CASE No. 92-TSC-3

In the Matter of

RICHARD GRIFFITH
    Complainant,

    v.

LASSER MUNICIPAL UTILITY DISTRICT
    Respondent

   This case concerns a complaint filed by Richard Griffith under the so-called whistle-blower provisions of the Toxic Substances Control Act (the Act). In brief, the complainant asserts that the Lassen Municipal Utility District (LMUD or respondent) took retaliatory actions against him in violation of the provisions of 15 U.S.C. §2622.

    The complainant filed a timely complaint under the Act on October 2, 1991. The complaint was investigated by the Employment Standards Administration of the Department of Labor, and on November 1, 1991, Richard Newton, Assistant District Director of the Employment Standards Administration, notified LMUD that the investigation indicated that LMUD's termination proceedings against the complainant were in violation of the Act. LMUD was therefore directed either to stop the termination proceedings and pay Griffith's reasonable attorney's fees or to file a request for a hearing with the Office of Administrative Law Judges. Thereafter, LMUD filed a timely

request for hearing and the matter was transferred to the Office of Administrative Law Judges.

    During a telephone conference call on December 12, 1991, the complainant, who was not then represented by counsel, verbally waived his right to an expedited hearing so that he could obtain additional time in which to obtain counsel. In order to allow the complainant sufficient time to find an attorney to represent him, the hearing date was set for February 5, 6 and 7, 1992. Subsequently, the complainant obtained counsel and in a telephone conference held on January 7, 1992, counsel for the complainant requested that the hearing be postponed for 60 days in order to allow him sufficient time in which to conduct discovery and reply to the respondent's discovery requests. Accordingly, on February 3, 1992, the hearing was continued until April 13-16, 1992.

    On February 26, 1992, the respondent moved for summary judgment against the complainant on the grounds that the complainant had "deliberately caused numerous violations of the Toxic Substances Control Act and adopted regulations.. Shortly thereafter there was a conference call in which counsel for the parties indicated that they had been conducting settlement negotiations and that they wanted to again postpone the scheduled hearing and to extend deadlines for compliance with discovery requests by 30 days. As a result of that conference call, the discovery and motion deadlines were suspended, the hearing was indefinitely postponed, and it was agreed there would be a status call in early April to establish new deadlines and a hearing date if the settlement negotiations were unsuccessful. Subsequently, both parties filed written stipulations agreeing to the suspension of deadlines and the claimant again waived his right to an expedited hearing.

    In a conference call held on April 8, 1992, course, parties reported that settlement negotiations had been unsuccessful and that LMUD had directed its counsel to seek to have the complainant criminally prosecuted for having trespassed on LMUD property and taken allegedly contaminated oil from LMUD transformers. Counsel for the complainant argued that in view of the danger of possible criminal prosecution of his client, the complainant would run the risk of incriminating himself it he were to respond to discovery requests in this proceeding or submit an affidavit in opposition to LMUD's motion for summary judgment. In view of the issues raised by the possibility of criminal prosecution of the complainant, counsel for the complainant was given the opportunity to file a written motion for stay.

    In a motion for stay dated April 16, 1992, counsel for the complainant briefly described a history of legal skirmishes between LMUD, on the one hand, and the complainant and

Phillip Skaggs, on the other. Various exhibits documenting these skirmishes were attached to the motion. It was then argued that LMUD's initiation of a criminal complaint against the complainant was related to the fact that the complainant and Skaggs had recently been successful in having a state court reject the respondent's attempt to recover punitive damages in an ongoing state court civil action that the respondent brought against Skaggs and the complainant. The complainant's motion further argued that pursuant to the decision in Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), a pending civil action must be stayed if, as is alleged in tints case, a party's participation in the discovery process will require the party to provide testimony or other information that may be used in a criminal proceeding against that party.

    In a reply to the complainant's motion, the respondent stated that it has no objection to staying further proceedings in this case until the Lassen County District Attorney completes an investigation of the complainant's activities and issues a written statement concerning his intentions regarding the possible prosecution of the complainant. However, the respondent also argued that certain portions of the complainant's memorandum of points and authorities in support of the motion for stay should be struck from the record on the grounds that they are irrelevant and otherwise in violation of the rules of evidence set forth at 29 C.F.R. §18.101 et seq.

    1. Motion for Stay

    It is well settled that the Fifth Amendment right against self-incrimination applies in civil proceedings as well as criminal proceedings. Lefkowitz v. Cunningham, 431 U.S. BUT, 805 (1977). It is also widely recognized that this right may be invoked on the basis of even a mere possibility that the evidence being sought could be used for purposes of criminal prosecution. Matter of Seper, 705 F.2d 1499, 1501 (9th Cir. 1983). In this case, it is clear from the information submitted by the respondent in support of its motion for summary judgment that there is at least a possibility that evidence the claimant may provide in discovery could be used to prosecute the claimant for a crime. Indeed, the central focus of the respondent's defense in this case, which it seeks to bolster through discovery from the claimant, is the contention that the complainant acted illegally by trespassing onto the respondent's property and taking oil from transformers owned by the respondent. Therefore, I find that the complainant has valid grounds for invoking his Fifth Amendment right against self-incrimination during the discovery phase of this proceeding.

