Criminal Case Need Not Shut down Civil Discovery on the Same Facts.

Originally published by Bob Mabry.

A guy does a bad thing to another person. That person sues the guy and starts discovery. The guy is charged with a crime on basically the same facts. As a civil defendant, the guy asks to be excused from civil discovery until the criminal case is disposed of. Trial judge grants it.
The civil plaintiffs ask the appeals court for a writ of mandamus to force the trial judge to continue civil discovery– the defendant may assert privileges against inquiries that would require waiver of rights not to self-incriminate, but the defendant will have to assert them. The court of appeals conditionally issues the writ. Conditionally issuing the writ means that the court of appeals won’t imperiously order the trial judge to do its will, but trusts the trial judge to whatever is appropriate in light of the opinion, and will only order the trial judge to do something if the trial judge dawdles about taking the COA’s hint. (If there’s a mandamus case where the COA does issue a direct order, that means that it is angry with the trial judge.)
In re Tina Fontaine and Gerald Fontaine, No. 17-08-09496-CV, 2017 WL 6390530, Tex. App.– Beaumont, Dec. 14, 2017 (mem. op.) (per curiam) (orig. proceeding)

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