United States District Court, S.D. West Virginia
January 5, 2017
CHRISTINE BLANDA, Plaintiff,
MARTIN & SEIBERT, L.C., and WALTER M JONES, III, ESQ., and GEOFFREY A. HADDAD, ESQ., and MICHAEL M. STEVENS, ESQ., and E. KAY FULLER, ESQ., and SUSAN R. SNOWDEN, ESQ., and NIKKI MOORE GRESS, individually, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
is a motion to stay civil proceedings pending conclusion of
related criminal proceedings, filed by defendants on February
following facts are taken from plaintiff's complaint.
Plaintiff Christine Blanda worked as an accounts receivable
clerk at the defendants' law firm, Martin & Siebert,
L.C. (“Martin & Seibert”), in Martinsburg,
West Virginia, from 2005 until January 26, 2015. Pl. Compl.
¶ 4. She claims that, on January 26, 2015, defendants
fired her because she complained to her supervisor about the
firm's “excessive and unjustified billings to
publicly traded companies, ” and because she
“cooperat[ed] with other professionals to bring to the
attention of the FBI the mail and wire fraud being committed
by Defendant in the course of its billing practices.”
Id. at ¶ 5. She helped
“non-law-enforcement professionals” in their
investigation of the firm's billing practices during her
employment there. Id. at ¶ 8. On November 17,
2015, several months after she had been fired, the FBI
executed a search warrant “to determine whether and the
extent to which the Defendant had violated the mail and wire
fraud statutes by billing publicly traded companies for hours
that were not actually worked.” Id. at ¶
7. Plaintiff also claims that some of the defendants have
threatened her, along with other whistleblowers, by telling
third parties of a plan to “mount a campaign to destroy
them.” Id. at ¶ 9.
claims arise from several federal statutes and state tort
law. In particular, she sued under 15 U.S.C. §
78u-6(h)(1)(A)i-iii, which protects whistleblowers from being
fired for giving lawful assistance to the Securities and
Exchange Commission; under 18 U.S.C. § 1513(e), which
prohibits any harmful retaliation against persons for
“providing to a law enforcement officer any truthful
information relating to the commission or possible commission
of any Federal offense”; and under 18 U.S.C. §
1514A(a), which prohibits public companies or their
contractors and agents from retaliating against an employee
who provides information or assistance to an investigation
when the employee reasonably believes there has been a
violation of any of several enumerated laws, including the
Wire Fraud statute. She also sues for a violation of the
common-law prohibition on retaliatory discharge, citing
Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673,
289 S.E.2d 692 (1982).
have moved to stay the case pending conclusion of the related
criminal proceedings. In their motion, defendants acknowledge
that the FBI seized “electronic records” and
“numerous documents” from their office on
November 17, 2015, but they note that “the FBI and U.S.
Attorney's Office have declined to provide Defendants
with information regarding the status or scope of the
investigation.” Def. Mot. to Stay at 2. They go on to
state that, “[t]o the best of Defendants'
knowledge, the investigation involves allegations of mail and
wire fraud in connection with their billing practices.”
Id. Further, they allege that if a stay is not
granted, the individual defendants “would be faced with
the impossible choice of either asserting their Fifth
Amendment privilege against incrimination in this matter[,
]” from which an adverse inference may be drawn in this
civil action, “or waiving that privilege and risking
criminal repercussions.” Def. Memo. in Supp. of Mot. to
Stay at 2. Plaintiff opposes the stay, arguing that it would
unduly prejudice her and, if her lawsuit is successful, an
indefinite stay would make it more difficult to recover from
defendants in the future. Pl. Resp. to Mot. to Stay at 7-8.
August 19, 2016, the court held a telephone conference with
the parties and requested that they engage in discussions to
determine whether they could agree on any discovery matters.
The parties filed a joint report with the court on September
7, 2016. See Joint Report of the Parties (ECF Doc. No. 14).
The court held a second telephone conference with the parties
on September 9, 2016, during which they confirmed that they
were unable to come to an agreement as to any discovery
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.'” Maryland v. Universal
Elections, Inc., 729 F.3d 370, 379 (4th Cir. 2013) (quoting
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).
