King v. Olympic Pipeline Co.
| Citation | 16 P.3d 45,104 Wash.App. 338 |
| Decision Date | 26 December 2000 |
| Docket Number | No. 46682-8-I.,46682-8-I. |
| Court | Washington Court of Appeals |
| Parties | Frank S. KING, as the personal representative of the estate of Wade B. King, and Frank S. King and Mary L. King, individually, and Tracy K. Bell, individually, and Jason King, individually, Respondents, v. OLYMPIC PIPELINE COMPANY, a foreign corporation; Equilon Pipeline Company, LLC, a foreign limited liability company, Defendants, Fred Crognale, Frank Hopf, and Ron Brentson, Petitioners. Olympic Pipe Line Company, a foreign corporation, Equilon Pipeline Company, LLC, a foreign limited liability company, and Equilon Enterprises, LLC, a foreign limited liability company, Third-Party Plaintiffs, v. IMCO General Construction Co., a domestic corporation, and John Doe Defendants One Through Four, Third-Party Defendants, Bellingham Herald, Intervenor. |
Franklin L. Dennis, Robert C. Blackstone, John Wolfe, Kathryn A. Miller, Wolfe & Rodihan, James E. Lobsenz, Carney, Badley, Smith & Spellman, Laurence B. Finegold, Seattle, Michael R. Spaan, Barat M. LaPorte, Anchorage, AK, for Appellants.
David M. Beninger, Paul N. Luvera, Luvera, Barnett, Brindley, Beninger & Cunningham, Seattle, Patricia E. Anderson, Kirkland, for Respondents.
D. Murphy Evans, Adelstein, Sharpe & Serka, Bellingham, for Intervenor.
Whether to stay civil proceedings to protect a party's Fifth Amendment rights when parallel criminal proceedings are pending is a matter within the sound discretion of the trial court. No previous Washington decision has set forth the competing interests to be balanced in making such determinations. Having done so, we remand for rehearing. We also address an alternative request for a protective order under CR 26(c).
Olympic Pipeline Company (Olympic) operates a buried pipeline through which flows gasoline, diesel fuel, and jet fuel. On June 10, 1999, the pipeline ruptured, spilling thousands of gallons of gasoline into Whatcom Creek in Bellingham. Wade King and Stephen Tsiorvas, both ten years old, were playing near the creek, and a young man was fishing nearby. The gas ignited. The disaster took the lives of the boys and the young fisherman, and left a swath of destruction along the creek.
The family of Wade King (King) brought this wrongful death action against Olympic, two other pipeline companies, and three individuals. The individual defendants (Petitioners) are Fred Crognale, Olympic's president at the time of the explosion; Frank Hopf, Olympic's vice president and general manager; and Ron Brentson, Olympic's supervisor of product movement.1
Investigations into the cause of the tragedy began immediately. The National Transportation Safety Board is charged with determining the cause of the fire. The Department of Transportation's Office of Pipeline Safety investigated and proposed a record $3.05 million fine for safety violations. The Environmental Protection Agency, the Federal Bureau of Investigation, and the U.S. Attorney are investigating potential criminal violations of the Clean Water Act and other environmental laws.
The criminal investigations have focused in part on Petitioners. For example, within weeks of the disaster, an assistant U.S. attorney questioned Brentson's former wife about any statements Brentson had made to her concerning the incident. In July 1999, Brentson's personnel files and other documents were subpoenaed and later produced to a federal grand jury. By November 1999, numerous grand jury subpoenas had been served upon individuals believed to have knowledge regarding the incident and the operation of the pipeline. Immunity from federal prosecution was offered to and accepted by some Olympic employees in exchange for their testimony before the grand jury. Brentson supervised at least one of those employees. In December 1999, federal investigators served a search warrant and seized the section of pipe involved in the incident.
Meanwhile, this civil suit was pending. In February 2000, Petitioners moved for a limited, partial stay of discovery directed to them until December 1, 2000, the anticipated date of completion of the federal investigations. They sought a stay to preserve both the right to invoke the Fifth Amendment privilege, and the right to defend fully in the civil case. The trial court denied the motion.
The next day, the U.S. Department of Justice notified counsel for two Petitioners that the government was continuing its investigations, but was "not yet ready to resolve the issue of criminal liability with respect to their clients." The letters stated that the government planned to seek a court order to allow destructive testing of the pipe to determine the cause of the rupture, and continued, "Please inform us by close of business, February 14, 2000, if you will be opposing such a motion or if you have any other concerns about the testing proposed."2 Petitioners responded to the letter and participated in the federal court proceeding.
The federal district judge framed the issue as "whether the proposed testing may go forward consistent with the rights of potential defendants charged as a result of the grand jury investigation." In its order authorizing partial destructive testing, the district judge stated, "the United States Attorney sought this order so that potential defendants could raise any due process concerns they might have regarding the possible destruction of evidence during testing." The district judge acknowledged the circumstances were out of the ordinary: "In this unusual proceeding, the Court has considered the submissions of many potential defendants who are not `parties' in the traditional sense because they have not been and may never be indicted."
On the strength of these developments, Petitioners renewed their motion for a temporary stay of discovery directed to them from May until September 15, 2000, at which point they believed the status of the federal investigations would have clarified.3 In the alternative, they sought a CR 26 protective order precluding dissemination to non-parties of any discovery taken from them.4 The Bellingham Herald intervened for the purpose of opposing any protective order. After a hearing, the trial court again denied the motions. We granted discretionary review, and subsequently stayed discovery pending this opinion.5
A court's determination on a motion to stay proceedings or grant a protective order is discretionary, and is reviewed only for abuse of discretion.6 A trial court abuses its discretion only if its ruling is manifestly unreasonable or is based upon untenable grounds or reasons.7 Whether a court abuses its discretion in controlling discovery depends on the interests affected and the reasons for and against the decision.8
While no Washington court has previously addressed the issue of a stay to protect Fifth Amendment rights when parallel civil and criminal proceedings are pending,9 federal courts have developed a considerable body of jurisprudence for the balancing of the divergent interests involved.10 Our review of this case law persuades us the factors considered by the federal courts supply an appropriate framework for analysis. While a proper understanding of each opinion requires close attention to its facts, the factors are sensible, if inexact, and provide for a thematic approach to these issues. We therefore adopt the factors set forth here as appropriate considerations for analysis in Washington courts. Although the list is not exhaustive,11 the parties have suggested no additional or different factors for our consideration.
Before we begin, we make three observations. First, mindful as we are that no previous Washington case has addressed this issue, we intend our discussion to have general application to requests for stays in the context of parallel proceedings. Second, our comments regarding the particulars of this case are intended to illuminate the factors for general application and to guide the court below on rehearing, not to suggest a result. Finally, we note that most of the federal cases we have reviewed discuss the balancing of interests in the context of a request to stay the entire civil proceeding or all discovery.12 Here, the individual defendants seek only a temporary stay of discovery, and only as directed to themselves. They make no request to halt the entire litigation. This difference likely alters the balancing of certain factors.
The court has inherent power to stay its proceedings where the interest of justice so requires.13 As Justice Cardozo observed:
[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.14
Petitioners requested a temporary stay, but only of discovery15 directed to them, on grounds that participation in civil discovery may place them in jeopardy of self-incrimination in light of the ongoing federal criminal investigation. They limited their request so as to permit all other discovery to proceed, in order to minimize prejudice to King. They point out that if they fail to invoke the privilege in the civil case, it is waived, and all evidence may be used in a criminal prosecution. On the other hand, if they invoke the privilege in the...
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