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United States District Court, Northern District of Illinois, E.D

February 8, 1984


The opinion of the court was delivered by: Aspen, District Judge:


On July 12, 1983, Harris Trust and Savings Bank ("Harris") sued John G. Phillips ("Phillips") in the Circuit Court of Cook County for slander. Harris Trust and Savings Bank v. Phillips, 83 L 13672. Five months later, on December 14, 1983, Phillips was indicted by a federal grand jury in the Northern District of Illinois for attempted extortion under 18 U.S.C. § 1951(b)(2). Both the civil action in state court and the criminal proceeding in this Court arise out of related events. The United States has moved this Court for a protective order barring Phillips from taking or receiving further discovery in the civil suit until the conclusion of his criminal trial, which is scheduled to begin on April 2, 1984. For the reasons set forth below, the government's motion is granted.

The government argues that a protective order is necessary because Phillips has improperly taken discovery in the civil action that was actually designed to help him prepare his defense to the federal criminal charge. According to the government, Phillips plans to pursue similar discovery in this vein. This type of abuse can occur due to the differences in the rules of discovery in civil and criminal cases. As Judge Wisdom of the Fifth Circuit Court of Appeals has noted,

  While the Federal Rules of Civil Procedure have
  provided a well-stocked battery of discovery
  procedures, the rules governing criminal
  discovery are far more restrictive. Compare Rules
  26 through 37, Fed.R.Civ.P., 28 U.S.C.A. with
  Rules 15, 16, and 17, Fed.R.Crim.P., 18 U.S.C.A.
  Separate policies and objectives support these
  different rules.

  Rule 16, Fed.R.Crim.P., the counterpart of civil
  Rule 34, limits discovery of documents and
  objects to those "obtained from or belonging to
  the defendant or obtained from others by seizure
  or by process". And 18 U.S.C.A. § 3500 does away
  with any pre-trial discovery of statements of a
  government witness. A litigant should not be
  allowed to make use of the liberal discovery
  procedures applicable to a civil suit as a dodge to
  avoid the restrictions on criminal discovery and
  thereby obtain documents he would not otherwise be
  entitled to for use in his criminal suit. Judicial
  discretion and procedural flexibility should be
  utilized to harmonize the conflicting rules and to
  prevent the rules and policies

  applicable to one suit from doing violence to
  those pertaining to the other.

Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962) (footnote omitted), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963).*fn1 Like the Fifth Circuit in Campbell, many federal courts have stayed civil discovery in order to prevent defendants from circumventing the criminal discovery restrictions. E.g., In re Application of Eisenberg, 654 F.2d 1107 (5th Cir. 1981); United States v. Mellon Bank, N.A., 545 F.2d 869 (3d Cir. 1976); Founding Church of Scientology v. Kelley, 77 F.R.D. 378 (D.D.C. 1977); S.E.C. v. Control Metals Corp., 57 F.R.D. 56 (S.D.N.Y. 1972); United States v. One 1964 Cadillac Coupe DeVille, 41 F.R.D. 352 (S.D.N.Y. 1966); United States v. Steffes, 35 F.R.D. 24 (D.Mont. 1964).

Phillips contends that this Court is prohibited from granting the government's motion by 28 U.S.C. § 2283, the federal anti-injunction statute. This contention is incorrect, however, as Section 2283 does not apply to injunctions sought by the United States. Mitchum v. Foster, 407 U.S. 225, 235-36, 92 S.Ct. 2151, 2158-59, 32 L.Ed.2d 705 (1972); Leiter Minerals, Inc. v. United States, 352 U.S. 220, 225-26, 77 S.Ct. 287, 290-91, 1 L.Ed.2d 267 (1956). As Justice Frankfurter explained in Leiter,

  There is, however, a persuasive reason why the
  federal court's power to stay state court
  proceedings might have been restricted when a
  private party was seeking the stay but not when
  the United States was seeking similar relief. The
  statute is designed to prevent conflict between
  federal and state courts. This policy is much
  more compelling when it is the litigation of
  private parties which threatens to draw the two
  judicial systems into conflict than when it is
  the United States which seeks a stay to prevent
  threatened irreparable injury to a national
  interest. The frustration of superior federal
  interests that would ensue from precluding the
  Federal Government from obtaining a stay of state
  court proceedings except under the severe
  restrictions of 28 U.S.C. § 2283, 28 U.S.C.A. §
  2283, would be so great that we cannot reasonably
  impute such a purpose to Congress from the general
  language of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283,
  alone. It is always difficult to feel confident
  about construing an ambiguous statute when the aids
  to construction are so meager, but the
  interpretation excluding the United States from the
  coverage of the statute seems to us preferable in
  the context of healthy federal-state relations.

Leiter, at 225-26, 77 S.Ct. at 290-91 (footnote omitted).*fn2 Thus, this Court has the power to grant the government's motion for a protective order, even though such an order might interfere with the state court civil action.

The question remains whether this Court should grant the government's motion. Historically, federal district courts have been reluctant to exercise their discretionary power to interfere with state court proceedings. Ahrensfeld v. Stephens, 528 F.2d 193, 198 (7th Cir. 1975). Phillips' arguments notwithstanding, this case presents a situation in which the Court's reluctance to interfere must be overcome.

A review of the discovery materials already obtained and requested by Phillips in the civil action indicates that Phillips has unquestionably utilized the state civil discovery rules for the prime purpose of obtaining materials to which he is not entitled under federal criminal discovery rules. Although some of the information sought by Phillips relates to the state court slander suit, much more of the discovery is aimed at Phillips' upcoming criminal trial. This abusive tactic is an improper circumvention of the restrictions of the criminal discovery rules. Protection of the integrity of the criminal justice process fully justifies this Court's taking remedial action.

Furthermore, the interference with the state court action by the issuance of this protective order will be minimal in this case. This Court is not deciding any issues which have been presented to the Circuit Court of Cook County, but is merely delaying the discovery process in the state court. Phillips' criminal trial is set to begin in less than two months, and he is unable to articulate any prejudice in the civil suit that he will suffer from such a delay. Harris, the plaintiff in the civil action, will likewise incur no hardship; its attorney informed this Court that Harris could easily adapt to a postponement in discovery.*fn3

Accordingly, the government's motion for a protective order is granted.*fn4 Phillips is ordered to cease taking or receiving further discovery in the state court case, Harris Trust and Savings Bank v. Phillips, 83 L 13672, until his criminal trial in this Court has been completed.*fn5 It is so ordered.

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