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In re Marriage of: Christine M. Deal: PROCEEDING - overlapping civil and criminal matters: discovery, protective order; writ of prohibition

1
STATE OF MINNESOTA
IN SUPREME COURT
A07-278
Court of Appeals Anderson, Paul H., J.
In re State of Minnesota,
Appellant,
In re the Marriage of: Filed: November 1, 2007
Office of Appellate Courts
Christina M. Deal,
Petitioner/Respondent,
vs.
Ryan S. Deal,
Respondent/Respondent.
S Y L L A B U S
The state has a strong interest in staying discovery in a civil proceeding when the
civil proceeding shares overlapping evidentiary material with a pending criminal
proceeding; therefore, the district court abused its discretion when it denied the states
request to permissively intervene in a civil proceeding for the limited purpose of
requesting a stay of the depositions.
When discovery in a civil proceeding includes information relevant to a pending
criminal proceeding, a protective order staying civil discovery under Minn. R. Civ. P.
2
26.03 may be necessary to prevent the use of civil discovery as a way to circumvent the
limits on criminal discovery.
A district court should balance the interests of the litigants, nonparties, the public,
and the court when determining whether to stay civil discovery during the pendency of a
criminal proceeding involving overlapping evidentiary material.
The district court abused its discretion by denying the states request under Minn.
R. Civ. P. 26.03 for a protective order staying the depositions in a civil proceeding of the
alleged victim and a potential witness in a criminal proceeding when the criminal
proceeding shared overlapping evidentiary material with the civil proceeding.
The state had no other adequate remedy at law when the district court abused its
discretion by failing to apply a balancing test when it denied the states request to stay
civil depositions for the duration of a related criminal proceeding; therefore, the court of
appeals erred when it denied the states petition for a writ of prohibition.
Reversed.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
Ryan S. Deal is charged with criminal sexual conduct and is also a party to a
marriage dissolution proceeding. He sought to use civil discovery in the dissolution
proceeding to depose the alleged victim and a potential witness in the ongoing criminal
proceeding. The State of Minnesota petitioned to intervene in the dissolution proceeding
3
to stay the civil depositions for the duration of the criminal trial. The district court found
that the state had no interest in the dissolution proceeding and denied the states petition
to intervene and to stay the depositions. The state then petitioned the Minnesota Court of
Appeals for a writ of prohibition to prevent the district court from allowing the
depositions. The court of appeals denied the writ. Because we conclude that allowing
civil discovery of information relevant to Ryan Deals pending criminal proceeding
contravenes the policies behind the criminal discovery rules, we reverse.
Christina M. Deal and Ryan S. Deal, a/k/a Ryan Deal, were married on
September 15, 2000, and separated in March 2006. They have one minor child together,
T.D., who is now 6 years old. Christina M. Deal has three minor children from a
previous relationship: B.Q., C.Q., and E.Q. All four children resided with the parties
during their marriage. On August 15, 2006, the Traverse County Attorney filed charges
against Ryan Deal for acts of criminal sexual conduct against B.Q., then 13 years old.
Shortly thereafter, in October 2006, Christina M. Deal initiated a marriage dissolution
proceeding against Ryan Deal in Traverse County. The same judge is presiding over
both the dissolution proceeding and Ryan Deals criminal proceeding.
In the dissolution proceeding, both parties are seeking custody of T.D. Ryan Deal
claims that he has been the primary caretaker of T.D., and was all four childrens sole
caretaker when Christina M. Deal spent time in jail and substance-abuse rehabilitation
facilities. Ryan Deal sought to depose B.Q., C.Q., and Christina M. Deal in the
dissolution proceeding to support his claim for custody of T.D., and he obtained
subpoenas to compel the attendance of all three at the depositions. Ryan Deal did not
4
attempt to depose E.Q. because E.Q. moved out of state after the dissolution proceeding
began. Ryan Deal asserts that the depositions of B.Q. and C.Q. are necessary for the
resolution of the custody dispute because the childrens observations, testimony and
knowledge concerning the factors considered in custody determinations are unique and
exceptional.
Christina M. Deal filed a motion for a protective order under Minn. R. Civ. P.
26.03, requesting that the district court quash B.Q.s and C.Q.s subpoenas to avoid
subjecting them to oppression, embarrassment, and intimidation. Christina M. Deal
emphasized the importance of protecting B.Q. because of the criminal charges against
Ryan Deal for sexually assaulting B.Q. Alternatively, Christina M. Deal requested that
the court seal the depositions or change the discovery method to a written deposition.
At the same time, the Traverse County Attorney, on behalf of the state, petitioned
to permissively intervene in the marriage dissolution proceeding under Minn. R. Civ. P.
24.02, for the limited purpose of requesting that the district court prohibit Ryan Deal
from taking all three depositions. The state argued that because all three persons are
potential witnesses at Ryan Deals criminal trial, permitting the depositions in the
dissolution proceeding while the criminal trial is pending would allow Ryan Deal to
impermissibly circumvent the criminal discovery rules. The district court, finding the
state did not have an interest in the dissolution proceeding or good cause to stay civil
discovery, denied the states request to intervene and to stay the depositions. But the
court issued a limited protective order precluding Ryan Deal from being present at B.Q.s
and C.Q.s depositions.
