RENDERED: FEBRUARY 18, 2016
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2015-SC-000239-MR
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ALLEN LLOYD LEHMANN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000087-MR
JEFFERSON CIRCUIT COURT NO. 14-CI-003212
HON. SUSAN SCHULTZ GIBSON, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT
AND
COMMONWEALTH OF KENTUCKY; L.M.B.; REAL PARTIES IN INTEREST
L.M.D.; L.M.L.; THE KENTUCKY DISTRICT
OF THE ASSEMBLIES OF GOD;
THE ILLINOIS DISTRICT COUNCIL OF THE
ASSEMBLIES OF GOD; TRINITY CHAPEL
ASSEMBLY OF GOD, INC.;
GENERAL COUNCIL OF THE ASSEMBLIES
OF GOD
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING AND DENYING WRIT OF MANDAMUS
Allen Lloyd Lehman petitions this Court to issue a writ of mandamus
directing the trial court to vacate its order staying discovery in his pending civil
case. An issue of first impressidn in this Commonwealth, we hold that the trial
court did not act erroneously in staying discovery in a civil action against
Lehmann pending the completion of Lehmann's criminal prosecution stemming
from essentially the same factual framework. In so doing, we affirm the Court
of Appeals' conclusion that Lehmann is not entitled to the writ he seeks. So
Lehmann's petition is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Lehmann formerly served as an ordained pastor in the Assembly of God
church. During his tenure, he allegedly committed acts of sexual abuse on
three young girls—sisters, L.M.D., L.M.L., and L.M.B. Those alleged victims
came forward many years laterl and in May 2014, Lehmann was indicted for
two counts of first-degree sodomy upon a victim under the age of 12 and seven
counts of first-degree sexual abuse upon a victim under the age of 12. About a
month after the indictment issued, the alleged victims filed a civil action
against Lehmann and various Assembly of God entities, based essentially on
the same allegations covered by the indictment.
In his answer in the civil action, Lehmann asserted various defenses and
made clear that he would invoke his Fifth Amendment right against self-
incrimination to the fullest. Not long after the civil action began, Trinity Chapel
Assembly of God moved to dismiss it. While this motion was pending, Trinity
filed a motion to stay civil discovery. Both the plaintiffs and Lehmann objected
to staying discovery. In the meantime, the plaintiffs propounded discovery
requests on the various defendants.
Another of the civil-action defendants, The Illinois District Council of the
Assemblies of God, next moved the trial court for a stay of discovery in
I The alleged victims claim the incidents occurred in the 1990s, when they were
between the ages of six and fourteen years old.
2
conjunction with its own motion to dismiss the complaint. The General
Council of the Assemblies of God filed a response in support of the Illinois
District's motion but went even further and requested the trial court stay all
discovery until it ruled on all motions to dismiss.
The Commonwealth, with its criminal prosecution pending against
Lehmann, moved to intervene in the civil action and stay discovery. In support
of its motion, the Commonwealth argued that the trial court should stay the
discovery attempts until the completion of Lehmann's criminal trial to promote
justice and fairness and protect its interest in Lehmann's prosecution.
In December 2014, the trial court entered an order granting the
Commonwealth's motion to intervene and stay discovery. 2 In its order, the trial
court noted that allowing civil discovery to proceed in due course "would result
in Lehmann having access to information and statements, including the
depositions of the victims and other witnesses, which are not permitted under
the rules for criminal discovery." In the interest of fairness and the furtherance
of justice, the trial court stayed civil discovery so "Lehmann ha[d] the same
rights to information and access to witnesses as permitted under the criminal
rules." Lehmann suffered no prejudice according to the trial court because, at
that time, the criminal trial was scheduled to take place roughly five months
from the date of the order and the civil case had only been pending for six
months.
2 The trial court has not ruled on the General Council's related motion simply to
limit discovery.
3
Lehmann sought a writ of mandamus from the Court of Appeals in an
attempt to have the trial court's order vacated and civil discovery resumed.
