least on paper for twenty months but throughout that period has been stayed throughout have heard our ability to pursue it or advance in any way has been barred by a series of state orders that have been granted without a intolerable and that they would end this year or next year or for some years to come indeed they could easily extend until two thousand and ten when assuming no more bad acts on the part of  limitations periods for criminal actions will begin to end the orders that we deal with are unprecedented and are far outside the range of any permissible discretion the orders disregarded precedents that have consistently foreclosed indefinite stays they disregarded precedents that act with very rare and unusual or rare exceptions for unusual circumstances that led to it what's particularly egregious in this case is that the court entered for stay orders immunizing thirty one defendants from any obligation whatsoever in the civil court and did so without even once on the first order or any other time explaining the rationale for doing it or indicating that it followed the balancing test that had been imposed upon it it's not only the orders in this case your honor let me take them and see your honour's let me let me take them in sequence the very first order that was granted stayed in the case as to seven defendants none of whom had been indicted then none of whom had been indicted at any time since who therefore had never been answerable for their actions either in a criminal case or in the civil action  routine to allow civil actions to go forward against even indicted people side by side with criminal cases so it's our position and i think it's borne out by those cases that those people who are to think who ha been indicted are not entitled to stay they are entitled to invoke the fifth amendment so as to indicate their their right not to testify against themselves but that can't be extended into an immunity from civil action it can't be extended in a civil action beyond the ground that you're occupies in a criminal is to say not only need i'm not testify but i can stop you from getting any other law enforcement person may have it's really inconsistent with the civil action to say that here we can't ask questions that he's obligated in fact to speak really about to prosecutors that he's done so where people have been indicted to consult with criminal penalty and so the make up and informed decision about whether to invoke away this fifth amendment right and then permit you to act in accordance with that without consultation and that decision when the rights are vindicated and to go beyond that i think unbalances unbalances the interests of the defendants and and the victims there may be cases where simply because of data conference on this because it may be that we've got the folks who now moved out of that status and it's like guilty or or move forward to trial the fact that they've been issued doesn't prevent you from coming back even if that is complaint that the first order of the second order has a slight difference of wording but much the same the second the third and ultimately i believe the fourth order stay the action pending the resolutions of any criminal investigations right we've come in to the district court on four separate occasions and those occasions where we've been had the opportunity to put in opposition papers as well as in our motion to every argue and tell the court that for under any decision to stay at all the court has made it plain that it is not in the least bit inclined to modify these days it's not a lease inclined to do anything other than to ratify it each time the action is before ourselves in a situation where the just record has done everything the district court could possibly do to tell us that things are not going to change that have already you faced some defendants who it was conceded by both sides were not under investigation nor certainly there are a great many defendants here who have met not been indicted as far as i know no specific action has been taken in the case that they're of value to be it appeared to me that in some of the subsequent waves that the justification for the leader's face was that the defendants couldn't gain complete discovery because earlier stays had been the issue that the some defendants and that would  the case when things should all be done and when you get to that period in which legislature by asking those dates is effectively decided the cases become stale stude difficult to fairly present one side or another that's when you can begin to try with whatever evidence may be left against whatever defendants may still be in the jurisdiction that turns it upside down so the argument that we can have only limited discovery now is reason for putting everything off to later is backwards let's get whatever evidence we can while it's fresh there are a great many witnesses out there who have no fifth amendment concerns there are patients there are third parties there are corporations with no you know fifth and then managers to start with how can we know link the relevant statute of limitations in the criminal case if we don't know exactly what offenses are being contemplated or what the fences ultimately will be charged but we know minimal statutes of limitations for fraud for us for tax evasion we know that  twenty months we've been held in check in the year or years will be held in check or already in a tolerably long period the cases that say you cannot impose an indefinite stay and define that as a stay until the end and some other action speak horrible day by day and the prospect of waiting for additional years till the end of the limitations period to start gathering evidence is