5
Christina M. Deal was deposed, but the depositions of B.Q. and C.Q. were
postponed pending appellate review of the district courts intervention and discovery
orders. The state agreed to maintain the sequence of the dissolution and criminal
proceedings until the outcome of the appeal, which would allow Ryan Deal to retain the
opportunity to depose B.Q. and C.Q. in the civil proceeding before the criminal trial if the
district courts orders were affirmed. The state then filed a petition for a writ of
prohibition in the court of appeals to prevent the district court from allowing the
childrens depositions before the completion of Ryan Deals criminal trial. The court of
appeals denied the writ, concluding that the information sought by Ryan Deal in the
depositions was relevant to making a fully informed custody decision as to the best
interests of T.D. Additionally, the court concluded that the interests of B.Q. were
adequately protected because: (1) Ryan Deal was prohibited from being present at the
depositions; (2) B.Q. would be represented by counsel at the depositions; and (3) the
same judge is presiding over both proceedings and so is in an excellent position to
address deposition-related objections as well as any use of deposition-related evidence in
the criminal proceeding.
The state filed a petition for review, asking our court to decide whether a criminal
defendant should be prevented from deposing potential criminal witnesses in a civil
proceeding while a criminal trial is still pending.
I.
The state first argues that it is never appropriate to depose a child whose custody is
at issue in a marriage dissolution proceeding because information concerning the child is
6
normally obtained through custody evaluators, an in-camera interview, and a guardian ad
litem. Custody determinations are governed substantively by Minnesota Statutes chapter
518 and procedurally by the Minnesota Rules of Civil Procedure. See Minn. Stat.
518.005, subd. 1 (2006). Under chapter 518, custody determinations are made based on
the best interests of the child, where the court examines all relevant factors including:
the wishes of the parents and the child; the childs primary caretaker; the relationship
between the child and his or her parents, siblings, and other relevant persons; the childs
adjustment to home, school, and the community; the mental and physical health of the
parents; and the effect on the child of the actions of an abuser. Minn. Stat. 518.17
(2006). Under the Minnesota Rules of Civil Procedure, parties may take depositions
concerning any matter, not privileged, that is relevant to a claim or defense of any
party. Minn. R. Civ. P. 26.01-.02. In a child custody proceeding, matters concerning
the childs best interests would be relevant to the parties claims and defenses, and
therefore proper matters for depositions. Nevertheless, the civil rules are inapplicable to
chapter 518 proceedings insofar as the rules are inconsistent or in conflict with chapter
518. Minn. R. Civ. P. 81.01(a); Minn. R. Civ. P. app. A.
Based on the extensive discovery procedures set out in chapter 518 that detail the
manner in which information can be gained from a child when that childs custody is
being determined, the states argument may have merit with regard to deposing a child
7
whose custody is at issue.1 But the children sought to be deposed in this case are not the
children whose custody is at issue. B.Q. and C.Q. are witnesses with information
possibly relevant to determining the best interests of their half-brother, T.D. We
conclude that the states argument that it is never appropriate to depose a child whose
custody is issue is not applicable to the facts of this case, and we therefore decline to
address it any further.
II.
We next address the states argument that, under Minn. R. Civ. P. 24.02, it had the
right to permissively intervene in the marriage dissolution proceeding for the limited
purpose of requesting a stay of B.Q.s and C.Q.s depositions. The state argues that the
depositions would jeopardize the integrity of Ryan Deals criminal trial by intimidating
and humiliating B.Q., the alleged victim, and C.Q., a potential criminal witness, and by
permitting Ryan Deal to gain access to information pertinent to his criminal trial that goes
1 While chapter 518 does not expressly prohibit a party from deposing a child in a
custody proceeding, it provides extensive procedures for determining the best interests of
the child whose custody is at issue. See Minn. Stat. 518.166 (2006) (permitting the
court to interview the child in chambers to ascertain the childs reasonable preference as
to custodian); Minn. Stat. 518.165, subd. 2a (2006) (providing for the appointment of
a guardian ad litem who is responsible for conducting an independent investigation of the
child, advocating for the childs best interests, and presenting written reports that include
conclusions and recommendations for the child); Minn. Stat. 518.167 (2006) (providing
that the court may order an investigation and report from the county or court services,
which must be made available to the parties and may be received into evidence at the
hearing). The only direct questioning of a child whose custody is at issue appears to be at
a discretionary in-camera interview by the court to determine the childs custodial
preference. See Minn. Stat. 518.166. If such an interview is conducted, the court must
allow the parties counsel to be present and to ask the child reasonable questions. Id.
8
beyond the scope of criminal discovery.
Denials of requests for permissive intervention are generally not appealable.
Norman v. Refsland, 383 N.W.2d 673, 675 (Minn. 1986). But we review such denials
when, as here, they are based on a finding that the applicant had no protectable interest
in the litigation. Thibault v. Bostrom, 270 Minn. 511, 512 n.1, 134 N.W.2d 308, 310 n.1
(1965) (holding that a denial of permissive intervention based on a finding that a party
has no protectable interest in the litigation becomes a final appealable order as to that
party). When reviewed, denial of a request to permissively intervene will be reversed
only when a clear abuse of discretion is shown. SST, Inc. v. City of Minneapolis, 288
N.W.2d 225, 231 (Minn. 1979).