“The determination by a district judge in granting or
denying a motion to stay proceedings calls for an exercise of
judgment to balance the various factors relevant to the
expeditious and comprehensive disposition of the causes of
action on the court's docket.” United States v.
Georgia Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977) (citing
Landis, 299 U.S. at 254).
of the frequency with which civil and regulatory laws overlap
with criminal laws, American jurisprudence contemplates the
possibility of simultaneous or virtually simultaneous
parallel proceedings and the Constitution does not mandate
the stay of civil proceedings in the face of criminal
proceedings.'” Universal Elections, 729
F.3d at 370 (quoting Ashworth v. Albers Med., Inc.,
229 F.R.D. 527, 530 (S.D.W.V. 2005)). “Stays generally
are not granted before an indictment has issued.”
Id. But “[i]t is still possible to obtain a
stay, even though an indictment or information has not yet
been returned, if the Government is conducting an active
parallel criminal investigation.” Walsh Sec. v.
Cristo Prop. Mgmt., 7 F.Supp.2d 523, 527 (D.N.J. 1998)
(citation and internal quotation marks omitted). Several
district courts have indeed granted stays even though no
indictment has yet issued, where the civil defendant is a
target of the criminal investigation or is about to be
indicted. See Walsh, 7 F.Supp.2d 523 (granting a
stay when search warrants and subpoenas had been issued to
several of the civil defendants, the civil defendants were
informed that they were targets of the investigation, and the
government had indicated to the court that the investigation
was continuing); SEC v. Healthsouth Corp., 261
F.Supp.2d 1298 (N.D. Ala. 2003) (granting a stay when others
involved in the criminal scheme had pled guilty, the FBI had
raided a defendant's office, and “everyone
assume[d]” the civil defendants would be indicted
“in the near future”); Brumfield v.
Shelton, 727 F.Supp. 282 (E.D. La. 1989) (granting a
stay when the civil defendant was a target of a grand jury
courts have applied a variety of tests to decide whether to
stay civil actions pending criminal proceedings. The Fourth
Circuit has not explicitly endorsed any particular test.
Ashworth, this court relied on the Ninth
Circuit's test articulated in Keating v. OTS
that considered five factors in determining whether to grant
(1) the interest of the plaintiffs in proceeding
expeditiously with [the] litigation or any particular aspect
of it, and the potential prejudice to plaintiffs of a delay,
(2) the burden which any particular aspect of the proceedings
may impose on defendants; (3) the convenience of the court in
the management of its cases, and the efficient use of
judicial resources; (4) the interests of persons not parties
to the civil litigation; and (5) the interest of the public
in the pending civil and criminal litigation.
Ashworth, 229 F.R.D. at 530 (citing Keating, 45 F.3d 322, 325
(9th Cir. 1995)). The court in Ashworth considered, in
addition to these five factors, the “relatedness”
of the criminal and civil proceedings, asking whether they
“involve substantially similar issues.” 229
F.R.D. at 531. These six factors will guide the analysis in
Application of the Relevant Factors
“As a preliminary matter, the requirement of the
existence of a nexus between the parallel proceedings
sufficient to show that such proceedings are related and
involve substantially similar issues is the threshold factor
for a stay.” Ashworth, 229 F.R.D. at 531.
Without this nexus, “the myriad of tangible concerns in
favor of a stay, including the protection of a
defendant's Fifth Amendment interest and the deleterious
effect of civil discovery on the prosecution or defense,
argue that the civil and criminal proceedings are
sufficiently related and involve substantially similar
issues, warranting a stay. Def. Memo. in Supp. of Mot. to
Stay at 4-5. According to them, “[w]hether fraudulent
practices took place (or whether Plaintiff had a good-faith
basis to believe they did) and whether Plaintiff did, in fact
report those practices to the FBI go to the heart of her
retaliatory discharge claim.” Id. at 5.
Further, they state that plaintiff's claim that
defendants' conduct amounts to threatening a witness in
an ongoing federal criminal investigation “clearly
relates directly to the government's criminal
claims, as noted, are pursuant to 15 U.S.C. §
78u-6(h)(1)(A)i-iii, 18 U.S.C. § 1513(e), and 18 U.S.C.
