Behrens v. Blunk

that “things of this nature were regulated as securities”
and that they were hoping to find an exemption. He also
claimed to have said as much to Woolley. Klasna admit-
ted that he did not remember whether he had specifically
asked Woolley to look into securities law, but he said that
it was implied, if not stated outright.
Klasna stated that FFG had collected funds for the sale
of the FIT Program before Woolley rendered her opin-
ion, but that those funds were put in safekeeping until
they were certain the FIT Program could be released.
Klasna could not recall a specific conversation with
Woolley about whether the FIT Program was a security
until after investors raised the issue. Klasna alleged that
even after investors questioned whether the FIT Program
required registration, Woolley continued to assure him
that the FIT Program met the definition of a trust and
was exempt. Klasna also stated he did not believe that
Woolley understood the FIT Program or the potential
securities problems.
The remainder of the opinion shall remain unmodified.
Former opinion modiFied.
motion For rehearing overruled.
Wright, J., not participating.
Bryan S. BehrenS, an individual , et al ., appellantS and
croSS-appelleeS, v. chriStian r. Blunk , an individual ,
et al ., appelleeS and croSS-appellantS.
792 N.W.2d 159
Filed December 30, 2010. 	No. S-10-342.
1. Pretrial Procedure: Appeal and Error. An appellate court reviews a trial
court’s sanction for failure to comply with a proper discovery order for abuse
of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
3. Judgments: Appeal and Error. As to questions of law, an appellate court
decides such questions independently of the lower court’s conclusions.
984 	280 NebrASKA rePorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

4. Rules of the Supreme Court: Pretrial Procedure. The Nebraska rules of
Discovery are substantially patterned after the corresponding discovery rules in
the Federal rules of Civil Procedure. And Nebraska courts will look to federal
decisions interpreting corresponding federal rules for guidance in construing
similar Nebraska rules.
5. Constitutional Law: Self-Incrimination: Pretrial Procedure. The constitu-
tional privilege against self-incrimination applies to discovery in a civil action.
6. Constitutional Law: Self-Incrimination. The Fifth Amendment privilege against
compulsory self-incrimination is personal; it attaches to the person, not to poten-
tially incriminating information or materials in the hands of third parties.
7. Corporations: Self-Incrimination. A corporation has no right to invoke the
privilege against self-incrimination.
8. Rules of the Supreme Court: Pretrial Procedure: Parties. Under Neb. Ct.
r. Disc. § 6-326(b)(1), whether a party seeking discovery is the plaintiff or
defendant, that party is only entitled to discovery of nonprivileged information
or material.
9. Actions: Constitutional Law: Pretrial Procedure: Self-Incrimination. before
a trial court dismisses an action because the plaintiff has invoked the Fifth
Amendment in response to discovery requests, it must first (1) balance the par-
ties’ interests and (2) consider whether a less drastic remedy could accommo-
date the plaintiff’s privilege against self-incrimination and maintain fairness to
the defendant.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J. patrick mullen, Judge. reversed and remanded for further
proceedings.
David A. Domina and Terry A. White, of Domina Law
Group, P.C., L.L.o., for appellants.
Mark C. Laughlin and Patrick S. Cooper, of Fraser Stryker,
P.C., L.L.o., for appellees Christian r. blunk and berkshire &
blunk.
William r. Johnson, of Lamson, Dugan & Murray, L.L.P.,
for appellees Christian r. blunk and Abrahams, Kaslow &
Cassman, L.L.P.
heavican, c.J., connolly, gerrard, Stephan, mccormack,
and miller-lerman, JJ.
connolly, J.
SUMMArY
bryan S. behrens and three other plaintiffs appeal from the
district court’s order that dismissed with prejudice their attorney
beHreNS v. bLUNK 	985
Cite as 280 Neb. 984