The Court of Appeals rejected Lehmann's arguments and declined to issue a
writ. In the Court of Appeals' estimation, Lehmann failed to prove he was
without an adequate appellate remedy and there was no genuine exigency
meriting use of the court's writ authority.
Lehmann's criminal trial date was initially scheduled for April 22, 2015.
But, while his writ petition was pending in the Court of Appeals, Lehmann
moved to continue his trial date. The trial court granted the motion and set a
trial date for February 2, 2016. 3
II. ANALYSIS.
A writ is an extraordinary remedy, one we employ sparingly and with
caution. A court exercises appropriately its discretionary writ authority,
therefore, only in remarkable circumstances. Specifically, we recognize two
general situations as remarkable enough to be writ-worthy:
[U]pon a showing that (1) the lower court is proceeding or is
about to proceed outside of its jurisdiction and there is no remedy
through an application to an intermediate court; or (2) that the
lower court is acting or is about to act erroneously, although
within its jurisdiction, and there exists no adequate remedy by
appeal or otherwise and great injustice and irreparable injury will
result if petition is not granted. 4
3 This was the scheduled trial date as of the filing of Lehmann's writ petition.
The trial court has since granted Lehmann's motion for continuance to a later date.
Lehmann's motion for leave to advise the Court of subsequently altered circumstances
resulting in continuation of related criminal trial, filed on February 3, 2016, is denied.
4 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
4
Lehmann does not argue the trial court's discovery stay is outside its
jurisdiction. Instead, Lehmann argues the trial court is acting
erroneously within its jurisdiction. When operating under this writ class,
the writ-seeking party must prove both irreparable injury and inadequate
appellate remedy. 5 In rare situations, we have considered petitions writ-
worthy despite "the absence of a showing of a specific great and
irreparable injury to the petitioner." 6 But those situations otherwise
presented a "substantial miscarriage of justice" and necessitated the
court's error be corrected "in the interest of orderly judicial
administration." 7
In the present case, we must first deal with the Commonwealth's
and General Council's motions to dismiss Lehmann's writ petition as
moot. Lehmann's appeal stems from the trial court's order of December
9, 2014, staying discovery. But the trial court entered a new order on
May 22, 2015, replacing the order of December 9, 2014. The trial court
entered this new order while Lehmann's instant appeal was pending and
after Lehmann sought and received a continuance of his criminal trial.
The Commonwealth sought an extension of the discovery stay, which the
trial court granted with its May order. Discovery, as a result, is now
5 Hoskins, 150 S.W.3d at 9-10.
6 Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961).
7 Id.
5
stayed in Lehmann's civil case until the conclusion of his criminal trial,
which is scheduled for February 2, 2016.
The Commonwealth and General Council highlight these
procedural occurrences as mooting Lehmann's appeal because he is no
longer appealing from the order that serves as the source of the stay
Lehmann wishes to have vacated. A court must, of course, dismiss an
appeal "when a change in circumstance renders that court unable to
grant meaningful relief to either party." 7 But despite a change in
circumstance relating to Lehmann's action, we are not persuaded the
entire action is rendered moot. 8
We recently engaged in a thorough discussion of the mootness
doctrine and its parameters within our case law. 9 There is little need to
retread this ground. Lehmann's petition does not present a situation
7 Commonwealth, Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433
S.W.3d 341, 344 (Ky. 2014) (internal quotation marks omitted).
8 One aspect of Lehmann's appeal is moot: the argument that the trial court
erroneously entered an order of indefinite duration. Orders of indefinite duration are
strongly disfavored throughout our case law. See Estate of Cline v. Weddle, 250
S.W.3d 330 (Ky. 2008) (narrowed on other grounds by Inverultra, S.A. v. Wilson, 449
S.W.3d 339 (Ky. 2014)); see also Landis v. N. Amer. Co., 299 U.S. 248, 255 (1936)
(noting a trial court's "discretion was abused by [ordering] a stay of indefinite duration
in the absence of a pressing need."). In its order of December 9, 2014, the trial court
stayed discovery "until such time that the criminal case, styled Commonwealth v.
