The recent raid of Michael Cohen’s office and residences has led me to wonder about the interplay between discovery in federal civil procedure and evidence seized in a criminal investigation. (The rules for discovery begin on page 36.)

Suppose a party in a civil case is independently under criminal investigation, and evidence relevant to the civil case — evidence we’ll stipulate would have otherwise been subject to discovery — is seized as part of the criminal investigation. Suppose further that what is seized is the only copy of the materials and so is no longer in possession of the party to the civil suit.

What rules exist to govern whether and under what circumstances this material could be released to the other party as part of the civil suit?

up vote 3 down vote accepted

The quick answer is a defendant will seek a stay of the civil litigation until the completion of the parallel criminal trial. The reasons why range from 5th Amendment implications all the way to whether a judge might view using the more open civil discovery process to skirt the rules established for criminal case discovery. The details, including a handy comparison chart, are discussed here:

https://www.wardandsmith.com/articles/a-parallel-universe-navigating-discovery-in-concurrent-civil-and-criminal-proceedings

  • +1 Thanks! That chart is handy! – Dennis Apr 14 at 14:21
  • Glad it helped! – A.fm. Apr 14 at 19:28

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