; (3) the convenience of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public's interest. ⁸¹

Where a stay of the civil proceeding is unattainable, other protections are available, including quashing or modifying subpoenas under Civil Rule 45(b), limiting examinations under Civil Rule 30(d), and sealing confidential depositions. ⁸² A protective order is less prejudicial to the non-moving party because it allows the lawsuit to continue, yet places restrictions or conditions which limit access to certain discovery. The drawback in reliance upon a protective order is that it is subject to modification by the Court at any time, even though a party may rely upon it to his detriment. ⁸³

The civil attorney should, if appropriate, consider a request for immunity from prosecution for either the defendant or a witness. ⁸⁴ In essence, the immunity statute protects compelled witnesses from the direct or indirect use of their immunized testimony against them in criminal cases. Federal courts lack the power to grant immunity from prosecution absent the approval of the U.S. Attorney. ⁸⁵ Additionally, the government is still free to prosecute using the same information already retrieved from independent sources. ⁸⁶ Recent decisions in United States v. North,⁸⁷ United States v. Helmsley⁸⁸ and United States v. Poindexter⁸⁹ illustrate disparate treatment of the use of immunity. ⁹⁰

Conclusion

Simultaneous civil and criminal proceedings are far from "parallel" and in fact are intertwined with multiple discovery and Constitutional issues. Though the client will likely have at least one attorney for each forum, competent defense counsel must stay abreast of the issues involved in litigating both proceedings to ensure that the client's rights are fully protected.

Georgia A. Statonis a partner in the Phoenix firm of Jones, Skelton & Hochuli, where she practices mainly in the areas of employment and municipal liability litigation. She is certified by the State Bar of Arizona as a Specialist in Personal Injury and Wrongful Death.

Renee Scatena is also an attorney in the Phoenix firm of Jones, Skelton & Hochuli, where she practices civil and criminal litigation with an emphasis in municipality defense, professional liability and products liability.

This article was presented at the International Association of Defense Counsel 1998 midyear meeting in Acapulco, Mexico.

ENDNOTES:

1. Robert J. McDade & Keara O'Donnell, White-Collar Crime: Third Annual Survey of Law - Parallel Civil and Criminal Proceedings, 22 Am. Crim. L. Rev. 613, 613 n. 2811 (1992).

2. Fed. R. Crim. P. 16(a)(3).

3. 373 U.S. 83 (1963).

4. See Fed. R. Crim. P. 16(a)(2).

5. See Jencks v. United States, 353 U.S. 657 (1957).

6. Fed. R. Crim. P. 16(b).

7. In Arizona's State (Superior) Court, it is considered misconduct, and a criminal defense attorney may be subject to sanction by the court and State Bar for initiating contact with an alleged victim. Only if the alleged victim contacts the defendant or the defense attorney, or agrees to be interviewed by the defense through a message delivered by the assigned prosecutor, may the victim be interviewed. See Az. R. Civ. P. 39(b). Unlike some State criminal courts, however, the attorney for the accused in federal court may contact and attempt to interview the alleged victim.

8. Fed. R. Crim. P. 15(a).

9. See Fed. R. Crim. P. 15(a).

10. See Fed. R. Crim. P. 16(f).

11. See Fed R. Civ. P. 26.

12. For a discussion of the various agencies and standards, see McDade & O'Donnell, supra note 1, at 697.

13. 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963).

14. Id. at 487.

15. 654 F.2d 1107, 1113-14 (5th Cir. 1981).

16. 654 F. 2d 1107 at 1113.

17. Fed. R. Civ. P. 27(a) permits a party to take a civil deposition prior to bringing a lawsuit in federal court. There is no rule in criminal procedure analogous to Rule 27 by which a deposition can be taken by a potential defendant prior to the initiation of prosecution.

18. 780 F.2d 1569, 1572 (11th Cir. 1986).

19. See also United States v. LaSalle, 437 U.S. 298, 312 (1978).

20. LaSalle, 437 U.S. at 312.

21. See SEC v. Dresser Industries, Inc., 628 F. 2d 1368, 1388 (D.C. Cir.)(en banc), cert. denied, 449 U.S. 993 (1980).

22. See Degen v. United States, 116 S.Ct. 1777 (1996); see also Digital Equipment Corporation v. Currie Enterprises, 142 F.R.D. 8, 13 (D. Mass. 1991) (summarizing the differences between civil and criminal discovery).

