SIDNEY A. FITZWATER, United States District Judge
Plaintiff Heller Healtheare Finance, Inc. ("Heller") sues defendants Irving D. Boyes, Stephen K. Morehead ("Morehead"), and Donald R. Iglehart for negligent misrepresentation. Heller moves for leave to redepose Morehead on the subject inter alia of recently discovered memoranda that he allegedly concealed. Morehead is presently under indictment in this court for offenses arising out of his alleged concealment of these memoranda and other documents. See United States v. Stephen Kent Morehead, No. 3:02-CR-057-H (N.D. Tex.) (Sanders, J.). In his response to Heller's motion for leave to redepose him, Morehead requests that the deposition request be stayed pending the resolution of the criminal case. The court grants Heller's motion for leave to redepose Morehead, but it stays the deposition until Morehead is acquitted or, if found guilty, is sentenced.
I
Fed.R.Civ.P. 30(a)(2)(B) provides:
A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties, . . the person to be examined already has been deposed in the case[.]
Rule 26(b)(2) provides, in relevant part, that the court may limit discovery if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Because the subject matter of the proposed second deposition concerns documents relevant to the instant case that Heller did not obtain until April 19, 2002 — after Morehead was indicted and after his deposition had been concluded — the court holds that Heller has established good cause to redepose Morehead and grants Heller's motion to the extent that it may depose him concerning the withheld documents and any topic related to the documents within the scope of Fed.R.Civ.P. 26 (b)(1).
II A
In his response to Heller's motion, Morehead asks inter alia that the court defer its ruling pending resolution of the criminal charges against him. See Morehead Br. at 4-5. He asserts that a requirement that he submit to a redeposition before the conclusion of his criminal case would unfairly force him to choose between his Fifth Amendment rights and his property rights at stake in the instant action. See id. at 2-3. Morehead maintains that, due to the pendency of the criminal case, he "is unable to explain the alleged failure to produce documents or describe the circumstances and/or timing pursuant to which such documents allegedly came into his possession." Id. at 2. He states that "[o]nce the criminal issues are resolved, however, [he] does not object to being redeposed on the limited issues raised in the documents which HELLER contends should have been produced and allegedly were not produced should the Court determine the same necessary." Id at 2-3.
"As the Fifth Circuit has instructed, in ruling on requests for stays of the civil side of parallel civil/criminal proceedings, `Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other. In some situations it may be appropriate to stay the civil proceeding. In others it may be preferable for the civil suit to proceed — unstayed.'" United States v. Gieger Transfer Serv., Inc., 174 F.R.D. 382, 385 (S.D. Miss. 1997) (quoting Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962) (citation omitted)). "Certainly, a district court may stay a civil proceeding during the pendency of a parallel criminal proceeding. Such a stay contemplates `special circumstances' and the need to avoid `substantial and irreparable prejudice.'" United States v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983) (citing SEC v. First Fin. Group of Tex., Inc., 659 F.2d 660, 668 (5th Cir. Oct. 1981)).
Courts from other jurisdictions have outlined several factors that should be considered in determining whether "special circumstances" warrant a stay, including; (1) the extent to which the issues in the criminal case overlap with those presented in the civil case; (2) the status of the criminal case, including whether the defendants have been indicted; (3) the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; (4) the private interests of and burden on the defendants; (5) the interests of the courts; and (6) the public interest. See, e.g., Trustees of Plumbers and Pipefitters Nat"l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) (citing Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 201-3 (Pollack, J.) ("Parallel Proceeding")); Volmar Distribs., Inc. v. The New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993).
C 1
The first question to be resolved is the extent to which the issues in Morehead's criminal case overlap with those in the present case, because self-incrimination is more likely if there is significant overlap. See Volmar Distribs., 152 F.R.D. at 39 (quoting Parallel Proceedings, 129 F.R.D. at 203) ("The most important factor at the threshold is the degree to which the civil issues overlap with the criminal issues."). "If there is no overlap, there would be no danger of self-incrimination and accordingly no need for a stay." Trustees, 886 F. Supp. at 1139 (citing Parallel Proceedings, 129 F.R.D. at 203).