Minnesota Rule of Civil Procedure 24.02, the rule governing permissive
intervention, states in part:
Upon timely application anyone may be permitted to intervene in an action
when an applicants claim or defense and the main action have a common
question of law or fact. * * * In exercising its discretion, the court shall
consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
We have said that [i]t is our policy to encourage intervention wherever possible.
Norman, 383 N.W.2d at 678. In State v. Rud, we recognized the strong public policy
against allowing a criminal defendant to circumvent the limited scope of discovery in the
criminal rules. 359 N.W.2d 573, 578 (Minn. 1984). As discussed below, this policy may
require staying discovery in a civil proceeding to prevent a defendant in a related criminal
proceeding from bypassing the limits on criminal discovery through the use of civil
discovery. See Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962). Moreover, in a
9
civil proceeding there often is no party to assert the publics interest in preventing the
circumvention of the criminal discovery rules. As such, there appears to be a strong
argument that the state should be permitted to intervene in a civil proceeding in order to
assert the publics interest in a pending criminal proceeding.
A conclusion that intervention should be permitted is supported by federal law.
See DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (stating that we look to federal
law for guidance when interpreting our own rules, particularly when the language in the
federal and state rules is identical).2 When a civil proceeding and a criminal proceeding
involve overlapping evidentiary material, federal courts have consistently held that the
government [has] a discernible interest in intervening [in the civil proceeding] in order
to prevent discovery in the civil [proceeding] from being used to circumvent the more
limited scope of discovery in the criminal matter. 3 SEC v. Chestman, 861 F.2d 49, 50
(2d Cir. 1988) (per curiam). This interest in preventing a defendant from bypassing the
limits on criminal discovery should be given substantial weight when ruling on a
petition to intervene. Campbell, 307 F.2d at 487. Further, permitting intervention in a
civil proceeding is particularly appropriate when the state wants to do so for the limited
2 The federal rule and Minnesotas rule for permissive intervention are nearly
identical, except that the federal rule has an additional ground for intervention when a
statute of the United States confers a conditional right to intervene. Fed. R. Civ. P.
24(b); see Minn. R. Civ. P. 24.02.
3 See Pfizer Ireland Pharms. v. Albers Med., Inc., 225 F.R.D. 591, 592 (W.D.Mo.
2004); Bridgeport Harbour Place I, LLC v. Ganim, 269 F. Supp. 2d 6, 10 (D.Conn.
2002); United States v. Banco Cafetero Intl, 107 F.R.D. 361, 364 (S.D.N.Y. 1985); SEC
v. United States Realty & Improvement, 310 U.S. 434, 458-60 (1940).
10
purpose of moving to stay the case during the pendency of the criminal trial. Bridgeport
Harbour Place I, LLC v. Ganim, 269 F. Supp. 2d 6, 8 (D.Conn. 2002). Even in
circumstances where courts have found the connection between the civil and criminal
proceedings to be too weak to merit granting the states request to stay civil discovery,
the states interest has still been deemed strong enough to merit granting the request to
permissively intervene. See United States v. Banco Cafetero Intl, 107 F.R.D. 361, 365
(S.D.N.Y. 1985).
We agree with the rationale in the federal cases concerning the states interest in
intervening in a civil proceeding when a pending criminal proceeding involves
overlapping evidentiary material. In order to protect the integrity of the criminal
proceeding, the state must be given standing in the civil proceeding to assert that interest
on behalf of the public. In this case, the district court denied the states request to
intervene based in part on a finding that there is no common question of law or fact
relating to [the states] role as prosecutor in the criminal case and the issue of custody in
the dissolution case. But, based on Rud and the federal reasoning we now adopt, we
conclude that the state does have an interest in the civil proceeding, and this interest
should be given substantial weight.
The district court also found that allowing the state to intervene would tend to
delay or prejudice the adjudication of custody in the (albeit unlikely) event that the
dissolution is adjudicated prior to the criminal trial. Undue delay or prejudice is a
proper ground to deny permissive intervention. Minn. R. Civ. P. 24.02. But because the
court did not consider the states interest in the civil proceeding, the court could not
11
accurately assess the weight of the possible harm from denying intervention against the
possible delay or prejudice from granting the intervention.
Based on the record before us, we conclude that the state should have been
allowed to permissively intervene in the marriage dissolution proceeding for the limited
purpose of requesting a protective order staying B.Q.s and C.Q.s depositions. The
states interest in protecting the integrity of the criminal proceeding is particularly
weighty when compared to the possible prejudice the stay could cause in the dissolution
proceeding. First, the district court admitted it was unlikely that the civil trial would
occur before the criminal trial, thus minimizing the possibility of any prejudice to Ryan
Deal or the dissolution proceeding. Second, the intervention request was for the limited
purpose of requesting the discovery stay; therefore, the state would not be interfering in
the remainder of the dissolution proceeding. Third, as discussed above, custody
determinations are made largely through investigations by the court, the county, and the
guardian ad litem, which could continue without delay despite the intervention. Based on
the policy underlying limited criminal discovery, the states interests in protecting that
policy, and the limited prejudice that would result from intervention, we conclude that the
states substantial interests weigh heavily in favor of granting its request to permissively
intervene in the dissolution case. We therefore hold that the district court abused its
discretion by denying the states request to permissively intervene in the civil dissolution
proceeding for the limited purpose of requesting a stay of the civil depositions during the
12
pendency of Ryan Deals criminal trial.4
III.