§ 1514A(a) for “retaliatory discharge as an
employee of an agent and/or contractor of [a] publicly traded
corporation.” Pl. Compl. at 1. In addition, she alleges
violation of the common-law prohibition on retaliatory
discharge. Id. at 1-3. Plaintiff also alleges that
defendants threatened her, which she states amounted to the
threatening of a federal witness, in violation of 18 U.S.C.
§ 1514(e) and 18 U.S.C. § 1503. Id. at
the potential criminal charges against defendants, plaintiff
alleges in her complaint that she participated in helping
“non-law-enforcement professionals” investigate
defendants' excessive and unjustified billing practices,
which constituted mail or wire fraud. Id. at 2.
plaintiff's causes of action may be unrelated, or
minimally related, to whether defendants committed mail or
wire fraud. The claim under § 1514A(a), however, turns
on whether the employee has acted “to provide
information, cause information to be provided, or otherwise
assist in an investigation regarding any conduct which the
employee reasonably believes constitutes a violation
of” various statutes, including the Wire Fraud Act. 18
U.S.C. § 1514A (emphasis added). It is difficult to
imagine how the litigants will develop the case as to whether
the employee “reasonably believed” that the
defendants were engaged in criminal activity without
confronting the core question of whether they were engaged in
the criminal activity proscribed by 1514A(a). The claim under
§ 1513(e) similarly turns on whether defendants took
“any action harmful to [plaintiff]” for
plaintiff's “providing . . . [of] any truthful
information relating to the commission or possible commission
of any Federal offense.” 18 U.S.C. § 1513(e)
(emphasis added). Proving a violation thereof will require
showing that the information plaintiff provided to the
government was truthful. Much of the same testimony regarding
their actions, and the same documentary evidence, will be
required in dealing with those same issues. The two
proceedings are plainly related.
Prejudice to plaintiff of a delay
argues that she has a “very substantial interest in
expeditious litigation of her case. If there is a criminal
indictment, the Defendant law firm could well go bankrupt,
and the individual Defendants could well go to jail.”
Pl. Resp. to Def. Mot. to Stay at 7. Defendants call
plaintiff's bankruptcy argument “a baseless
speculation” and state that plaintiff “is in no
different a situation than any other plaintiff in any other
civil litigation matter.” Def. Reply Memo. at 6.
Defendants also argue that plaintiff will not be prejudiced
because she has a new job where her salary is higher than it
was at Martin & Seibert. Id. at 5. In support of
this, defendants have submitted the affidavit of Morgan
Boyer, a former employee of Martin & Seibert, which
states that plaintiff told her that since being fired by
defendants, plaintiff has a new job where she is making more
money than she did at Martin & Seibert. See Exhibit 1 to
Def. Reply Memo.
plaintiff has asked, as part of her relief, that she be
reinstated at work, she may be prejudiced by a delay. If
plaintiff has in fact found a new job where she is making
more money than she did at Martin & Seibert, this
eliminates some of the prejudice in any delay in being
reinstated to her previous position. See Id. Even if
plaintiff does not currently have a higher paying job, the
court can confront this problem by awarding back pay to
plaintiff for the entire period beginning with her discharge,
which is the relief she has requested in her complaint. Pl.
Compl. at ¶¶ 11, 12. Defendants also argue that
this would alleviate any prejudice to plaintiff caused by the
delay. Def. Mem. in Supp. of Mot. to Stay at 6.
plaintiff's ability to collect back pay may be seriously
hampered by her concern that the individual defendants could
go to jail and the defendant law firm could go bankrupt.
Given that the government has not pursued charges, this stay
could last for an extended period. This is supported by
plaintiff's statement that Michael Stein, Esq., the
Assistant U.S. Attorney in charge of the investigation stated
that, “the criminal proceedings will not be completed
anytime in the foreseeable future . . . because of lack of
adequate staff for the ‘privilege team, '”
who is responsible for sorting through the documents seized
from defendants to determine which documents are protected by
attorney-client privilege. Joint Report of the Parties at 2.
