611 F.2d 1026 - Wehling v. Columbia Broadcasting System — 611 F.2d 1026

How this case has been cited

Cited by 27 later decisions — most recently June 2009 · most notably Wehling v. Columbia Broadcasting System (1979), Baker v. Limber (1981)

8 federal appellate · 7 district · 3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *1027Joel W. Westbrook, Bruce L. Goldston, San Antonio, Tex., for plaintiffs-appellants.

¶2Thomas R. Phillips, Houston, Tex., for defendant-appellee.

¶3ON PETITION FOR REHEARING

¶4(5 Cir., 1979, 608 F.2d 1084)

¶5Before MORGAN, RONEY and GARZA, Circuit Judges.

¶6PER CURIAM:

¶7On petition for rehearing, CBS points out that our opinion could be interpreted as ordering a stay of all discovery rather than merely staying discovery in those areas where plaintiff has invoked his Fifth Amendment right to silence. When Wehling brought this appeal he sought to stay only that discovery which exposed him to a risk of self-incrimination. A more expansive stay is neither needed nor requested in this case, and we disavow any intent to restrict discovery of information “not privileged” under Fed.R.Civ.P. 26(b).

¶8CBS also asserts that the opinion deprives it of the option of proceeding to trial without the benefit of the requested discovery. This argument is unfounded. Nothing in our opinion precludes CBS from abandoning its questions to Wehling and proceeding to an early trial without full discovery. Although Wehling could continue to assert his Fifth Amendment rights at trial, it is clear that his invocation of the privilege would be subject to the drawing of an adverse inference by the trier of fact. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

¶9Finally, CBS argues that requiring the trial court to stay discovery until the limitations period has run presupposes that Wehling will not be indicted and leaves the court with no guidance on how to proceed if he is. It is true that we did not specify what action the district court should take if an indictment against Wehling is returned. However, we did outline the proper analysis to be utilized in resolving such questions, and we remain convinced that the trial court can adequately deal with this problem when and if it arises. Furthermore, we believe that it would be premature to attempt to formulate an answer without (1) knowledge of the precise nature of the criminal charges, (2) a familiarity with the trial court’s criminal docket and the usual timetable for trying such cases, and (3) some projection as to when the criminal proceedings would likely terminate. Only when these facts are ascertained can the trial judge determine whether the stay should be extended pending resolution of the criminal case.*

¶10 *1028The other points raised by CBS lack merit. Consequently, the petition for rehearing is DENIED.