malpractice action against Christian r. blunk and the law firms
for which blunk worked. After behrens invoked his Fifth
Amendment privilege against compulsory self-incrimination,
the court dismissed the action as a sanction for behrens’ fail-
ure to comply with its order compelling discovery. We con-
clude that the court erred when it failed to balance the parties’
interests and consider less drastic remedies before dismiss-
ing the plaintiffs’ action. We reverse, and remand for further
proceedings.
bACKGroUND
In December 2008, the plaintiffs filed their complaint. The
plaintiffs include the following parties: behrens; the bryan
behrens Co., Inc. (bbC), a Nebraska corporation that behrens
owns; National Investments, Inc. (NII), a Nevada corporation
that behrens owns; and Thomas Stalnaker, a court-appointed
receiver requested by the Securities and exchange Commission
to collect and make available for claims all assets owned by
behrens, bbC, and NII. The plaintiffs sued blunk for legal
malpractice. In addition, the plaintiffs sued berkshire and
blunk, blunk’s former partnership. They also sued Abrahams
Kaslow & Cassman LLP, the firm that later employed blunk.
The plaintiffs alleged that blunk’s negligent acts occurred
when he was employed at both firms. In April 2009, the federal
government indicted behrens on charges of securities fraud,
mail fraud, wire fraud, and money laundering.
criminal allegationS
The criminal allegations give context to the civil action. The
indictment alleged a Ponzi scheme. behrens owned a company
that provided financial planning advice and offered insur-
ance products to clients. He was registered to sell securities.
In 2002, he purchased NII, which was a Nevada real estate
investment company. behrens defrauded 25 NII investors out
of $8.2 million. He induced some of his insurance and securi-
ties clients to cash out their annuities or investment accounts
and invest in NII. He told investors that (1) they were investing
in NII; (2) their investments would produce a 7- to 9-percent
rate of return, with little to no risk; and (3) they would receive
986 	280 NebrASKA rePorTS

back their principal in 5 to 10 years. behrens would normally
issue a promissory note to investors with these promises.
Instead of investing their money in real estate, he used it to
support an extravagant personal lifestyle and other businesses
that he acquired. He deposited the investors’ money into bank
accounts that he controlled and then transferred the money to
other bank accounts to conceal its source. He used the invest-
ment money from later investors to make monthly payments to
earlier investors.
plaintiFFS’ civil action
In the plaintiffs’ civil complaint, they generally alleged that
blunk negligently advised behrens to purchase NII to “bor-
row” funds from behrens’ insurance and investment clients and
rechannel the funds through bbC. Specifically, blunk allegedly
advised behrens to (1) issue high-interest promissory notes
from NII, which blunk drafted; (2) use investors’ money to cre-
ate an investment pool; (3) have NII loan the money to behrens;
(4) create bbC to borrow funds from behrens to acquire and
operate retail businesses. behrens allegedly followed blunk’s
advice in using bbC to acquire retail businesses, including
a floral business, convenience store, and grocery store. The
complaint also alleged that blunk personally borrowed $55,000
from the investment fund and failed to repay the loan. The
complaint included a second cause of action to recover the loan
principal plus interest.
blunk alleged several affirmative defenses, including that
the plaintiffs’ claims were barred under the doctrines of con-
tributory negligence, equitable estoppel, unclean hands, and
mitigation of damages.
procedural hiStory
As stated, the federal government filed its indictment in
April 2009. In May, the defendants in the civil case issued
requests for documents and interrogatories. on June 8, the
plaintiffs moved for an order to stay the civil action pending
the criminal proceeding. The plaintiffs attached the federal
indictment. In July, the defendants moved to compel discov-
ery. on July 28, the plaintiffs’ attorney wrote the defendants’
beHreNS v. bLUNK 	987
Cite as 280 Neb. 984

attorney that behrens would invoke his Fifth Amendment right
if he requested a deposition. behrens’ federal public defender
had advised behrens not to respond to the civil discovery
requests and to invoke his Fifth Amendment privilege until the
criminal trial was completed.
In August 2009, blunk filed a suggestion of bankruptcy with
the court. The district court clerk told the plaintiffs’ attorney
that the court had stayed further proceedings because of the
bankruptcy filing. In october, the court dismissed the action
without prejudice for lack of prosecution, but the district court
reinstated the action in November.
In November 2009, the defendants again moved to compel
discovery. The court’s docket sheet shows that the court sus-
tained the motion in part, and in part overruled it, but the court
apparently did not issue a written order. This order, however,
effectively overruled the motion to stay, and the defendants
agree that the court did overrule that motion. In December,
the defendants moved for summary judgment. They asked for
a dismissal, arguing that the plaintiffs could not maintain the
action and that behrens could not assert his Fifth Amendment
privilege against self-incrimination.
In January 2010, the plaintiffs responded to the defendant
law firms’ requests for documents and interrogatories. behrens
repeated that his attorney had advised him not to incriminate
himself and that he was invoking his Fifth Amendment privi-
lege. He stated that his criminal trial was scheduled for April
12, 2010 (10 weeks later) and that after the trial, he would
respond. For most individual requests, he stated that a more
complete set of responsive documents were in blunk’s or the
defendant law firms’ possession. behrens also stated that to
the extent documents were produced by the defendants or in
the receiver’s possession, they would be made available to
the defendants for review and copying at a mutually conve-
nient time. behrens invoked his Fifth Amendment privilege
in response to requests for promissory notes, bank statements,
financial statements, tax returns, articles of incorporation, and
documents from other attorneys who had represented him.
behrens gave the same basic response to interrogatories. After
receiving these responses, the defendants moved for dismissal
988 	280 NebrASKA rePorTS