We now turn to the states argument that the district court erred when it denied the
states request to stay the civil depositions of B.Q. and C.Q. during Ryan Deals criminal
trial. A district courts denial of a motion to stay discovery will not be reversed unless
the court abused its discretion, exercised its discretion in an arbitrary or capricious
manner, or based its ruling on an erroneous view of the law. Montgomery Ward & Co.,
Inc. v. County of Hennepin, 450 N.W.2d 299, 306 (Minn. 1990); see also Moylan v.
Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (holding that a reversal based on abuse of
discretion requires a clearly erroneous conclusion that is against logic and the facts on
record). In a civil proceeding, [p]arties may obtain discovery regarding any matter, not
4 The state did not petition to intervene as of right in the dissolution proceeding
under Minn. R. Civ. P. 24.01. There is a four-part test for intervention as of right.
Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986)
(articulating the requirements for intervention as of right under Minn. R. Civ. P. 24.01).
Because the state did not argue that it had the right to intervene in the dissolution
proceeding, we are not addressing this issue. Nevertheless, we note that there is federal
and state case law that supports the states right to intervene in similar cases. See
Schumacher, 392 N.W.2d at 207; see also SEC v. Nacchio, No.
Civ.A05CV00480MSKCBS, 2005 WL 1799372, at *3 (D.Colo. July 28, 2005); SEC v.
Mutuals.com, Inc., No. Civ.A.3:03-CV-2912-D, 2004 WL 1629929, at *2 (N.D.Tex. July
20, 2004) (holding that it was unnecessary to address permissive intervention because the
government could intervene as of right).
We also note that holding that a third party may intervene permissively or as of
right in a civil action to request a stay of civil discovery during a criminal trial that
involves the same evidentiary material does not automatically mean that granting a stay
of civil discovery is warranted in a particular case. The criteria for intervention and for a
protective order staying discovery are distinct and should be kept as such. Compare
Minn. R. Civ. P. 24.01-.02 with Minn. R. Civ. P. 26.03.
13
privileged, that is relevant to a claim or defense of any party. Minn. R. Civ. P. 26.02.
But the court has broad discretion to fashion orders for good cause to protect the parties
or witnesses from annoyance, embarrassment, oppression or undue burden or expense
in the discovery process. Minn. R. Civ. P. 26.03; see also Baskerville v. Baskerville, 246
Minn. 496, 506, 75 N.W.2d 762, 769 (1956). Nevertheless, we have consistently
construed the discovery rules in favor of broad discovery. Larson v. Indep. Sch. Dist.
No. 314, 305 Minn. 358, 363, 233 N.W.2d 744, 747 (1975). As a result, any limitation
on the scope of discovery engrafted on discovery procedures by interpretation must rest
on sound policy grounds. Anderson v. Florence, 288 Minn. 351, 357, 181 N.W.2d 873,
877 (1970) (emphasis added).
Limited discovery in criminal proceedings
In contrast to the civil rules, the criminal rules allow only limited discovery, with a
handful of provisions meant to give the defendant and prosecution as complete
discovery as is possible under constitutional limitations. Minn. R. Crim. P. 9, cmt.5
Unlike a party in a civil proceeding, a criminal defendant is not allowed to take
5 The comment to Minn. R. Crim. P. 9, which is the general discovery rule for
criminal proceedings, states:
Rule 9, with Rules 7.01, 19.04, subd. 6(1) (Rasmussen notice of
evidence obtained from the defendant and of identification procedures),
Rules 7.02, 19.04, subd. 6(2) (Spreigl notice of additional offenses to be
offered at trial), and Rule 18.05, subds. 1 and 2 (recorded testimony of
grand jury witnesses), provide a comprehensive method of discovery by the
prosecution (Rule 9.01) and defendant (Rule 9.02). The rules are intended
to give the defendant and prosecution as complete discovery as is possible
under constitutional limitations.
14
depositions for the purpose of gathering information. State v. Mussehl, 408 N.W.2d 844,
846 (Minn. 1987). Depositions are permitted in a criminal case only upon a showing of
reasonable probability that the witness will be unavailablei.e., the rule allows
depositions not for discovery purposes but to preserve testimony. Rud, 359 N.W.2d at
578 n.1; see also Minn. R. Crim. P. 21.01. The purpose behind this limiting rule is to
prevent harassment of states witnesses and law enforcement officers, to reduce delays in
the criminal process, and to avoid the possible chilling effect on the willingness of
witnesses to come forward. 8 Henry W. McCarr & Jack S. Nordby, Minnesota
PracticeCriminal Law and Procedure 16.18 (3d ed. 2001).