23. 397 U.S. 1 (1970).

24. Id. at 2-3.

25. McDade & O'Donnell, supra note 1, at 707.

26. SEC v. ESM Gov't Sec., Inc., 645 F.2d 310, 317 (5th Cir. 1981). The test is further explained in United States v. Little, 753 F. 2d 1420, 1438 (9th Cir. 1984).

27. Id. at 317-318.

28. 41 F.3d 1539 (D.C. Cir. 1994).

29. Id. at 1547.

30. 820 F.2d 1198, 1200 (Fed. Cir. 1989).

31. Id. at 1203.

32. See e.g., United States v. Rogers, 534 F. 2d 1134, 1135 (5th Cir.), cert. denied, 429 U.S. 940 (1976).

33. See Brewer v. Williams, 430 U.S. 387, 398 (1977); Powell v. Alabama, 287 U.S. 45, 57 (1932).

34. See e.g., Bishop v. Rose, 701 F. 2d 1150, 1156 (6th Cir. 1983) (Government precluded from using evidence obtained from a collateral source); United States v. Sander, 615 F. 2d 215, 219 (5th Cir.), cert. denied, 449 U.S. 835 (1980) (same).

35. 860 F. 2d 706 (7th Cir. 1988).

36. See also United States v. Michelle's Lounge, 39 F.3d 684 (7th Cir. 1994) (Michelle's Lounge I) (Parallel proceedings' infringement on Sixth Amendment's right to pay for the attorney of his choice).

37. See United States v. Michelle's Lounge (Michelle's Lounge II) 126 F. 3d 1006 (1997).

38. Fed. R. Crim. P. 6(c)(2).

39. Fed. R. Crim. P. 6(e)(2).

40. Fed. R. Crim. P. 6(e)(3).

41. Douglas Oil Co. v. Petrol Shops Northwest, 441 U.S. 211, 222 (1979) (enumeration added); see also In re: Grand Jury Proceedings, Special September, 1986 (Blair v. Adm'r of Ill. Attorney Registration and Disciplinary Comm'n), 942 F. 2d 1195, 1198 (7th Cir. 1991)(three-prong test used).

42. Douglas Oil Co., 441 U.S. at 222.

43. See In re Grand Jury Proceedings Relative to Perl, 838 F. 2d 304, 306-07 (8th Cir. 1988).

44. "No person...shall be compelled in any criminal case to be a witness against himself..." U.S. Const. amend. V.

45. Kastigar v. United States, 406 U.S. 441, 444 (1972).

46. See Hoffman v. United States, 341 U.S. 479, 486 (1951).

47. Fisher v. United States, 425 U.S. 391, 410 (1976).

48. Id. at 410.

49. See United States v. Kordel, 397 U.S. 1 (1970).

50. George Campbell Painting Corp. v. Reid, 392 U.S. 286, 288-89 (1968).

51. 201 U.S. 43 (1906).

52. Id. at 74.

53. See United States v. Kordel, 397 U.S. 1 (1969) (citing Curico v. United States, 354 U.S. 118, 124 (1957).

54. 425 U.S. 391 (1976).

55. 487 U.S. 99 (1988).

56. 769 F.2d 52 (2d Cir. 1985).

57. Id. at 57. See also In re Grand Jury No. 86-3 (Will Roberts Corp.) 816 F.2d 569 (11th Cir. 1987) (one-man corporation may appoint agent to produce records).

58. See United States v. Kordel, 397 U.S. 1, 8 (1970).

59. See Gregory Massing, The Fifth Amendment, the Attorney-Client Privilege, and the Prosecution of White Collar Crime, 75 Va. L. Rev. 1179, 1198 n. 106 (1989).

60. See, e.g., FSLIC v. Hardee, 686 F. Supp. 885, 886 (N.D. Fla. 1988).

61. Upjohn v. United States, 449 U.S. 383 (1981).

62. See Epstein & Martin, The Attorney-Client Privilege and the Work-Product Doctrine (2d ed. 1989).

63. See, e.g., Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 610 (8th Cir. 1977) (protection of documents generated from an internal investigation "will encourage corporations to seek out and correct wrongdoing in their own house").