A stay would therefore delay plaintiff's ability to
recover until the government musters adequate manpower to
sort through the some 500, 000 documents said to have been
seized and decides whether to pursue charges against
defendants. It is also possible that the defendants are never
indicted, of which this court and plaintiff will likely be
unaware unless and until the statute of limitations has run
on the criminal charges. Further, whether defendants will be
available to pay a judgment to plaintiff is more worrisome
given that plaintiff does not yet know the extent of Martin
& Seibert's insurance coverage. Pl. Resp. to Def.
Mot. to Stay at 7; Joint Report of the Parties at 2. Thus,
this factor weighs against a stay.
Burden on defendants
contend that the court would infringe upon their Fifth
Amendment rights by declining to order a stay, as there is a
“very real fear for a penalty in the form of an adverse
inference should Defendants invoke their Fifth Amendment
privilege during the course of this litigation.” Def.
Mem. in Supp. of Mot. to Stay at 6-7. They note that refusal
to answer questions may be used as an adverse inference
against them in a civil proceeding, and invocation of the
privilege would damage their ability to prevail in this case.
See Morley v. Cohen, 888 F.2d 1006, 1012 (4th Cir.
1989). Further, because defendants do not know the scope of
any possible criminal charges, they state that almost any
testimony could help the prosecutors build a case against
them. For this reason, they have declared an intention to
invoke their Fifth Amendment rights extensively during
discovery. Def. Mem. in Supp. of Mot. to Stay at 6-7.
Plaintiff responds that defendants “will need to take
the Fifth Amendment in the civil trial regardless of when it
occurs.” Pl. Resp. to Mot. to Stay at 8.
Ashworth, in considering the burden on the
defendants, this court examined whether the defendants had
yet to be indicted by the government on criminal charges. 229
F.R.D at 531. As the Circuit Court for the District of
Other than where there is specific evidence of agency bad
faith or malicious governmental tactics, the strongest case
for deferring civil proceedings is where a party under
indictment for a serious offense is required to defend a
civil or administrative action involving the same matter. The
noncriminal proceeding, if not deferred, might undermine the
party's Fifth Amendment privilege against
self-incrimination, expand rights of criminal discovery
beyond the limits of Federal Rule of Criminal Procedure
16(b), expose the basis of the defense to the prosecution in
advance of criminal trial, or otherwise prejudice the case.
SEC v. Dresser, 628 F.2d at 1375-76. These concerns
are not the same before an indictment has been issued.
it is inherently unclear to the Court just how much the
unindicted defendant really has to fear. . . . There is no
telling how complicated the government's investigation
may be, whether the allegations of the particular civil
plaintiff are merely the tip of an iceberg that will result
in a lengthy and open-ended investigation, what priority the
government assigns to the investigation, whether it will
result in charges that will have to be litigated, or how
time-consuming the resulting criminal case will be.
Sterling Nat. Bank v. A-1 Hotels Intern., Inc., 175
F.Supp.2d 573, 577 (S.D.N.Y. 2001). Although in
Ashworth, the defendants had yet to be indicted on
criminal charges, the government had informed the court that
not only were three of the defendants targets of a criminal
investigation, but also that indictments would be forthcoming
by a specific date, within two months of the date of the
court's opinion. 229 F.R.D. at 531; see also 229 F.R.D.
at 531, n. 3 (“Under the circumstances, the fact that
an indictment has not issued is not fatal to the stay request
inasmuch as any uncertainty has been displaced by the
representation that indictments will be forthcoming . . .
which representation is fortified by the other indictments
and convictions that have already occurred.”).
however, there are no indictments and there is no information
that indictments will be forthcoming against defendants.