We have also stated that a criminal defendant should not be permitted to
circumvent the limited scope of discovery in the criminal proceeding by attempting to use
civil-like investigatory tools. Rud, 359 N.W.2d at 578. In Rud, a defendant who was
charged with criminal sexual conduct attempted to call the child victim to testify at the
probable cause hearing. Id. at 575. We held that calling the child to testify was not
permitted, as the probable cause hearing should not be used as a substitute for disclosure
and discovery. Id. at 578. We went on to state that the legitimate concern of the
defendant to know the case against him before trial should be dealt with by other
means. Id. (quoting State v. Florence, 306 Minn. 442, 450, 239 N.W.2d 892, 898
(1976)). These other means are the limited discovery methods provided for in the
criminal rules, which we emphasized do not provide for discovery depositions. Id. at n.1;
Mussehl, 408 N.W.2d at 846.
While we have stated our policy against allowing criminal defendants to bypass
15
criminal rules that limit the discovery methods available to them, we have not yet
addressed the implications of this policy on civil discovery when pending civil and
criminal proceedings involve overlapping evidentiary material. That is the question
presented here. Therefore, we must now determine the application of our limitation on
criminal discovery to a criminal defendants use of civil discovery when the defendants
pending civil and criminal proceedings involve overlapping evidentiary material.
The effect of a pending criminal trial on related civil discovery
Because we have not yet determined the applicability of the policy set forth in Rud
to a civil proceeding that is related to a pending criminal proceeding, we look to federal
case law for guidance, particularly because our rules on staying civil discovery mirror
the federal rules.6 Rud, 359 N.W.2d at 578 n.1; see DLH, 566 N.W.2d at 69 (stating that
the federal rules are instructive on interpreting the Minnesota rules, especially when the
relevant language of the state and federal rules is identical). Federal courts have
consistently held that there is good cause to issue a protective order staying civil
discovery when a related criminal proceeding is pending in order to prevent the
defendants use of broad civil discovery to sidestep the much more limited discovery
available in the criminal proceeding. See e.g., Peden v. United States, 512 F.2d 1099,
6 The discovery provisions found in Minn. R. Civ. P. 26 are adapted from Fed. R.
Civ. P. 26, and the authorities construing the federal rule should be given full weight to
the extent applicable. Minn. R. Civ. P. 26 advisory comm. cmt. 2000 amendments
(emphasis added). The criminal rules are also modeled after the federal rules, and,
specifically, Minn. R. Crim. P. 21.01, governing the limited taking of depositions in a
criminal trial, is adapted from Fed. R. Crim. P. 15., see Minn. R. Crim. P. 21, cmt., and
mirror[s] the federal rule, Rud, 359 N.W.2d at 578 n.1.
16
1103 (Ct. Cl. 1975) ([I]t has long been a practice to freeze civil proceedings when a
criminal prosecution involving the same facts is warming up or under way.). The
reasoning supporting such a stay is based on the distinctly different policies and
objectives that support the civil and criminal rules. Campbell, 307 F.2d at 487. While
broad discovery is encouraged in civil proceedings, the federal courts identify three
policy considerations peculiar to criminal law that justify the narrow scope of
discovery in criminal proceedings:
First, there has been a fear that broad disclosure of the essentials of the
prosecutions case would result in perjury and manufactured evidence.
Second, it is supposed that revealing the identity of confidential
government informants would create the opportunity for intimidation of
prospective witnesses and would discourage the giving of information to
the government. Finally, it is argued that since the self-incrimination
privilege would effectively block any attempts to discover from the
defendant, he would retain the opportunity to surprise the prosecution
whereas the state would be unable to obtain additional facts. This
procedural advantage over the prosecution is thought to be undesirable in
light of the defendants existing advantages. The validity of each of these
objections must be appraised in each of the situations in which the
defendant may seek discovery and must be weighed against the importance
to the defendant of the disclosure.
Id. (quoting Developments in the Law-Discovery, 74 Harv. L. Rev. 940, 1052 (1961)).
Because of the policies behind the narrower scope of criminal discovery, federal
courts have held that [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
17
for the use in his criminal trial.7 Bd. of Governors of Fed. Reserve Sys. v. Pharaon, 140
F.R.D. 634, 639 (S.D.N.Y. 1991); see also Afro-Lecon, Inc. v. United States, 820 F.2d
1198, 1203 (Fed. Cir. 1987) (concluding that the opportunity to use civil discovery may
present an irresistible temptation to use that discovery to ones advantage in the criminal
case). To prevent the circumvention of the criminal discovery rules through a civil
proceeding, [j]udicial discretion and procedural flexibility should be utilized to prevent
the rules and policies applicable to one suit from doing violence to those pertaining to the
other. Pharaon, 140 F.R.D. at 619. One federal court has held that a failure to recognize
the effect of a pending criminal proceeding on the civil proceeding is a fatal defect in a
7 As stated by one court:
There is a clearcut distinction between private interests in civil litigation
and the public interest in a criminal prosecution, between a civil trial and a
criminal trial, and between the Federal Rules of Civil Procedure and the
Federal Rules of Criminal Procedure. But these distinctions do not mean
that a civil action and a criminal action involving the same parties and some
of the same issues are so unrelated that in determining good cause for
discovery in the civil suit, a determination that requires the weighing of
effects, the trial judge in the civil proceeding should ignore the effect
discovery would have on a criminal proceeding that is pending or just about
to be brought. The very fact that there is clear distinction between civil and
criminal actions requires a government policy determination of priority:
which case should be tried first. Administrative policy gives priority to the
public interest in law enforcement. This seems so necessary and wise that a
trial judge should give substantial weight to it in balancing the policy
against the right of a civil litigant to a reasonably prompt determination of
his civil claims or liabilities.
