Parallel civil proceedings may precede a criminal investigation, emanate from the announcement of criminal charges or arise during an internal investigation, mainly as a result of a company’s public disclosures about the existence or results of an investigation. These suits, whether brought by the government or a private plaintiff, raise a host of constitutional and privilege issues. For these reasons, and because the rules for discovery are very different in civil and criminal proceedings, advocates representing clients facing simultaneous or successive criminal and civil litigation must make strategic and tactical decisions with full knowledge that each decision may have a material impact on multiple matters.
This chapter surveys the types of parallel civil litigation that clients may face, either by the government or private parties. It goes on to address the differences in criminal and civil discovery that can complicate the management and defence of claims. Finally, this chapter describes the core challenges that arise when a client must manage civil litigation in the United States at the same time as related parallel investigations.
Although the Department of Justice (DOJ) is often associated with enforcement of the criminal laws of the United States – it is the only federal agency that has such jurisdiction – the civil division of the DOJ is also tasked with enforcement of some US civil laws....
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