as a sanction for the plaintiffs’ failure to comply with the dis-
covery order.
In March 2010, the court overruled the defendants’ motion
for summary judgment. It concluded that the plaintiffs’ failure
to comply with discovery requests did not affect the genuine
issues of material fact raised by the complaint. but the court
granted the motion to dismiss the action as a discovery sanc-
tion. The court recognized that behrens’ criminal trial was
still pending. It relied, however, on cases holding that a party
can invoke his or her Fifth Amendment rights as a shield in a
party’s defense, but not as a sword to limit discovery in a civil
case that the party brings against others. The court concluded
that the delay had prejudiced the defendants and dismissed
the action.
ASSIGNMeNTS oF error
The 	plaintiffs 	assign, 	restated, 	that 	the 	court 	erred 	as
follows:
(1) concluding that behrens could not assert his privilege
against self-incrimination in a civil case;
(2) finding that the plaintiffs had failed to respond to discov-
ery requests when they had identified the receiver as the party
having the requested information and documents and agreed to
make the documents available;
(3) finding that the defendants were prejudiced by a 6-week
delay when they failed to adduce any facts showing preju-
dice; and
(4) dismissing the action.
on cross-appeal, blunk and the defendant law firms assign
that the court erred in overruling their motion for summary
judgment.
STANDArD oF reVIeW
[1-3] We review a trial court’s sanction for failure to com-
ply with a proper discovery order for abuse of discretion.1 A
judicial abuse of discretion exists when reasons or rulings of
1 See, Martindale v. Weir, 254 Neb. 517, 577 N.W.2d 287 (1998); Greenwalt
v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).
beHreNS v. bLUNK 	989
Cite as 280 Neb. 984

a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition.2 As to questions of law, however,
we decide such questions independently of the lower court’s
conclusions.3
[4] We note that the plaintiffs urge us to adopt the eighth
Circuit’s rule of closely scrutinizing an order of dismissal as
a discovery sanction.4 It is true that the Nebraska rules of
Discovery are substantially patterned after the corresponding
discovery rules in the Federal rules of Civil Procedure. And
Nebraska courts will look to federal decisions interpreting
corresponding federal rules for guidance in construing similar
Nebraska rules.5 but other federal courts, including the U.S.
Supreme Court, have reviewed orders of dismissal as a discov-
ery sanction for abuse of discretion.6
All federal courts recognize that an order of dismissal is
among the harshest sanctions a court can impose for discovery
violations.7 Instead of applying a higher level of scrutiny to
review orders of dismissal, most federal courts have set out
2 Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
3 See D & S Realty v. Markel Ins. Co., ante p. 567, 789 N.W.2d 1 (2010).
4 Sentis Group, Inc., Coral Group, Inc. v. Shell Oil, 559 F.3d 888 (8th Cir.
2009).
5 See Gernstein v. Lake, 259 Neb. 479, 610 N.W.2d 714 (2000).
6 See, National Hockey League v. Met. Hockey Club, 427 U.S. 639, 96 S.
Ct. 2778, 49 L. ed. 2d 747 (1976); Vallejo v. Santini-Padilla, 607 F.3d 1
(1st Cir. 2010); Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298 (2d Cir.
2009); Collins v. Illinois, 554 F.3d 693 (7th Cir. 2009); Ashby v. McKenna,
331 F.3d 1148 (10th Cir. 2003); Ware v. Rodale Press, Inc., 322 F.3d 218
(3d Cir. 2003); Valley Engineers Inc. v. Electric Engineering Co., 158 F.3d
1051 (9th Cir. 1998); Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894
(5th Cir. 1997); Freeland v. Amigo, 103 F.3d 1271 (6th Cir. 1997); U.S.
v. Shaffer Equipment Co., 11 F.3d 450 (4th Cir. 1993); Shortz v. City of
Tuskegee, Ala., 352 Fed. Appx. 355 (11th Cir. 2009).
7 See, e.g., National Hockey League, supra note 6; Smith v. Gold Dust
Casino, 526 F.3d 402 (8th Cir. 2008); Benitez-Garcia v. Gonzalez-Vega,
468 F.3d 1 (1st Cir. 2006); Zocaras v. Castro, 465 F.3d 479 (11th Cir.
2006).
990 	280 NebrASKA rePorTS

