Determining how to proceed in response to a
civil litigant's request for accommodation of his or her Fifth Amendment
privilege against self-incrimination is a matter within the discretion of the
district court. Francis v. Wynn Las
Vegas, 127 Nev. Adv. Op. 60 (October 6, 2011). Therefore, a lift of a of a stay civil
proceedings made in connection with such a request is similarly within this court’s
discretion. Federal Sav. and Loan
Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989). "The Fifth Amendment privilege against
self-incrimination may be invoked in both criminal and civil proceedings."
Francis, 127 Nev. Adv. Op. 60 (October 6, 2011).
When parallel civil and criminal actions arising
from the same transactions or issues have been instituted, a court is faced
with a dilemma. On the one hand, a parallel civil proceeding can vitiate the
protections afforded the accused in the criminal proceeding if the prosecutor
can use information obtained from him through civil discovery or testimony
elicited in the civil litigation. This also may cause him to confront the prospect of divulging information which may incriminate him. On
the other hand, the pendency of a parallel criminal proceeding can impede the
search for truth in the civil proceeding if the accused resists disclosure and
asserts his privilege against self-incrimination and thereby conceals important
evidence. Milton Pollack, Sr. J., U.S. Dist. Ct., S.D.N.Y., Parallel Civil
and Criminal Proceedings, 129 F.R.D. 201, 202 (Oct. 17-19, 1989).