64. Upjohn Co. v. United States, 449 U.S. 383, 396 (1981); Trammel v. United States, 445 U.S. 40, 47 (1980).

65. See Richard H. Porter, Voluntary Disclosures to Federal Agencies - Their Impact on the Ability of Corporations to Protect From Discovery Materials Developed During the Course of Internal Investigations, 39 Cath. U.L. Rev. 1007, 1014-15 (1990).

66. See, e.g., SEC v. Cymaticolor Corp., 106 F.R.D. 545, 549-50 (S.D.N.Y. 1985). See also National Acceptance Co. of America v. Bathalter, 705 F. 2d 924, 929-930 (7th Cir. 1983).

67. Griffin v. California, 380 U.S. 609, 615 (1965).

68. Baxter v. Palmigiano, 425 U.S. 308 (1976); see also United States v. 15 Black Ledge Drive, 897 F.2d 97 (2d Cir. 1990).

69. See, e.g., Duffy v. Currier, 291 F. Supp. 810, 815 (D. Minn. 1968).

70. Fed. R. Civ. P. 26 (c). The Criminal Counterpart is Fed. R. Crim. P. 16(d)(1).

71. United States v. Kordel, 397 U.S. 1, 12 n. 27 (1970); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C. Cir.), cert. denied, 449 U.S. 993 (1980).

72. See Dresser, 628 F.2d at 1375 (stay denied in civil proceeding because no indictment had been filed and criminal charges were speculative); Ross v. IRS, 162 B.R. 860, 862 (D. Idaho 1993)(same); Paine, Webber, Jackson & Curtis, Inc. v. Malon S. Andrus, Inc., 486 F. Supp. 1118, 1119 (S.D.N.Y. 1980)(denied a stay because defendant retained right to invoke privilege against self-incrimination).

73. See, e.g., General Dynamics Corp. v. Selb Manufacturing Co., 481 F. 2d 1204, 1215 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974) (denial of an indefinite stay of civil proceedings sought after conviction but during appeal).

74. 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963).

75. See, e.g., Haring v. Prosise, 462 U.S. 306 (1983); United States v. Real Property Located at Section 18, 976 F.2d 515 (9th Cir. 1992)(guilty plea may be used to establish issue preclusion in subsequent civil suit where an element of crime to which defendant pled guilty or of which he was convicted was at issue in second suit).

76. See, e.g., SEC v. Dresser Industries, Inc., 628 F.2d at 1377.

77. McDade & O'Donnell, supra note 1, at 716 ("The government has nearly absolute power to obtain a stay of civil proceedings.").

78. Campbell v. Eastland, 307 F.2d 478 at 488 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963). See also FDIC v. Kung Hung Chang, 1986 WL 3518 (S.D.N.Y.) at *1 ("when both civil and criminal proceedings arise out of the same or related transactions, the government is, as a general rule, entitled to a stay of all discovery in the civil action until disposition of the criminal matter.").

79. 861 F.2d 49 (2d Cir. 1988).

80. 128 F.R.D. 47 (S.D.N.Y. 1989).

81. See Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980); FSLIC v. Molinaro, 889 F.2d 899, 902-903 (9th Cir. 1989); and Keating v. OTS, 45 F.3d 322, 324-25 (9th Cir. 1995).

82. See SEC v. Grossman, 86 Civ. 1031 (SWK), slip op. at 5 (S.D.N.Y. March 30, 1987).

83. See AT&T v. Grady, 594 F.2d 594, 597 (7th Cir. 1978), cert. denied, 440 U.S. 971 (1979).

84. See 18 U.S.C. § 6002-05 (1988)

85. See Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57 n. 13 (1983).

86. See United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 506 U.S. 1021 (1992).

87. 910 F. 2d 843 (D.C. Cir.) (per curiam) (North I), modified, 920 F. 2d 940 (D.C. Cir. 1990) (per curiam) (North II), cert. denied, 500 U.S. 941 (1991).

88. 941 F. 2d 71 (2d Cir. 1991).

89. 951 F. 2d 369 (D.C. Cir. 1991).

90. For a critique of immunity in the lower courts, see Jerome A. Murphy, The Aftermath of the Iran-Contra Trials: The Uncertain Status of Derivative Use Immunity, 51 Md. L. Rev. 1011 (1992).