Further, based on information provided by the parties, it
appears that the criminal investigation has been delayed by
the lack of personnel tasked with determining attorney-client
privilege issues relating to the large quantity of documents
taken from defendants by the government. Joint Report of the
Parties at 2. Because it is unclear when, if ever, the
defendants will be indicted, the potential burden on
defendants if the stay is not issued is somewhat lessened.
individual defendants, Walter Jones, III, Geoffrey Haddad,
Michael Stevens, E. Kay Fuller, Susan Snowden, and Nikki
Moore Gress, are free to assert their Fifth Amendment
privilege in response to questions during discovery or at
trial. Despite the fact that they have not been indicted and
may not be indicted in the foreseeable future, because the
individual defendants do not know the extent of the
government's criminal investigation against them, they
will likely assert their Fifth Amendment privileges
extensively, and they have expressed their intentions to do
so. See Def. Memo. in Supp. of Mot. to Stay at 6-7. This
weighs in favor of a stay for the individual defendants.
issue of Fifth Amendment privileges changes when applied to
the defendant law firm, Martin & Siebert, which does not
itself have such a privilege. See George Campbell
Painting Corp. v. Reid, 392 U.S. 286, 288-89 (1968).
Because Martin & Siebert is a law firm, and many of its
owners and managers will likely be implicated in any criminal
investigation for the firm's overbilling, it is
reasonable to assume that some of its employees and owners
could not answer questions about this lawsuit without risking
exposure to criminal prosecution. Thus, at least some of them
could be expected to assert the Fifth Amendment privilege.
the possibility that some employees and owners of the law
firm may assert their own individual Fifth Amendment
privileges, this does not give Martin & Seibert that same
Fifth Amendment privilege. See Fidelity Funding of
California v. Reinhold, 190 F.R.D. 45, 52 (E.D.N.Y.
1997) (finding that “[a]ny use [a] corporate
defendant may have made of individual defendant's
exercise of the Fifth Amendment privilege is merely a
windfall. [The company] cannot . . . interpose the
willingness to provide future testimony by a defendant
legitimately asserting the Fifth Amendment in an effort to
collect yet another windfall through a stay of any pre-trial
proceedings.”). Further, there is no evidence that
every Martin & Seibert employee will raise a Fifth
Amendment privilege. This weighs against a stay for defendant
Martin & Seibert.
have also stated that they would be further prejudiced if
there is no stay because the FBI has seized numerous records,
but they do not know exactly which records are missing. Def.
Memo. in Supp. of Mot. to Stay at 8-9. Defendants believe
that the government seized some documents, such as documents
from plaintiff's personnel file, which are crucial to
their defense in this action. Def. Memo. in Supp. of Mot. to
Stay at 8-9. Thus, defendants' ability to defend
themselves may be hampered by the government's possession
of exculpatory material. Id.
response, plaintiff states that she does not need access to
any of the documents seized by the FBI for her case. Pl.
Resp. to Mot. to Stay at 7-8. To the extent that defendants
need documents in possession of the FBI for their defense,
plaintiff asserts that defendants can ask the FBI for copies
or obtain a court order. Id. at 8.
also express concern that an effort to settle the case will
be seen as an attempt to bribe plaintiff, who would
presumably be a witness in any forthcoming prosecution. Def.
Memo in Supp. of Mot. to Stay at 10. Defendants cite to none,
and the court is unaware of any cases that would implicate
defendants in bribery or other criminal wrongdoing for
engaging in settlement negotiations of plaintiff's claims
where plaintiff initiated the settlement discussions and the
process was pursued with some degree of judicial oversight.
Convenience to the court
the stay may be convenient for the court inasmuch as
“the resolution of the criminal case may later
streamline discovery in the civil case.”
Ashworth, 229 F.R.D. at 532 (quoting Bridgeport
Harbour Place I, LLC v. Ganim, 269 F.Supp.2d 6, 9 (D.
Conn. 2002)). However, unlike Ashworth, where the
court knew that the investigation was proceeding and that
indictments were forthcoming, in this case the court does not
know whether indictments will ever be issued, and if issued,
it does not appear that it will occur in the near future.
Thus, a stay would burden the court inasmuch as it
“would substantially halt the civil litigation
indefinitely, without any predictability as to when the case
would return to the court's active docket.” See
Sterling Nat. Bank, 175 F.Supp.2d 573; see also
Digital Equip. Corp. v. Currie Enters., 142 F.R.D. 8, 13
(D. Mass. 1991) (finding that a stay would require the court
to “rely upon fortuitous events to manage its
docket”). This factor, which the court regards in this
case to be the least in consequence, does not weigh heavily
in favor of or against a stay.