Lehmann, 14-CR-1393, is resolved." Perhaps the trial court's choice of the word
resolved is vague—lending itself equally to the conclusion of the jury trial or the
conclusion of a final appeal in the event of conviction. Regardless, the trial court's
order of May 22, 2015, eliminates any potential ambiguities created by the December
order. This order stays civil discovery until "the conclusion of the criminal trial, now
scheduled for February 2, 2016," clearly designating a definite span of time. So we are
unable to afford Lehmann any meaningful relief on this issue.
9 See Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).
6
where we are unable to afford relief. Regardless of which order
Lehmann's appeal arises from, all civil discovery is currently stayed. It
would be a waste of judicial resources to dismiss Lehmann's appeal as
moot with the basis of the appeal still in existence only to await its
return. A controversy exists, to be sure; the trial court's order of May 22,
2015, does nothing to alter this fact.
In any event, even if we were to find Lehmann's current appeal
moot, the public-interest exception we outlined extensively in Morgan is
satisfied. That exception has three distinct elements:
(1) the question presented is of a public nature; (2) there is a
need for an authoritative determination for the future
guidance of public officers; and (3) there is a likelihood of
future recurrence of the question.'°
This is surely a question of public importance, involving the rights not only of
criminal defendants but also those of civil plaintiffs. It seems likely that
criminal and civil cases will again arise out of the same events such that the
instant discovery issue will reappear. So the first and third prongs of the
Morgan test are satisfied.
As for the second Morgan prong, our research indicates—and the parties
agree—that our case law has yet to answer whether civil discovery should be
stayed pending the conclusion of a related criminal prosecution so guidance for
future cases is warranted. 11 It is also worth mentioning that as in Morgan, we
10 Id. at 102 (quoting In re Alfred H.H., 910 N.E. 2d 74, 80 (III. 2009)).
1 1 Our research indicates that on two particular occasions the Court of Appeals
has dealt with situations somewhat similar to Lehmann's current circumstance. In
7
are faced with "a question concerning a matter of procedure and procedural
rules, the Court's own bailiwick,” 12 so the danger of encroaching upon the
prosecutorial prerogative of the executive branch is low. Mootness aside,
Lehmann's challenge to the suspension of discovery in the civil action against
him is a permissible matter for our review.
Yet, like the Court of Appeals, we find Lehmann's petition fails
because two bases: (1) the trial court did not act erroneously; and (2)
Lehmann has not shown a writ is necessary to prevent great or
irreparable injury.
Both our civil rules and associated case law, generally speaking,
favor broad discovery. Secrecy, after all, is the enemy to the pursuit of
Standard v. Buckner,. 561 S.W.2d 329 (Ky.App. 1977), Buckner received a favorable
civil verdict against Standard, all the while Standard was "under indictment for the
rapes alleged in the civil action." Id. at 330. Standard appealed the civil verdict and
argued the trial court erroneously failed to continue the civil action pending the final
resolution of his criminal trial. The appellate court rejected Buckner's argument and
held the trial court did not abuse its discretion because "[tjhere was no discovery
which would have conflicted with appellant's privilege against self-incrimination." Id.
Standard, while illustrative, is the opposite of Lehmann's petition: Rather than
objecting, the defendant sought a continuance. In Carter v. Drumm, 700 S.W.2d 423
(Ky.App. 1985), the Drumms were accused of sexually abusing their children. The
Cabinet for Human Resources, as a result, took the children into its custody.