Campbell, 307 F.2d at 487.
18
district courts holding.8 Campbell, 307 F.2d at 483.
Our review of federal case law requiring courts to consider the effect of a criminal
trial on discovery in a pending civil proceeding when the matters share overlapping
evidentiary material leads us to the conclusion that the rationale behind the federal law is
consistent with our holding in Rud and the policies behind our criminal discovery rules.
Prohibiting a defendant from taking a discovery deposition in a criminal proceeding, only
to allow him to take the same investigatory deposition through a related civil proceeding,
would contravene the aforementioned policies behind the criminal discovery rules.
Maintaining the integrity of a criminal proceeding by preventing circumvention of the
criminal discovery rules is a sound policy ground[] that justifies narrowing the
generally broad civil discovery rules. See Anderson, 288 Minn. at 357, 181 N.W.2d at
877. This policy can provide good cause to issue a protective order staying civil
discovery. Minn. R. Civ. P. 26.03. As a result, we conclude that a court must consider
the possible damaging effect of allowing civil discovery when such discovery includes
information relevant to a pending criminal proceeding. Further, a courts failure to
consider this issue may be considered a fatal defect in the courts ruling.
Balancing test to be applied when determining whether a civil discovery stay is
appropriate pending the resolution of a related criminal trial
To determine whether a stay is appropriate in a particular case, we conclude that a
8 Some courts have gone so far as to stay the entire civil proceeding instead of just
discovery, concluding that deferrable civil proceedings constitute improper
interference with the criminal proceedings if they churn over the same evidentiary
material. Afro-Lecon, 820 F.2d at 1204 (quoting Peden, 512 F.2d at 1103).
19
district court should balance the interests of litigants, nonparties, the public, and the
court itself. Ganim, 269 F. Supp. 2d at 8. We also conclude that [b]alancing these
interests is a situation-specific task, and an inquiring court must take a careful look at the
idiosyncratic circumstances of the case before it. Microfinancial, Inc. v. Premier
Holidays Intl., Inc., 385 F.3d 72, 78 (1st Cir. 2004) (emphasis added). When making its
determinations, a court should consider factors such as: (1) the extent to which the
evidentiary material in the civil and criminal cases overlap; (2) the status of the criminal
proceeding; (3) the interests of any parties in staying the civil proceeding; (4) the
prejudice to any parties from staying the civil proceeding (4) the interests of persons that
are not parties to the litigation; (5) court convenience; and (6) the public interest in the
pending civil and criminal actions. Id.; Maloney v. Gordon, 328 F. Supp. 2d 508, 511
(D.Del. 2004); Ganim, 269 F. Supp. 2d at 8.
We emphasize the strong government and public interest in the integrity of a
criminal proceeding that must be part of this balancing testintegrity that may be
compromised by a defendants access to the broad scope of civil discovery. See
Campbell, 307 F.2d at 487; Maloney, 328 F. Supp. 2d at 513. The more the issues
overlap in the civil and criminal proceedings, the more likely that allowing civil
discovery will jeopardize the integrity of the criminal proceeding. See Afro-Lecon, 820
F.2d at 1202-3; see also Maloney, 328 F. Supp. 2d at 511. Further, because court
convenience deserves substantial weight, Microfinancial, 385 F.3d at 78, [t]he
potential dispositive or clarifying effect of the resolution of [the] criminal case on the
civil proceeding also may weigh in favor of a stay. Audrey Stramos, Parallel
20
Proceedings in Securities Enforcement: Procedural and Constitutional Issues, 741
PLT/Corp 239, 246 (1991) (citing Milton Pollack, Parallel Civil and Criminal
Proceedings, 129 F.R.D. 201, 203 (1989)). Finally, the length of time of the stay is a
factor in considering the prejudice to the party opposing the stay. Risk of prejudice is
lessened after the criminal indictment because of the requirement of a speedy trial, which
limits the duration of the stay. Pollack, supra at 203. A court should be flexible when a
stay of civil discovery is requested under these circumstances, and should use its
discretion to protect the strong public interest in the integrity of the criminal proceedings
while also examining the possible countervailing interests that may be present in both the
civil and criminal proceedings.
Did the district court err by failing to apply the balancing test when determining
whether to stay civil discovery?
In this case, the district court found that there was no common question of law or
fact relating to the states role as prosecutor in the criminal proceeding and the marriage
dissolution. Further, the court concluded that Ryan Deals potential motivation to use the
civil depositions to access information beyond the scope of criminal discovery was not
good cause to stay the depositions. But the court made its findings without the benefit
and guidance of this opinion and therefore did not consider the various interests that
should be balanced when determining whether a stay should be granted. We therefore
conclude that the district court erred when it did not apply a balancing test to determine
whether to stay the depositions of B.Q. and C.Q.
