Opinion
MDL 1446, CIVIL ACTION NO. H-01-3624 AND CONSOLIDATE CASES, CIVIL ACTION NO. H-01-3913 CONSOLIDATE CASES
September 13, 2003
ORDER
Pending before the Court in the above referenced action are Michael J. Kopper's motion to postpone discovery and to stay answers during pendency of criminal proceedings (#142 in MDL 1446) and David Duncan's motion to postpone and/or stay discovery during the pendency of criminal proceedings (#1646 in Newby).
Both men have pleaded guilty to certain charges against them related to Enron matters and urge that they remain in substantial jeopardy and need to protect their constitutional rights under the Fifth Amendment until they have been sentenced. See, e.g., Mitchell v. U.S., 526 U.S. 314, 326 (1999)("Where the sentence has not yet been imposed, a defendant may have a legitimate fear of adverse consequences from further testimony."); U.S. v. Kuku, 129 F.3d 1435 (11th Cir. 1997) ("[A] defendant retains the Fifth Amendment privilege against self-incrimination prior to sentencing despite having entered a guilty plea, because of the possible impact that compelled testimony may have on the defendant's as yet undetermined sentence."), cert. denied, 524 U.S. 909 (1998); U.S. v. Hernandez, 962 F.3d 1152, 1161 (5th Cir. 1992)("[I]mpending sentencing may furnish grounds for a legitimate fear of incurring additional criminal liability from testifying, in which case the privilege should remain in effect.") (and cases cited therein). Both Defendants have also entered into agreements to cooperate with the government's ongoing investigation, and participating in discovery here might interfere with that investigation. They both reference this Court's order (#1298 in Newby) granting a similar request from Andrew Fastow.
After considering the matter, the Court finds that Kopper and Duncan show good cause for reasons cited in the Fastow order and based on their authority. Accordingly, the Court
ORDERS that both motions for postponement of discovery are GRANTED.
SIGNED at Houston, Texas.