Neither the Delaware Supreme Court, nor other Delaware state courts have “articulated a specific test” to analyze whether to stay a civil case based on the pendency of a criminal case or investigation. The federal courts have, however, had the opportunity to address this issue frequently. Federal courts consider a number of factors in their analysis of whether to stay a civil case during the pendency of a criminal case or investigation. In the federal multi-factor test, the two primary considerations are: (1) “the status of the criminal case, including whether the defendants have been indicted” and (2) “the extent to which the issues in the criminal and civil cases overlap.” These two “overarching” considerations enable a court to assess the imminence and severity of the threat of criminal prosecution, and whether the civil case will have the effect of undermining a defendant’s Fifth Amendment privilege against self-incrimination, or otherwise, prejudicing a defendant’s ability to defend the criminal case.
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