For a corporate executive or entity, there is no greater legal “nightmare scenario” than being in the center of a pincer movement: a Department of Justice (DOJ) investigation on one side and a massive civil action on the other. In the legal world, these are “parallel proceedings.” While they arise from the same facts or conduct, they operate under vastly different rules. Navigating this intersection requires more than just legal knowledge—it requires a trial-ready strategy where a “win” in one arena doesn’t lead to a “catastrophe” in the other.

The Strategic Stay: Timing is Everything

The first line of defense is typically seeking a stay—pausing the civil discovery process until the criminal investigation is resolved.  This stay is functionally a “time-out” which allows the defense to focus exclusively on the criminal matter without the constant threat of having to plead the Fifth Amendment during a civil deposition, which could jeopardize their standing in both cases. Securing a stay is not a check-the-box exercise; it is an art form. It requires convincing a civil judge that the defendant’s constitutional rights outweigh the plaintiffs’ interest in a speedy resolution.

At Keller Anderle Scolnick, our team—including former high-ranking federal prosecutors and federal and state public defenders—knows how to communicate with both the DOJ and the courts to manage this timing to our client’s maximum advantage.

Jurisdiction: Where the Rules of War Change

If a stay is denied, the strategy must pivot instantly based on the venue. The “protections” available to you are not uniform; they are dictated by geography.

  • The Ninth Circuit (Western U.S.): In the Ninth Circuit, the “protective order”—an order entered by the court in the civil case that makes certain documents produced in discovery confidential—offers little actual protection. Under In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes (1995), grand jury subpoenas supersede civil protective orders. If you produce it in civil discovery, the prosecution can likely get a copy.  In jurisdictions like the Ninth Circuit, defendants must consider aggressively invoking the Fifth Amendment in discovery to avoid the risk of waiving their rights in the criminal case.
  • The Second Circuit (New York/Mid-Atlantic): Conversely, the Second Circuit largely prevents federal prosecutors from obtaining material produced under a civil protective order. (In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991.) Here, a defendant can mount a more substantive defense in civil litigation without handing the government a roadmap for indictment.

The Adverse Inference: California’s Split Personality

Perhaps the most dangerous trap lies in how a jury views your silence. Even within California, the rules depend on which court your civil case happens to be in:

  • Federal Court: Jurors are generally permitted to draw an adverse inference from a defendant’s invocation of the Fifth Amendment (Keating v. Office of Thrift Supervision). The jury can literally be told to assume the worst any time a witness invokes their Fifth Amendment rights.
  • California State Court: State law is far more protective, prohibiting jurors from speculating that a defendant’s silence equals guilt, prohibiting attorneys from commenting if a witness or party invokes their Fifth Amendment rights, and even preventing attorneys from calling witnesses to have those witnesses invoke their Fifth Amendment rights in front of the jury. (Victaulic Co. v. American Home Assurance Co.).

Knowing the entirety of the terrain – from how to handle discovery to having evidence, experts, and witnesses ready to combat an “empty chair” argument at trial – can be the difference between a defense verdict and a ruinous judgment.

The Boutique Advantage

Parallel proceedings are the ultimate test of a law firm’s agility. Large, multi-practice firms often suffer from “siloing”—the white-collar team and the civil litigators might barely speak the same language, much less communicate sufficiently to form a cohesive defense strategy. Their strategy is often a “marriage of convenience” rather than a holistic defense.

At Keller Anderle Scolnick, we are a trial boutique. Our lawyers are experts in both white-collar and commercial matters.  We don’t just “manage” cases; we prepare them for the courtroom from day one. Whether we are securing an acquittal or a defense verdict in a major class action, we see the whole board.

Facing a dual-front legal war? You need more than a lawyer; you need a strategist. Bring us your toughest case. We’ll get the job done.