minimal harm. As the government points out, the stay in this action may streamline later civil discovery since transcripts from the criminal case will be available to the civil parties. In addition, many of the interested parties have consented to this stay. Finally, courts are more likely to grant such stays when an indictment has already been issued, as is the case here. See Par Pharmaceutical, Inc. Securities Litigation, 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (citing cases for proposition that courts in this Circuit regularly stay civil proceedings when "criminal investigation has ripened into an indictment.")
2. Defendant Redzinski's Fifth Amendment Claim
Defendant Redzinski presents another independent ground for granting the stay at issue. As a preliminary matter, a defendant who has pleaded guilty to criminal charges but has not yet been sentenced retains his constitutional right against self-incrimination. United States v. Willard, 919 F.2d 606, 608 (9th Cir. 1990), cert. denied, U.S. , 112 S. Ct. 208, 116 L. Ed. 2d 167 (1991); United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974). Redzinski claims that he will be forced to assert his fifth amendment right in response to most of the charges in the complaint and will therefore risk liability on those charges. See Brock v. Tolkow, 109 F.R.D. 116, 120 (E.D.N.Y. 1985) (discussing propriety of granting stay when defendants face choice between asserting rights against self-incrimination and civil liability). Alternatively, Redzinski will move to amend his complaint after he has been sentenced, thereby consuming resources of the court. Finally, it is relevant that this defendant did not create the problem he seeks to remedy. See Arden Way v. Boesky, 660 F. Supp. at 1498 (refusing to stay discovery because movant "deliberately courted the impediment he seeks to erect as a shield").
"Where invocation of the fifth amendment imposes undue sanctions or penalties on a defendant, a court may in its discretion stay civil proceedings, postpone civil discovery, or impose protective orders and conditions in the furtherance of the interests of justice." Arden Way Assocs. v. Boesky, 660 F. Supp. 1494, 1498 (S.D.N.Y. 1987). In United States v. District Council of New York City, 782 F. Supp. 920, 925 (S.D.N.Y. 1992), the court refused to grant a stay for two unindicted civil defendants and one acquitted defendant. Judge Haight found that imposing on defendants the "unpleasant choice" between asserting their rights against self-incrimination and facing liability alone did not constitute undue prejudice. Id. However, the court recognized that pending indictments could change its calculus. Id. at 924. That Redzinski's sentencing awaits his cooperation in the criminal case provides an analogous reason for staying this action. See Securities Exchange Commission v. Dresser Industries, Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1376 (D.C. Cir.), cert. denied, 449 U.S. 993, 66 L. Ed. 2d 289, 101 S. Ct. 529 (1980) (If "the noncriminal proceeding . . . might undermine the party's Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b) . . . [and] delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it.").
As noted above, all of the other equities also balance in favor of granting this stay; these include: the consent of various parties; the similarity of the civil and criminal matters; and the advanced stage of the criminal proceeding and its assured expeditious resolution. Thus, for all of the reasons provided above, the motions to stay the civil proceedings pending outcome of the criminal trial in this case is granted.
Dated: Brooklyn, New York
September 25th 1992
I. LEO GLASSER, U.S.D.J.
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