21
Application of the balancing test to the facts of this case
Having concluded that the district court erred by not applying a balancing test
when determining whether a discovery stay was appropriate, we now consider whether,
by applying the balancing test, as set forth above, to the facts of this case, the record
favors a stay of B.Q.s and C.Q.s depositions. At the outset, the policy interest in
protecting the integrity of the criminal proceeding is particularly strong in this case for
numerous reasons. First, Ryan Deal appears to admit that he intends to use the civil
discovery depositions to gain information relevant to his criminal trial.9 Second, a
determination of whether Ryan Deal sexually assaulted B.Q. is relevant to what custody
award is in the best interests of T.D.10 The clarifying effect of Ryan Deals criminal case
on the custody proceeding therefore weighs in favor of a stay, especially because a
conviction may well have a dispositive effect.
9 Ryan Deal states that the motion to stay discovery was requested with the intent
and purpose of precluding [Ryan Deal] the opportunity to hear the allegations and
testimony of [Christina Deals] minor child under oath, in open Court, subject to cross
examination, in advance of the criminal jury trial, so that the Traverse County Attorney
can conduct the trial by surprise. If the dissolution trial is postponed, I will be unable to
have the benefit of what is otherwise my right granted by this dissolution court, that is to
take the testimony of [Christina Deals] minor daughter/alleged victim before the
criminal trial is held (emphasis added). Ryan Deal also made clear to the court that he
intended to question both children about the alleged sexual abuse.
10 One factor in the best interests analysis used to determine child custody is the
effect on the child of the actions of an abuser. Minn. Stat. 518.17 (2006).
22
Additionally, because B.Q. is a minor and an alleged victim of sexual assault by
Ryan Deal, the risk of intimidating or harassing her is particularly high.11 Both the state
and the public have an interest in preventing such harassment and intimidation.12 Even if
Ryan Deal is not present during the deposition, questioning B.Q. about the abuseand
any other topics that may lead to discoverable evidencecould place B.Q. in severe
distress.13 B.Q.s possible distress also places the criminal trial in jeopardy because [i]n
the investigation and prosecution of most sexual assault cases, the role of the victim is
much more important than in other crimes since the victim is usually the sole witness to
the crime. First Response, supra note 13.
We conclude that the risk of compromising the testimony of B.Q. is substantial. A
child victim of abuse is often reluctant to testify against the family member who abused
her; she may be unable to give consistent, spontaneous, and detailed reports of her
11 Child victims of sexual abuse suffer from a range of psychological problems that
include depression, anxiety, guilt, fear, sexual dysfunction, withdrawal, and acting out.
American Psychological Association, Understanding Child Sexual Abuse: Education,
Prevention, and Recovery, http://www.apa.org/releases/sexabuse/effects.html; Veronica
Serrato, note, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses,
68 B.U. L. Rev. 155, 159 (1988).
12 This court has made clear that the state has a compelling interest in
safeguarding the physical and psychological well-being of a minor [victim of a sex
crime]. State v. McRae, 494 N.W.2d 252, 258 (Minn. 1992) (quoting Globe
Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 607-08
(1982).
13 Whereas most crime victims find it difficult to discuss their victimization, sexual
assault victims find it especially painful. First Response to Victims of Crime,
Department of Justice, (2001), http://www.ojp.gov/ovc/ publications/ infores/ firstrep/
2001/vicsexaslt.html (hereinafter First Response).
23
sexual abuse; she is often frightened, anxious, and ambivalent about testifying against
the once trusted adult who abused her; and she is particularly vulnerable during crossexamination.
Serrato, supra note 11, at 159. Because B.Q.s testimony will likely be
crucial in Ryan Deals criminal trial, and because victims like B.Q. are often fragile and
frequently have trouble testifying at trial, special care should be taken to ensure that any
existing difficulties are not compounded by subjecting victims like B.Q. to a civil
deposition before the criminal trial.
We also note that while C.Q. is not an alleged victim, the states other interests
weigh in favor of staying his deposition. The chance of jeopardizing the criminal trial by
allowing C.Q.s deposition remains high because C.Q. lived in the home with B.Q. where
the alleged criminal sexual conduct was said to have occurred; thus, C.Q. likely has
information relevant to the criminal charges against Ryan Deal. We also note that Ryan
Deal asserts that he was the caretaker of all four children when Christina M. Deal was
incarcerated or in rehabilitative facilities. The criminal charges allege that some of the
incidents of criminal sexual conduct occurred when Christina M. Deal was out of the
home due to incarceration or rehabilitation. Therefore, the overlap of the relevant time
periods between the civil and criminal proceedings makes C.Q.s testimony concerning
Ryan Deals caretaking likely relevant to the criminal proceeding.