The eleven-count superseding indictment charges Morehead with six counts of health care fraud under 18 U.S.C. § 1347 and 24. In brief, the grand jury charges in counts 1-6 that, while employed as an officer, shareholder, and director of Chartwell Healtheare, Inc. ("Chartwell"), Morehead engaged in a scheme and artifice to defraud Medicare by fraudulently inflating cost figures submitted in connection with Chartwell's nursing home operations through the use of fictitious consulting fees. Counts 7 and 8 charge concealment of records in the Chartwell bankruptcy case and the bankruptcy case of East Texas Healtheare, Inc. ("East Texas"), a Chartwell subsidiary, in violation of 18 U.S.C. § 152 (9). Counts 9 and 10 charge concealment of property in the Chartwell and East Texas bankruptcy cases, in violation of 18 U.S.C. § 152 (1). Morehead's alleged concealment of the documents that Heller obtained on April 19, 2002 appears to be encompassed within at least some of the charges of counts 7-10. Count 11 of the superseding indictment charges Morehead with perjury in the Chartwell bankruptcy case, in violation of 18 U.S.C. § 1621, for denying possession of any undisclosed documents related to Chartwell while testifying under oath during a deposition in a case related to the Chartwell bankruptcy, Michael Lee Andrews Trust, et al. v. Hesse, Civil Action No. 3:99-CV-1242-M (ND. Tex.) (Lynn, J.). It appears that the subject matter of the criminal charges against Morehead and the likely subject matter of the second deposition are substantially related. The court finds that this overlap of issues between the civil and criminal actions, while not entirely coterminous, weighs in favor of a stay.
The grand jury returned an indictment against Morehead on March 5, 2002. On May 7, 2002 it returned a superseding indictment.
It also charges him with commission of these offenses under a theory of aiding and abetting. See 18 U.S.C. § 2.
2
The second factor to be considered is the status of the criminal case. "A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct for two reasons: first, the likelihood that a defendant may make incriminating statements is greatest after an indictment has issued, and second, the prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved due to Speedy Trial Act considerations." Trustees, 886 F. Supp. at 1139. Because Morehead is under indictment rather than merely under investigation. the court finds that the status of the criminal case weighs in favor of a stay.
3
In ruling on a motion for stay, the court should also weigh the private interests of the plaintiff in proceeding expeditiously against the prejudice that will be caused by the delay that will result from the stay. Although Judge Sanders has determined that the criminal action is complex under the Speedy Trial Act, the trial is scheduled to begin on September 23, 2002. The court recognizes that, even if convicted, Morehead's Fifth Amendment privilege may continue throughout the pendency of his direct appeal. See, e.g., Frank v. United States, 347 F.2d 486, 491 (D.C. Cir. 1965). Because the issuance and duration of a stay are committed to the court's sound discretion, and because imposition of a stay lasting throughout the duration of Morehead's direct appeal (if he is convicted) would likely be unduly burdensome to Heller's interests as plaintiff, the court contemplates that this stay will remain in effect only through sentencing. If he is acquitted, the stay will terminate upon the return of a not guilty verdict. Given the discovery and briefing period authorized by the court in its memorandum opinion and order filed today that addresses inter alia pending summary judgment motions, the court concludes that any prejudice that will accrue to Heller as a consequence of delaying its redeposition of Morehead until conclusion of the criminal action via not guilty verdict or sentencing will be minimal. Therefore, the court concludes that consideration of the burden to be placed on the plaintiff does not weigh heavily against a stay.
4
The court has also considered the private interest of Morehead in securing the stay and the burden on him that would result were the stay denied. As discussed above, absent a stay, Morehead faces a conflict between asserting his Fifth Amendment rights and defending the civil action. This conflict may be largely, if not completely, eliminated by granting a stay. Moreover, the court discerns no substantial prejudice to the other defendants from granting of a stay. Therefore, the court finds that Morehead's private interest weighs in favor of a stay.
5
Because the court concludes that granting a stay will not unduly interfere with the court's management of its docket, it finds that the court's interests do not weigh against a stay. Additionally, the court holds that the interests of the public do not weigh against a stay.
6
Based on its consideration of the above factors, and in the interests of justice, the court grants Morehead's motion to stay his redeposition by Heller, and imposes a stay until such time as a verdict of not guilty has been returned or sentencing has been completed in the criminal action.
If subsequent events provide Morehead good cause to do so, he may move for an extension of the stay entered today.
* * *
For the reasons set out, the court grants Heller's April 22, 2002 motion for leave to redepose Morehead, but it stays the deposition until Morehead is acquitted or, if found guilty, is sentenced in United States v. Stephen Kent Morehead, No. 3:02-CR-057-H.
SO ORDERED.