Interests of persons not parties to litigation
note that third parties who are not defendants in this
lawsuit may also be asked to submit evidence that the
government could use against them in any contemplated
criminal proceeding. Def. Memo. in Supp. of Mot. to Stay at
10-11. Plaintiff disputes that there is anyone other than
defendants who will be asked to submit evidence in this
matter. Pl. Resp. to Def. Mot. to Stay at 8. Nevertheless, it
seems likely that if access to the individual defendants is
stayed, information may be sought from employees or others
with knowledge of the events. In the event that this occurs,
the witnesses may assert their Fifth Amendment privilege to
the extent it is available.
further argue that the government has a strong interest in an
unimpeded criminal investigation. Def. Memo. in Supp. of Mot.
to Stay at 11. This argument is weakened by the fact that
unlike Ashworth, the government could have and chose
not to intervene and join in defendants' motion to stay
the proceedings. See Ashworth, 229 F.R.D. at
531-32. Thus, this factor weighs against a stay.
public does not have any specific interest in the outcome of
this civil case. The public has generalized interests in the
speedy and fair resolution of both civil and criminal cases.
See Digital Equip. Corp., 142 F.R.D. at 14. This
factor weighs slightly against a stay.
Balancing the Factors
the individual defendants are placed in the difficult
position of choosing whether to defend this action or invoke
the Fifth Amendment and remain silent, and because they have
indicated their intention to do this broadly given they do
not know exactly what charges may be brought against them,
the weight of the governing factors at this early stage of
the case where no discovery has occurred and no other motions
have been filed favors an issuance of a stay against the
individual defendants. Although this may impede the ability
of plaintiff to collect against defendants if her lawsuit is
successful, plaintiff's interests are still protected
because the case may go forward against Martin & Seibert,
as more fully discussed below. Thus, the court grants
defendant's motion for a stay with respect to defendants
Walter Jones, III, Geoffrey Haddad, Michael Stevens, E. Kay
Fuller, Susan Snowden, and Nikki Moore Gress, until such time
as their involvement in the criminal proceedings end, or
until plaintiff can demonstrate that a stay is no longer
the factors discussed previously, granting a stay to
defendant Martin & Seibert would prejudice plaintiff
without advancing any opposing Fifth Amendment concerns.
Because of this, the court must deny a stay as to defendant
Martin & Seibert. In order to fully protect the Fifth
Amendment privilege of the individual defendants while
discovery with Martin & Seibert is ongoing, the court
additionally bars the acquisition of evidence from the
individual defendants on an involuntary basis until further
order of the court.
counsel for defendants has suggested that any individuals who
could answer discovery requests on behalf of Martin &
Seibert are either named in this action or may assert a Fifth
Amendment privilege, the court will permit the case to
proceed as limited herein, which may allow settlement through
any available insurance that may cover the defendants in a
matter such as this. In the event that progress in the case
is frustrated by the inability to involve the individual
defendants, coupled with the invocation of the Fifth
Amendment by employees with knowledge of facts in issue, a
request for a full or partial lifting of the stay could be
the subject of a motion to that end.
accompanying Order and Notice, applicable to plaintiff and
Martin & Seibert, will be issued this same day.
, usion For the reasons set forth
herein, it is accordingly ORDERED that:
motion to stay civil proceedings be, and it hereby is,
granted as to the individual defendants, Walter Jones, III,
Geoffrey Haddad, Michael Stevens, E. Kay Fuller, Susan
Snowden, and Nikki Moore Gress;
Plaintiff may not acquire evidence from the individual
defendants involuntarily during the pendency of the
stay, unless otherwise ordered by theed court; and
motion to stay civil proceedings be, and it hereby is, denied
with respect to defendant Martin & Seibert, L.C.
Clerk is directed to forward copies of this written opinion
to all counsel of record.