Despite the strong interests of the state, the public, B.Q., C.Q., and the court that
weigh in favor of a stay, there is also a strong interest in promptly determining what
custody will serve the best interests of T.D. We recognize that both B.Q. and C.Q. may
have information that is relevant to accurately determining what custody award will serve
24
T.D.s best interests. While we give substantial weight to the need for custody
determinations to be prompt and accurate, numerous factors in this case mitigate the
potential harm from staying the discovery depositions. Ryan Deals criminal trial is set
in the near future so the stay would be limited in duration, thus minimizing the chance of
harm to T.D. or prejudice to Ryan Deal. Also, as discussed above, all other
investigations in the custody proceedingsby the court, the county, and the guardian ad
litemcould continue during the stay and provide the information that is needed for the
court to conduct the best interests analysis. A temporary custody order is also an option
during the pendency of the dissolution proceeding and can be modified during the
proceedings, Minn. Stat. 518.131 (2006), so the parties can petition the court for
temporary custody or visitation of T.D. pending the final disposition of the dissolution
proceeding.
Having balanced the various interests outlined above, particularly the strong
policy of preventing circumvention of the criminal discovery rules, we conclude that the
integrity of Ryan Deals criminal proceeding would be jeopardized if the depositions of
B.Q. and C.Q. were permitted to occur before the completion of Deals upcoming
criminal trial. Here, the potential harm to Ryan Deal and T.D. is limited but the prejudice
to the integrity of the criminal proceeding is considerable. Therefore, we conclude that
application of the balancing test weighs heavily in favor of a stay until the completion of
the criminal trial. Accordingly, we hold that the district court abused its discretion when
it denied the states request to stay the depositions of B.Q. and C.Q.
25
IV.
We have held that the district court erred when it denied that states petition to
intervene in the dissolution action for the limited purpose of requesting a stay of the
depositions during the pendency of Ryan Deals criminal trial. We have also held that
the district court abused its discretion when it failed to apply the balancing test to
determine whether a stay was appropriate in this case. Finally, we held that because the
balancing test weighs heavily in favor of staying the depositions of B.Q. and C.Q., the
district court abused its discretion when it denied the states request to stay the
depositions during the pendency of Ryan Deals criminal trial. We must now determine
whether issuing a writ of prohibition is an appropriate remedy for the district courts error
in denying the states request to stay the depositions of B.Q. and C.Q. When determining
whether to grant a writ, we must adhere to the law governing the subject of the writ. In
re Giblin, 304 Minn. 510, 516 n.3, 232 N.W.2d 214, 218 n.3 (1975). Denials of requests
to stay discovery are reviewed under an abuse of discretion standard. Montgomery Ward,
450 N.W.2d at 305-06.
A writ of prohibition is an extraordinary remedy that may be issued if:
(1) an inferior court or tribunal [is] about to exercise judicial or quasijudicial
power; (2) the exercise of such power [is] unauthorized by law; and
(3) the exercise of such power [will] result in injury for which there is no
adequate remedy.
Schumacher, 392 N.W.2d at 208 (citations omitted). A writ is a preventative, not a
corrective, measure, and if normal appeal procedures could rectify any errors, a writ is
generally not appropriate. Giblin, 232 N.W.2d at 218 n.4. We have issued writs for
26
numerous reasons, including: (1) when, as the court of appeals recognized, the court has
ordered the production of information clearly not discoverable and there is no adequate
remedy at law; (2) to prevent abuse of discretion where there is no other adequate
remedy at law[;] (3) when [the writ] will settle a rule of practice affecting all litigants,
Wasmund v. Nunamaker, 277 Minn. 52, 55, 135 N.W.2d 577, 579 (1967); and (4) to
correct an error of law in the lower court where no other adequate remedy is available to
the petitioner and enforcement of the trial courts order would do irreparable harm, State
v. Turner, 550 N.W.2d 622, 626 (Minn. 1996).
In Schumacher, we held that when the district court denied an intervening media
members request to quash the district courts order sealing files in a wrongful death
action, the intervener properly challenged the pre-trial order by seeking a writ of
prohibition from the court of appeals. 392 N.W.2d at 207. Holding that the district court
erred when it sealed the wrongful death files, we granted the writ because we concluded
that time is of the essence in most cases involving access to court files, making an
appeal an inadequate remedy and the issuance of a writ necessary to prevent irreparable
harm to the intervener. Id. at 208. Here, we previously concluded that the state should
have been permitted to intervene in the dissolution proceeding. Hence, as in
Schumacher, a writ was properly sought by the state to challenge the district courts pretrial
discovery order denying the states request to stay the depositions. Further, absent a
stay of the civil depositions before Ryan Deals criminal trial, an appeal would provide
no remedy to the state because the harmallowing Ryan Deal to compromise the
integrity of the criminal trial by going beyond the scope of criminal discoverywould
27
already have occurred. We therefore conclude that, like in cases involving access to
court files, time is of the essence when the state requests to stay discovery in a civil
proceeding that involves overlapping evidentiary material with a pending criminal
proceeding. Further, a district courts erroneous ruling on the states request to stay
discovery may do irreparable harm to the state and the criminal trial if the ruling is left to
be reviewed through normal appellate procedures.
Because we hold that the district court abused its discretion when it did not apply a
balancing test before denying the states request to stay civil discovery, and because we
conclude that the state has no adequate remedy at law, we hold that the court of appeals
erred when it denied the states request for a writ of prohibition. Therefore, we grant the
states request for a writ preventing the district court from allowing Ryan Deal to depose
B.Q. and C.Q. during the pendency of Ryan Deals criminal trial.
Reversed.
 

 
 
 

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