We are often called to represent individuals and entities that face both civil and criminal exposure as a result of a casualty event. Care must always be taken to avoid waiving a client’s constitutional right against self-incrimination by responding to pleadings or discovery in the civil action. The surest way to prevent this is to seek a stay of the civil action, a move that is frequently opposed by the claimant. The standard for such a stay had always been murky until the Pennsylvania Superior issued a recent opinion.
The Pennsylvania Superior Court has adopted a six-factor balancing test to determine whether to stay a civil case pending the resolution of a related criminal matter. In Keese v. Dougherty et al., 2020 Pa. Super 64, No. 1670 EDA 2018 (March 16, 2020), the defendants filed a motion to stay the civil action against them after one of the defendants became the subject of criminal investigations. The trial court denied the defendants’ motion after considering only one of the six factors of the six-factor test established by federal courts. The factors include: (1) the extent to which the issues in the civil and criminal cases overlap; (2) the status of the criminal proceedings, including whether any defendants have been indicted; (3) the plaintiff’s interests in expeditious civil proceedings weighed against the prejudice to the plaintiff caused by the delay; (4) the burden on the defendants; (5) the interests of the court; and (6) the public interest.
On appeal, the Superior Court explained that the trial court’s analysis of only the first factor “did not adequately accommodate, acknowledge, or permit vindication of [a]ppellants’ constitutional rights” against self-incrimination under the United States and Pennsylvania Constitutions. As a result, the Superior Court held that the trial court abused its discretion in failing to weigh, at a minimum, all six factors when ruling on the defendants’ motion to stay. Consequently, the Superior Court vacated the order denying the defendants’ motion and remanded the case for further proceedings.