Dependency actions were scheduled to determine whether the children were
dependent, neglected or abused, but the Drumms sought a writ to have the
proceedings suspended until their criminal trial was resolved. The appellate court
held that relief was unwarranted because there was "no threat of great injustice or
irreparable injury about to befall the appellees as a result of the dependency
hearings." Id. at 424 (internal quotation marks omitted). Again, this is virtually the
opposite of Lehmann's situation because the Drumms were arguing their right against
self-incrimination would be violated by forcing them to proceed simultaneously with
the dependency hearings and criminal trial. The trial court provided Lehmann with
the result the Drumms sought, but Lehmann argues it was erroneous in his case. All
that to say, this issue has yet to be squarely or thoroughly reviewed.
12 Morgan, 441 S.W.3d at 103.
;8
truth. In that vein, "[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action." 13 This is true even if the evidence sought would be
inadmissible at trial. Criminal discovery, in contrast, is much more
limited. For example, depositions are a fundamental part of civil
litigation, but a criminal defendant is permitted to take depositions only
of witnesses who will be unavailable at tria1. 14
Civil and criminal procedural rules serve distinctly different
policies and objectives, to be sure. The federal courts have recognized
three primary policy considerations, relevant here, justifying criminal
discovery's limited scope:
First, there has been a fear that broad disclosure of the
essentials of the prosecution's case would result in perjury
and manufactured evidence. Second, it is supposed that
revealing the identity of the confidential government
informants would create the opportunity for intimidation of
prospective witnesses and would discourage the giving of
information to the government. Finally, it is argued that
since the self-incrimination privilege would effectively block
any attempts to discover from the defendant, he would retain
the opportunity to surprise the prosecution whereas the
state would be unable to obtain additional facts. 15
In light of these concerns, federal courts have rather consistently found
"good cause to issue a protective order staying civil discovery when a
related criminal proceeding is pending in order to prevent the defendant's
13 Kentucky Rules of Civil Procedure (CR) 26.02(1).
14 See Kentucky Rules of Criminal Procedure (RCr) 7.10.
15 Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962).
9
use of broad civil discovery to sidestep" the rules governing criminal
procedure. 16 More directly, 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 the use in his
criminal trial." 17 Trial courts possess a wide range of discretion to
marshal appropriately both civil and criminal discovery. Preventing such
dodges or sidesteps is an appropriate exercise of this discretion because
it protects the purposes and policies underlying our procedural rules.
We should note that we stop short of presuming that simply
because civil and criminal proceedings pend simultaneously that
defendants will manipulate the discovery process. 18 But we do highlight
the absurdness of "[p]rohibiting a criminal defendant from taking a
discovery deposition in a criminal proceeding, only to allow him to take
the same investigatory deposition through a related civil proceeding." 19 It
is sound policy to protect the integrity of our procedural rules and
criminal process.
16 State v. Deal, 740 N.W.2d 755, 764 (Minn. 2007) (internal quotation marks
omitted) (citing Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl. 1975) ("[I]t has
long been a practice to 'freeze' civil proceedings when a criminal prosecution involving
the same facts is warming up or under way.")).
Bd. of Governors of Fed. Reserve Sys. v. Pharaon, 140 F.R.D. 634, 639
17
(S.D.N.Y. 1991).
18 See In re R.R., 26 S.W.3d 569 (Tex.App. 2000).
19 Deal, 740 N.W.2d at 765.
10
Each case is different, of course, and no bright-line rule could
respond to discovery's many nuances. For those reasons, we agree with
a number of federal and state courts in holding trial courts should weigh
"the interests of 'litigants, nonparties, the public, and the court itself. "2o
The balance of these interests is a "situation-specific task, and an
inquiring court must take a careful look at the idiosyncratic
circumstances of the case before it.” 21 We find it unnecessary to provide
an exhaustive list of factors for a trial court's consideration, but we find
these to be strong guidance:
(1) the extent to which the evidentiary material in the civil
and criminal cases overlap; (2) the status of the criminal
proceeding; (3) the interests of any parties in staying the
civil proceeding; (4) the prejudice to any parties from
staying the civil proceeding; [(5)] the interests of persons
that are not parties to the litigation; [(6)] court
convenience; and [(7)] the public interest in the pending
civil and criminal actions. 22
The Commonwealth and public share a particularly weighty interest in
protecting the integrity of the criminal prosecution. The degree to which the
issues in the civil and criminal proceedings overlap, then, is particularly
important. The more overlap, "the more likely that allowing civil discovery will
20 Id. at 766 (quoting Bridgeport Harbour Place I, LLC v. Ganim, 269 F. Supp.2d
6, (D.Conn. 2002); see also State v. Tomasso, 878 A.2d 413 (Conn. 2004); United
States v. Steffes, 35 F.R.D. 24 (D.Montana 1964).