standards or factors that they consider in determining whether
a trial court has abused its discretion.8
We agree with the majority approach. An order of dismissal
is obviously a death sentence for a plaintiff’s action. but as the
U.S. Supreme Court has stated, in appropriate circumstances,
a district court must have the discretion to impose the extreme
sanction of dismissal: This discretion exists “not merely to
penalize those whose conduct may be deemed to warrant such
a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.”9 In this case, we
will set out the standard, as a matter of law, for dismissing an
action when a party has invoked his or her privilege against
self-incrimination.
ANALYSIS
The court apparently did not issue a written order compel-
ling discovery or overruling the plaintiffs’ motion to stay. In its
order dismissing the action, the court assumed that behrens had
a right to refuse to respond to discovery on Fifth Amendment
grounds. but it concluded that the plaintiffs could not maintain
their civil action against the defendants because behrens had
asserted his privilege against self-incrimination.
The defendants rely on cases in which courts have held that
a civil case can be dismissed if the plaintiff invokes his or her
privilege against self-incrimination and refuses to permit dis-
covery.10 but the most recent federal appellate case they cite
8 See, Southern New England Telephone Co. v. Global NAPs, 624 F.3d 123
(2d Cir. 2010); Garcia v. Berkshire Life Ins. Co. of America, 569 F.3d
1174 (10th Cir. 2009); Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005);
Computer Task Group, Inc. v. Brotby, 364 F.3d 1112 (9th Cir. 2004); Rice
v. City of Chicago, 333 F.3d 780 (7th Cir. 2003); U.S. v. $8,221,877.16
in U.S. Currency, 330 F.3d 141 (3d Cir. 2003); Gonzalez, supra note 6;
Mut. Federal Sav. & Loan v. Richards & Associates, 872 F.2d 88 (4th Cir.
1989).
9 National Hockey League, supra note 6, 427 U.S. at 643.
10 See, e.g., Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964); Christenson
v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968); Franklin v.
Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Laverne v. Incorporated
Vil. of Laurel Hollow, 18 N.Y.2d 635, 219 N.e.2d 294, 272 N.Y.S.2d 780
(1966).
beHreNS v. bLUNK 	991
Cite as 280 Neb. 984

was decided in 1969.11 And the Ninth Circuit later backed away
from that case. It clarified that under U.S. Supreme Court prec-
edent, a plaintiff’s proper invocation of the Fifth Amendment
cannot result in automatic dismissal.12
And federal cases that are more recent agree with that state-
ment. Federal courts have rejected automatic dismissal of a
civil action based solely on the plaintiff’s invocation of his
or her Fifth Amendment privilege against self-incrimination
during discovery.13 We agree with these courts that a rule of
automatic dismissal is inconsistent with U.S. Supreme Court
precedent and discovery rules protecting the privilege.
[5] As we have previously recognized, under U.S. Supreme
Court 	decisions, 	the 	constitutional 	privilege 	against 	self-
incrimination applies to discovery in a civil action:
“Though by its terms applicable only in criminal pro-
ceedings, the Fifth Amendment privilege against self-
incrimination has long been held to be properly asserted
by parties or witnesses in civil proceedings.[14] The privi-
lege may be invoked by anyone whose statements could
incriminate him, either by directly admitting the com-
mission of illegal acts or by relating information which
would ‘furnish a link in the chain of evidence needed to
prosecute the claimant.’[15] The privilege protects persons
‘against being forced to make incriminating disclosures at
any stage of the proceeding if they could not be compelled
11 See Lyons v. Johnson, 415 F.2d 540 (9th Cir. 1969).
12 See Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979).
13 See, McMullen v. Bay Ship Management, 335 F.3d 215 (3d Cir. 2003);
Serafino v. Hasbro, Inc., 82 F.3d 515 (1st Cir. 1996); Wehling v. Columbia
Broadcasting System, 608 F.2d 1084 (5th Cir. 1979); Campbell, supra note
12. See, also, Steffan v. Cheney, 920 F.2d 74 (D.C. Cir. 1990); Attorney
General of U.S. v. Irish People, Inc., 684 F.2d 928 (D.C. Cir. 1982); 8
Charles Alan Wright et al., Federal Practice and Procedure § 2018 (3d ed.
2010) (citing cases).
14 McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 69 L. ed. 158
(1924).
15 Hoffman v. United States, 341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. ed.
1118 (1951).
992 	280 NebrASKA rePorTS