 (h) Protection of
(1) Prohibition against retaliation
(A) In general
No employer may discharge, demote, suspend, threaten,
harass, directly or indirectly, or in any other manner
discriminate against, a whistleblower in the terms and
conditions of employment because of any lawful act done by
(i) in providing information to the Commission in
accordance with this section;
(ii) in initiating, testifying in, or assisting in any
investigation or judicial or administrative action of the
Commission based upon or related to such information; or
administrative action of the Commission based upon or related
to such information; or
(iii) in making disclosures that are required or
protected under [various legal sources].
15 U.S.C. § 78u-6. The term
“Commission” here refers to the Securities and
Exchange Commission. See 15 U.S.C. § 78c(a)(15).
 “Whoever knowingly, with the
intent to retaliate, takes any action harmful to any person,
including interference with the lawful employment or
livelihood of any person, for providing to a law enforcement
officer any truthful information relating to the commission
or possible commission of any Federal offense, shall be fined
under this title or imprisoned not more than 10 years, or
both.” 18 U.S.C. § 1513(e).
 “No company with a class of
securities registered under section 12 of the Securities
Exchange Act of 1934 . . . or any . . . contractor,
subcontractor, or agent of such company . . . may discharge,
demote, suspend, threaten, harass, or in any other manner
discriminate against an employee in the terms and conditions
of employment because of any lawful act done by the
(1) to provide information, cause information to be
provided, or otherwise assist in an investigation regarding
any conduct which the employee reasonably believes
constitutes a violation of section 1341, 1343, 1344, or 1348,
any rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud
against shareholders, when the information or assistance is
provided to or the investigation is conducted by-
(A) a Federal regulatory or law enforcement
(B) any Member of Congress or any committee of
(C) a personwith supervisory authority over the
employee (orsuch other person working for the employer whohas
the authority to investigate, discover, orterminate
misconduct) . . . .”
18 U.S.C. § 1514A(a).
 Plaintiff may have intended to rely on
a different opinion from the same action, Harless v.
First Nat. Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d
270 (1978), which held that “The rule that an employer
has an absolute right to discharge an at will employee must
be tempered by the principle that where the employer's
motivation for the discharge is to contravene some
substantial public policy principle, then the employer may be
liable to the employee for damages occasioned by this
 Although plaintiff cites to 18 U.S.C.
§§ 1514(e) and 1503 for the prohibition against
tampering with a federal witness, there is no section
1514(e), and while the prohibition against tampering with a
witness was once contained in section 1503, it is now
contained in section 1512(b)(1). In addition, under section
1512(d), it is unlawful to “intentionally harass
another person and thereby hinder, delay, prevent or
dissuade any person from (1) attending or testifying in an
official proceeding.” 18 U.S.C. §
 Plaintiff cites United States v.
Kordel, 397 U.S. 1 (1970), for the proposition that
“[i]f the civil proceeding involves alleged violations
of a different statute than does the criminal proceeding,
then it cannot be said that the proceedings will vindicate
the same public interest and a pre-indictment stay is not
warranted.” Pl. Resp. to Def. Mot. to Stay at 1-2.
However, the posture of Kordel was very different than that
of the present case, in that the government there
concurrently instituted both the civil and the criminal
proceedings against the defendants, who did not challenge the
parallel proceedings until after some of them had already
answered questions in a civil proceeding, that were then used
against them at the criminal trial. Unlike Kordel, Blanda,
not the government instituted this civil proceeding and the
defendants have not been convicted or even been indicted of
any criminal charges. And the Kordel opinion noted that the
petitioners had moved for a stay in the parallel civil case,
but had expressly declined to make any argument based on
their Fifth Amendment rights. Id. at 1. As discussed
more thoroughly below, defendants here have raised the Fifth
Amendment argument rather than waiving it.
 Defendants assert that “it is
not clear that [the FBI or the U.S. Attorney's Office] is
aware of this litigation or of the pending motion.”
Def. Reply Memo. at 9. Inasmuch as it appears that at least
plaintiff's counsel has been in contact with an Assistant
U.S. Attorney about the status of the investigation, see
Joint Report of the Parties at 2, it is likely that the
government is aware of this litigation and could have
intervened to join defendants' motion to stay the