just is exactly the kind of hard work of the kind of hard criminal nature and not simply of the criminal nature technically that of a nature that could well entice a prosecutor to take action to notice that the notion that the reward for that can be an immunity in civil actions that no one else gets is itself a perversion of the law and particularly with respect to the rico law that we're dealing with here rico was an act and to give a stronger remedy to victims of serious crime by definition whenever so if that were grounds for issuing a stay we have a situation where rico actions could go unimpeded when you're dealing with garden variety cases that aren't going to entice a prosecutor to take action but now when you're dealing with as an appeal as an exception and we've got cases you are approaching things differently what what is an appropriate the way what woman does it become then justice and it occurred to me that all of these cases that talk about whether or not a review of the station be done by the peel they're all really talking about the sort of stuff that is reviewed more properly on a petition for writ where there is an injustice an exception it needs to be made and a given case and i would say so that by looking at the cone and the cone case and reading what those courts are talking about and looking at the other cases  down you will basically find that the issue is whether or not in a particular case under a particular set of circumstances there should be appellate review by way of ret and i think that would are laid out the exceptional circumstances are laid out the clear abuse irreparable harm is laid out injustices laid out and that could be that on a petition early on as to whether or not you go forward  limitations plus is this court has pointed out we're only reviewing what was before the trial court at the time this was made it doesn't change a change of circumstances where we look at  balancing may be different at a later point in time it's not for us at this point to try to speculate what may or may not happen in the future we know there's a trial supposed to start in federal court in february february two thousand  i don't understand though how assumptions can be made on the basis of statutes of limitations when it seems to me none of the civil parties is aware exactly of what crimes are under investigation or what the a political statutes of limitation maybe they may be longer than five years in the case of federal tax laws for example well how can it be said that there's a clear limit on the state this is about abuse of discretion when it comes to the fifth amendment constitutional right this i agree you don't always get to say sometimes that can be used to unity sometimes you just assert your right the there is always a potential of something  several full fledged criminal investigations at both the federal and the state level threats that we're in and you're going to be indicted and then we even had counsel here in court say the fact that they haven't been indicted don't don't hold your breath and all these threats to worry about constitutional rights it's about this trial judge clearly abuses discretion not whether or not you or i may think differently or done something differently but whether or not judge after clearly having an abuse of discretion standard but if we have no idea what that why the district court did what he did how are we supposed to tell whether he is of use discretion or not by you can we i guess we can take the position folks are but it seems to me that we need to use a rule of reason to a rule of of common sense looking what's out there and looking what are the factors that are obviously facing a judge after and the pleading replete with this the the arguments that were advanced in the pleadings circumstances make it very clear that the trial judge had a number of factors to weigh including unworkable protective order there's no way this could have been there on the same area that are vetting the same issues that will help clarify things refocus create clarity perhaps maybe even make a civil suit and that's a story that's still up to the players whether or not they want to pursue it behind your honor tracey crean for defense michel ruben stephen ruben daniel rose m g anaheim west outpatient surgery center st francis outpatient medical center and her county clinics and i'd like five minutes your honor and reserve the rest of the time for the other council where the district court was faced with this case at that point in two thousand and five there was already one pending federal case there was already one pending state case my clients had banned or the subject of a search warrant in state court and the plaintiffs who are the victims in the case the plaintiff the talents were the victims in the case filed the case in central district court with fifty defendants alleging three separate and rico enterprises they could have chosen to divide the case more clearly with each enterprise separate and make it a more manageable cas but not only did they allege the three separate rico enterprises they also alleged that everyone was a coconspirator of the other created a very difficult case when you have multiple defendants there are now twenty four individual defendants related to those three medical clinic enterprises that have been indicted they've named fifty total defendants so we have a situation where a trial court was faced with a situation of what they're going to do when certain defendants assert the fifth amendment and other defendants are going to have the difficulty of either taking their deposition or if they themselves decide to go ahead and assert the fifth amendment fight evidentiary sanctions and the