to make such disclosures as a witness at trial.’[16] It there-
fore applies not only at trial, but at the discovery stage
as well.[17]”18
Under this precedent, behrens, as a plaintiff, was obviously a
party that could assert the privilege in response to requests for
incriminating information or materials.
[6,7] We recognize that the Fifth Amendment privilege
against compulsory self-incrimination is personal; it attaches
to the person, not to potentially incriminating information or
materials in the hands of third parties.19 but the record does
not reflect that behrens turned over any of the requested infor-
mation or materials to the receiver. So for this analysis, we
assume that behrens validly invoked the privilege. We have
also held that a corporation has no right to invoke the privilege
against self-incrimination.20 Here, the court did not consider
separate sanctions against these plaintiffs. Thus, we consider
only whether its sanction of dismissal was proper based on
behrens’ invocation of his Fifth Amendment privilege.
[8] Under Neb. Ct. r. Disc. § 6-337(b)(2), if a party fails
to obey a court order to provide or permit discovery, the court
may impose further “orders in regard to the failure as are just,”
including “dismissing the action.” but the rule is not without
limitations. Under Neb. Ct. r. Disc. § 6-326(b)(1), a party may
obtain discovery “regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking
16 National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 927 (7th
Cir. 1983).
17 See, Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. ed. 2d 274
(1973); United States v. Kordel, 397 U.S. 1, 90 S. Ct. 763, 25 L. ed. 2d 1
(1970).
18 Wilson v. Misko, 244 Neb. 526, 546-47, 508 N.W.2d 238, 252 (1993),
quoting Kramer v. Levitt, 79 Md. App. 575, 558 A.2d 760 (1989).
19 See, SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 104 S. Ct. 2720, 81 L.
ed. 2d 615 (1984); United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160,
45 L. ed. 2d 141 (1975); Schuessler v. Benchmark Mktg. & Consulting,
243 Neb. 425, 500 N.W.2d 529 (1993).
20 See Schuessler, supra note 19.
beHreNS v. bLUNK 	993
Cite as 280 Neb. 984

discovery.” (emphasis supplied.) Thus, under § 6-326(b)(1),
whether a party seeking discovery is the plaintiff or defendant,
that party is only entitled to discovery of nonprivileged infor-
mation or material.
Section 6-326(b)(1) of our discovery rules mirrors Fed.
r. Civ. P. 26(b)(1). because the Fifth Amendment privilege
applies to material subject to discovery, federal courts have
held that a valid invocation of the privilege is proper under rule
26 and does not justify a court’s imposition of sanctions.21 In
addition, the U.S. Supreme Court has prohibited states from
imposing penalties that make it costly for a party to invoke
the privilege:
“The Fourteenth Amendment secures against state inva-
sion the same privilege that the Fifth Amendment guaran-
tees against federal infringement—the right of a person to
remain silent unless he chooses to speak in the unfettered
exercise of his own will, and to suffer no penalty . . . for
such silence.” . . .
In this context “penalty” is not restricted to fine or
imprisonment. It means . . . the imposition of any sanc-
tion which makes assertion of the Fifth Amendment privi-
lege “costly.”22
Following Supreme Court precedent, federal courts have
also held that an automatic dismissal is a costly and impermis-
sible penalty for invoking the privilege.23 Yet, federal courts
have recognized that due process precludes plaintiffs from
proceeding to trial while denying the very materials needed by
their adversaries to mount a defense: “In a civil trial, a party’s
invocation of the privilege may be proper, but it does not take
place in a vacuum; the rights of the other litigant are entitled to
21 See, S.E.C. v. Graystone Nash, Inc., 25 F.3d 187 (3d Cir. 1994); Wehling,
supra note 13.
22 Spevack v. Klein, 385 U.S. 511, 514-15, 87 S. Ct. 625, 17 L. ed. 2d 574
(1967) (citations omitted).
23 See, e.g., Serafino, supra note 13; Wehling, supra note 13; Campbell,
supra note 12.
994 	280 NebrASKA rePorTS