21 Id. (quoting Microfinancial, Inc. v. Premier Holidays Intl, Inc., 385 F.3d 72, 78
(1st Cir. 2004).
22 Id. (citing Microfinancial, 385 F.3d at 78; Maloney v. Gordon, 328 F. Supp.2d
508, 511 (D.Del. 2004); Ganim, 269 F.Supp.2d at 8).
11
jeopardize the integrity of the criminal proceeding" 23 as using that discovery
may become an "irresistible temptation" 24 to gain an advantage in the criminal
proceeding.
Reviewing the trial court's decision with these factors in mind, we
are unable to find an abuse of discretion. Lehmann's civil defense and
criminal prosecution are closely intertwined—nearly identical—because
they involve the same allegations. The Commonwealth's interest,
accordingly, is particularly strong. Lehmann suffers no prejudice
because of the trial court's discovery stay. Sure, Lehmann cannot
depose the plaintiffs as soon as he wishes, but; as we note below,
Lehmann is not lacking information about the allegations against him.
The stay is of short duration 25 but significantly lengthened at Lehmann's
request. As an aside, while we do not attribute any improper motive,
Lehmann's continuance of his criminal prosecution tends to imply that
he wishes only to proceed with the benefit of the information gained
through civil discovery. Again, this favors the trial court's decision.
The trial court considered many of these factors, noting that the
Commonwealth had a strong interest and Lehmann was not prejudiced
by the stay because his civil case had not pended for long and his
23 Id.
24 Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203 (Fed.Cir. 1987).
25"[T]he length of time of the stay is a factor in considering the prejudice to the
party opposing the stay. Risk of prejudice is lessened after the criminal indictment
because of the requirement of a speedy trial, which limits the duration of the stay."
Deal, 740 N.W.2d at 766.
12
criminal trial was on the horizon. In the end, the trial court's stay order
simply was not arbitrary, unfair, or unsupported by sound legal
principles. 26
We would be remiss not to point out that staying discovery should
not be a trial court's default position when faced with overlapping civil
and criminal proceedings. It is imperative that the trial court properly
review the interests of all involved and maintain a degree of flexibility as
the matter proceeds. Suspending discovery is one tool available to a trial
court—a sizeable tool at that.
Secondly, Lehmann's writ petition fails because he has not shown
a writ is necessary to prevent great or irreparable injury.
Lehmann argues time is of the essence because he and his wife are
in their mid-to-late seventies and their memories of these supposed long-
ago events could fade, taking with them any potential defense to the
claims.
The adequacy of Lehmann's appellate remedy aside, Lehmann
must still show that our denial of his petition would work a great and
irreparable injury upon him—something he simply cannot do under the
circumstances presented. A great and irreparable injury under our case
law is not merely the high costs attendant with litigation, but, instead, is
"something of a ruinous nature" 27 or even "incalculable damage to the
26 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
27 Robertson v. Burdette, 397 S.W.3d 886, 891 (Ky. 2013).
13
[petitioner] . . . either to the liberty of his person, or to his property
rights, or other far-reaching and conjectural consequences." 28 We are
unable to see such severe injuries here.