like that's going to happen in the civil case the appellants are free to go back to the district court and sever out certain defendants indicate who has already pled guilty they can adjust their civil case accordingly they bear a good portion of the responsibility for why the case is in the situation that it is with this perspective cooperating defendants certainly no government entities  discovery in order to conduct civil civil discovery for the criminal defense now all of those although all those reasons are now set forth in judge hatters decision it can certainly be inf that all of those and the reasons set forth in the brief are logical reasons to support his order for the court have any other questions with respect to the when the state could be released as to certain one of the concerns that the individual defendants have is having the victim participate fully in the investigation be part of the criminal process and then decide to file the federal rico lawsuit using the threat of the criminal case in order to advance their civil case if you tell us who want to dismiss out certain defendants refile certainly  statute of limitations is pending on the criminal side they would be able to refile either in state court in federal court and pursue their interest for appellants to say that the statute of limitations will at least go to two thousand  that depends on the individual defendants it is possible for the appellants to go and seek an agreement by the government to either give immunity to certain defendants or that  of criminal investigations that that alone justifies a stay is to those non suspected defendants their inability in other words to conduct full discovery as to all defendants justifies it's a status as to them even though they're not coconspirators perhaps if they agree to stipulate and amend their complaint so that everyone we're not a coconspirator of the other it would lessen our problem so i don't think that they can play those allegations and then complain when the ramifications occur when you've got the pending criminal cases or the other federal court if anything if the district court here had entered certain orders they could have easily conflicted with the other federal pending court case and could have conflicted with the other two pending state cases i think that the district court looked at the entire situation knowing how these cases proceed and what happened it made reasonable determinations understanding the complexity of the case the difficult discovery issues and that probably within a year or two and with a couple of the criminal case resolved and certain individuals pleading out for either being acquitted or investigations being wrapped up that at a certain point it would be in a better position to determine which individuals could go forward in the case and which could not appellants have never gone back to the trial court and asked for any type of nature of the lawsuit they have the sensually pled the circuit from the head to the tail and it was almost inevitable given that this was in front of a trial court that not require a rico statement that these complications would arise classes of indicted the defendants which were inevitable you have kicked you out defendants who have had search warrants served upon their offices but have not yet been indicted and the speaking although i suppose somewhat embarrassingly it's been pointed out to me some of the positions have been asked to cooperate with the federal authorities and discussions have gone on with respect to the nature of that discussion queen for the immunity that sort of thing that the various gradient of potential targets here creates a situation which the plaintiffs have created and which purchased in this situation where we are really on the razor's edge of decisions with respect to the fifth amendment that are not a loser either quite real and they are quite complex simply because of the number of people that have brought in have been brought into this web or rather i should say net and just to conclude the essence of th problem which all the defense counsel are really facing you look at it if you look at the complaint you see that there are the defendant doctors and there are not just in doctors there's no bright line between which position was opposed to for that they were treating a patient who was coached as to what symptomology to present and therefore they must have been in on the conspiracy what you're facing a real decisions by real physicians with real careers have to decide well at one point i'm i going to not shield myself and be exposed criminally so these practical problems i know are not merely theoretical and finally with respect to the piecemeal nature of litigation if you start listing it as to class one class to a class three what you're going to have is litigation i could quite literally go on for seven or eight years as the various classes became exposed to potential civil litigation and then the potential for inconsistent was any evidence really showing the age of present to present any findings on the only the only facts that were presented to the court was that a certain number of defendants have been indicted and i must say a far smaller number than i believe it was operated when confronted with stay operations really does have limits to it it does have hard and fast boundaries and that within that range yes perhaps there are some room for discretion and perhaps there are explanations would be beneficial but outside that range and the and the range we're talking about the wall that apply here are the hard and fast rules against indefinite stays and this fits the definition of an indefinite stay and a hard and fast rules against giving