    On at least one occasion the Ninth Circuit has held that a plaintiff's invocation of her right against self-incrimination during discovery provides a basis for dismissing the plaintiff's case entirely. See Lyons v. Johnson, 415 F.2d 540 (9th Cir. 1969). However, the Ninth Circuit later rejected the reasoning of that decision and indicated that it is improper to dismiss a case merely because the plaintiff has properly invoked his or her right against self-incrimination during the discovery process. Campbell v. Gerrans, 592 F.2d 1054 (1979). See also 8 C. Wright & A. Miller, Federal Practice and Procedure, §2018 at 147-48. As pointed out by the complainant, The Fifth Circuit in the Wehling decision, supra, held that in such circumstances it may be necessary to stay the civil action until the potential criminal prosecution is resolved. I find the reasoning of the court in Wehling to be persuasive and fully applicable to the facts of this case. Accordingly, I conclude that all discovery in this case should be stayed until such time as any possible criminal charges against the complainant are resolved or, alternatively, the complainant decides that he no longer wishes to invoke his right against self-incrimination in connection with tints proceeding. I further find that the deadline for the complainant's response to the respondent's motion for summary judgment should also be extended to definitely, in view of the fact that the complainant could not submit an affidavit in opposition to that motion without forfeiting his right against self-incrimination.

    It is noted that the respondent has suggested that any order imposing a stay in this proceeding be conditioned on a requirement that the complainant not invoke his privilege against self-incrimination if in the future the District Attorney in Lassen County issues a written statement expressing his intention not to prosecute the complainant. This suggestion is premature. Although the District Attorney could conceivably issue a written statement that would be sufficient to insure that the complainant will not be prosecuted, such a statement might also be so conditional or limited in its scope that there ma, still remain a possibility that the claimant could be prosecuted. If so, the complainant would still have the right to invoke his Fifth Amendment privilege against self-incrimination.

    2. Motion to Strike

    The respondent has moved to strike various portions of the complainant's memorandum of points and authorities in support of the motion for stay. The respondent alleges that these portions of the memorandum are irrelevant to the motion for stay and contrary to various rules of evidence set forth at 29 C.F.R. §18.101 et seq.

The material that the respondent seeks to have struck consists of (1) allegations that the respondent is seeking to have the complainant criminally prosecuted for vindictive reasons, (2) information about a grand jury indictment of a consultant hired by LMUD, (3) material concerning California OSHA citations against the respondent, (4) the complainant's contention that LMUD has violated the Toxic Substances Control Act and illegally took a statement from him, (5) information about a civil action the respondent filed against the complainant and Skaggs, (6) allegations suggesting that LMUD and the Lessen County District Attorney are working in concert, and (7) various exhibits relating to these subjects.

    Specific rules of procedure for cases under the Toxic Substances Control Act and similar laws are set forth at 29 C.F.R. Part 24. This regulation provides in part that Uformal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidenceavailable shall be applied. The administrative Law Judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious." 29 C.F.R. §24.5(e). Thus, the various rules of evidence cited by the respondent as grounds for striking the designated portions of the complainant's memorandum of points and authorities are inapplicable in this case. Nonetheless, under the provisions of 29 C.F.R. §25.5(e) portions of the complainant's memorandum of points and authorities may be excluded if they are immaterial, irrelevant or repetitious.

    I find that the portions of the memorandum of points and authorities which the respondent seeks to have struck from the record are in fact irrelevant to any determination concerning a stay in this proceeding. Accordingly. this material was not considered in ruling on the complainant's motion for stay. However, most if not all of this information is relevant to the substantive issues in this case. Therefore, should this matter ultimately proceed to a hearing, the complainant will be given the opportunity to submit such information into evidence, subject to any objections the respondent may raise at that time.

    For the reasons set forth above, this proceeding is stayed until such time as the possible criminal charges against the complainant are resolved, or, alternatively, the complainant no longer wishes to invoke his right against self-incrimination in connection with this proceeding. Since the complainant initiated the motion for stay, he is deemed to have waived his right to an expedited hearing. The parties are hereby ordered to promptly notify

the undersigned at such time as the District Attorney in Lassen County makes any determination concerning the possible filing of criminal charges against the complainant.

      Paul A. Mapes
      Administrative Law Judge

Dated: JUL 28 1992
San Francisco, California