A stay of discovery foreclosing a civil defendant's ability to present
a defense perhaps would qualify as a sufficient injury. Lehmann
attempts to portray such a situation here. But Lehmann is not operating
in the dark with regard to his civil defense. He is aware of, at the very
least, the general outline of the claims against him via criminal
discovery. The Commonwealth, per its duty, has already provided
Lehmann with information relating to the evidence to be presented
against him when he stands trial for his alleged crimes. Lehmann may
prefer more evidence, but the record does not support that Lehmann will
be helpless without the victims' depositions.
There being no great and irreparable injury, Lehmann urges us to
invoke our certain-special-cases exception. In "certain special cases," we
will overlook the great-and-irreparable-injury requirement "to preserve
the orderly administration of the laws." 29 But we have been cautious in
our application of this exception, opting only to use it "for exceptional
cases [where] the remedy may be invoked as a shield from injustice" 30 or
where "the action for which the writ is sought would violate the law,
28 Hoskins, 150 S.W.3d at 19 (emphasis omitted) (quoting Litteral v. Woods, 4
S.W.2d 395, 396-97 (Ky. 1926)).
29 Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916).
30 Cox v. Braden, 266 S.W.3d 792, 797 (Ky. 2008).
14
e.g. [,] by breaching a tightly guarded privilege or by contradicting the
requirements of a civil rule." 32 Aside from the fact that no rule or
privilege is violated, the certain-special-cases exception is inapplicable
because, as made clear above, the trial court's action was not erroneous.
Even if we assumed it erroneous, there is no great injustice in preventing
the potential abuse of our criminal discovery rules and protecting the
Commonwealth's interest in its prosecution of Lehmann. And the trial
court's order has not resulted in undue delay of the plaintiffs' case
against Lehmann. We are mindful Lehmann sought the continuance of
his criminal trial, effectively lengthening the duration of the stay.
III. CONCLUSION.
Because of the interrelated nature of Lehmann's criminal prosecution
and civil defense, along with the purposes of both criminal and civil discovery,
we are unable to hold the trial court abused its discretion in staying civil
discovery pending the completion of Lehmann's criminal trial. Finding no
error, we conclude that a writ is unnecessary and affirm the decision of the
Court of Appeals. Unless otherwise stated in this Opinion, all pending motions
are denied.
All sitting. All concur.
32 Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004) (quoting
Bender, 343 S.W.2d at 801)).
15
COUNSEL FOR APPELLANT:
Robert Kenyon Meyer
James Lee Adams
Dinsmore 86 Shohl, LLP
COUNSEL FOR APPELLEE
Honorable Susan Schultz GibsOn, Judge
Jefferson Circuit Court
COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF
KENTUCKY:
Thomas B. Wine
Jefferson County Commonwealth's Attorney
Dorislee J. Gilbert
Special Assistant Attorney General
COUNSEL FOR REAL PARTIES IN INTEREST, L.M.B., L.M.D., L.M.L:
Michael Jay O'Hara
Gary John Sergent
O'Hara, Ruberg, Taylor, Sloan 8s Sergent
COUNSEL FOR REAL PARTY IN INTEREST, THE KENTUCKY DISTRICT
COUNCIL OF THE ASSEMBLIES OF GOD:
John R. Martin, Jr.
Landrum 86 Shouse, LLP
Tracy S. Prewitt
O'Bryan, Brown 86 Toner
COUNSEL FOR REAL PARTY IN INTEREST, THE ILLINOIS DISTRICT COUNCIL
OF THE ASSEMBLIES OF GOD:
Brian Scott Jones
16
COUNSEL FOR REAL PARTY IN INTEREST, TRINITY CHAPEL ASSEMBLY OF
GOD, INC.:
Matthew W. Breetz
Michael M. Denbow
Stites 86 Harbison, PLLC
COUNSEL FOR REAL PARTY IN INTEREST, GENERAL COUNCIL OF THE
ASSEMBLIES OF GOD:
Tiara B. Shoter
Boehl Stopher 86 Graves, LLP
17