consideration as well.”24 Instead of upholding a dismissal any-
time a plaintiff invokes the Fifth Amendment, these courts have
concluded that the issue is whether the court can accommodate
the privilege and maintain fairness for the party seeking discov-
ery. These courts require a balancing of the parties’ competing
interests and consideration of less drastic remedies.25
When plaintiff’s silence is constitutionally guaranteed,
dismissal is appropriate only where other, less burden-
some, remedies would be an ineffective means of prevent-
ing unfairness to defendant.
The district court’s task in this case was complicated
by the presence of competing constitutional and pro-
cedural rights. In focusing solely on [the defendant’s]
right to the requested information, the court failed to
attribute any weight to [the plaintiff’s] right to his day in
court. . . . [T]he court should have measured the relative
weights of the parties’ competing interests with a view
toward accommodating those interests, if possible. This
balancing-of-interests approach ensures that the rights of
both parties are taken into consideration before the court
decides whose rights predominate.26
It is true that in some circumstances, dismissal may be nec-
essary to prevent prejudice to the party seeking discovery.27
In those circumstances, a court may impose a dismissal as a
necessary measure to prevent unduly disadvantaging the oppo-
nent—not as a sanction for invoking the privilege against self-
incrimination.28 but “‘[t]he detriment to the party asserting [the
privilege against self-incrimination] should be no more than is
24 Graystone Nash, Inc., supra note 21, 25 F.3d at 191. Accord Wehling,
supra note 13.
25 See, McMullen, supra note 13, citing Graystone Nash, Inc., supra note 21;
Serafino, supra note 13; Wehling, supra note 13; and 8 Wright et al., supra
note 13.
26 See Wehling, supra note 13, 608 F.2d at 1088.
27 See Serafino, supra note 13.
28 See id., citing Wehling, supra note 13.
beHreNS v. bLUNK 	995
Cite as 280 Neb. 984

necessary to prevent unfair and unnecessary prejudice to the
other side.’”29
[9] We have previously held that “[t]here is no constitutional
right to have civil proceedings stayed pending the outcome of
a criminal investigation.”30 but we nonetheless required trial
courts to balance the competing needs of the parties under their
inherent power to do justice.31 Consistent with that opinion,
we adopt the reasoning of these federal courts. We hold that
before a trial court dismisses an action because the plaintiff
has invoked the Fifth Amendment in response to discovery
requests, it must first (1) balance the parties’ interests and (2)
consider whether a less drastic remedy could accommodate
the plaintiff’s privilege against self-incrimination and maintain
fairness to the defendant.
Here, the only finding in the court’s order relevant to this
balancing was that the possible delay would prejudice the
defendants if behrens’ trial did not take place as scheduled. We
conclude that the court’s finding was insufficient to support the
court’s dismissal of the plaintiffs’ action as a matter of law.
In his responses to discovery requests, behrens stated that
he would respond to the requests after his criminal trial. And
when the court entered its order, behrens’ trial was scheduled
to begin in 40 days. This was not a case in which the criminal
indictment was uncertain or the speculative nature of the delay
was unreasonably long. Although judicial efficiency is desir-
able, delay may sometimes be required to reach a just result
under § 6-337(b)(2) of our discovery rules.32 Nor did the court
explain how a further delay of 40 days would prejudice the
defendants or consider the hardship imposed on behrens by
proceeding with the civil action before the criminal trial.
because the court’s findings were insufficient to support an
order of dismissal, we reverse the order and remand the cause
for further proceedings.
29 McMullen, supra note 13, 335 F.3d at 218, quoting Graystone Nash, Inc.,
supra note 21. Accord Wehling, supra note 13.
30 Schuessler, supra note 19, 243 Neb. at 428-29, 500 N.W.2d at 534.
31 See id. at 429, 500 N.W.2d at 534.
32 See, e.g., McMullen, supra note 13; Wehling, supra note 13.
996 	280 NebrASKA rePorTS

CoNCLUSIoN
We conclude that the court erred in applying a rule of auto-
matic dismissal when a plaintiff invokes his or her privilege
against self-incrimination during discovery. We determine that
in such circumstances, a trial court must balance the parties’
interests and consider whether a less drastic remedy would suf-
fice. Under this rule, the court’s findings were insufficient to
support an order of dismissal. We reverse the order and remand
the cause for further proceedings.
reverSed and remanded For
Further proceedingS.
Wright, J., not participating.
beHreNS v. bLUNK 	997
Cite as 280 Neb. 984