Wicklund v. Page et al

Filing 63

ORDER granting 58 Motion to Compel; granting 59 Motion to Quash. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK S. WICKLUND,
Case No. 1:09-CV-671-EJL-CWD
Plaintiff,
ORDER
v.

JAMES F. PAGE, an individual, dba
ASCERTAIN POLYGRAPH
SERVICES, dba TREASURE VALLEY
POLYGRAPH, and IDAHO
DEPARTMENT OF CORRECTION,
Defendants.

Before the Court are two discovery motions. The first motion, filed by Defendant
James Page on June 3, 2011, seeks to compel Plaintiff to answer discovery requests. (Dkt.
58.) The second motion was filed on June 8, 2011, by Ada County Prosecutor Shelley
Armstrong, seeking to quash a subpoena served upon her by Plaintiff Mark Wicklund.
(Dkt. 59.) The Court entered an order shortening time for responses and replies, which
deadlines have expired. The parties have filed responsive briefing and the matters are
now ripe for the Court’s review. Having fully reviewed the record herein, the Court finds
that the facts and legal arguments are adequately presented in the briefs and record.

ORDER - 1

Accordingly, in the interest of avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, the
Motions will be decided on the record before this Court without oral argument. Dist.
Idaho L. Rule 7.1.
DISPOSITION
1. Defendant Page’s Motion to Compel
On June 3, 2011, Defendant Page filed a motion to compel Plaintiff to respond to
interrogatories and requests for production, which Page submitted to Plaintiff on March
21, 2011. Idaho R. Civ. P. 33(a)(2) requires the responding party to serve answers and
objections within 30 days after being served. Plaintiff neither responded to the discovery
requests, nor to the Motion to Compel.
This matter presents an unusual situation because the Court has not entered a
scheduling order pursuant to Dist. Idaho L. Rule 16.1. Rule 16.1 indicates that, upon the
Court’s determination, certain cases may be exempted from the requirements of the rule,
and may not necessitate a scheduling order. Because of the dispositive motions filed early
in this case seeking dismissal, summary judgment and disqualification of counsel, the
Court did not enter a case management order setting forth deadlines for discovery. Most
recently, the Court issued a Report and Recommendation on January 27, 2011, (Dkt. 43),
recommending that summary judgment be granted to Defendant Idaho Department of
Correction (“IDOC”), thereby dismissing IDOC from this lawsuit and obviating the need

ORDER - 2

for IDOC’s participation should the District Judge adopt the recommendations.
And on May 25, 2011, the Court issued a second Report and Recommendation that
recommended Defendant Page’s motion for summary judgment be denied, but also that
the District Judge impose deadlines for limited discovery, amending the pleadings, and
filing a second motion for summary judgment. The Honorable Edward J. Lodge has not
yet issued an order disposing of the two reports. Therefore, no deadlines are in place.
Nevertheless, the Rules of Civil Procedure are clear that, once asked,
interrogatories “must be answered” and requests for production of documents “must” be
responded to within 30 days. Fed. R. Civ. P. 33(b), 34(b)(2). Fed. R. Civ. P. 37 provides
that a party may move for an order compelling disclosure or discovery once the party has
conferred in good faith with the opposing party. Page included the requisite certification.
Considering Plaintiff failed to proffer any objection to the motion to compel, and
the Court cannot discern good cause for Plaintiff’s failure to respond in light of the
Court’s recommendation that limited discovery be permitted, the Court will grant Page’s
motion.
2. Armstrong’s Motion to Quash
Deputy Ada County Prosecuting Attorney Shelly Armstrong was served with a
subpoena on May 27, 2011, which requested deposition testimony and information from
the Ada County Prosecuting Attorney’s file related to the felony charge filed against
Wicklund on May 8, 2001. By way of background, the facts are set forth in the Court’s

ORDER - 3

Report and Recommendation, (Dkt. 56), and will not be repeated in detail here other than
setting forth the context of the instant motion.
Ms. Armstrong was the prosecuting attorney in the criminal case against
Wicklund. She was responsible also for prosecuting Wicklund for violation of the terms
of his probation, one of the underlying issues in this case. Wicklund’s complaint arises
out of a polygraph examination administered to him on January 11, 2008, by Defendant
Page after Wicklund’s probation officers learned of possible probation violations,
specifically Wicklund’s use of the internet. After the polygraph examination, probation
revocation proceedings were initiated against Wicklund. Wicklund asserts in his
Complaint that he did not understand the nature of his rights during the polygraph
examination, and the statements he made during the examination were therefore coerced
in violation of his Fifth Amendment privilege against self-incrimination.
Page requested summary judgment on the grounds that there was no disputed issue
of material fact that Wicklund waived his Fifth Amendment right against selfincrimination and that the polygraph examination therefore did not constitute coercive
police questioning in violation of Wicklund’s civil rights. The Court denied Page’s
motion, finding that the material facts surrounding Wicklund’s state of mind and his
capacity to waive his Fifth Amendment rights were disputed.
However, the Court recommended leave be allowed to amend the Complaint and
to file a second motion for summary judgement on the issue of causation. Neither party

ORDER - 4

had addressed a central element of Plaintiff’s prima facie case, either in the Complaint or
in the motion for summary judgment. Wicklund must establish that Page’s actions
“caused” the deprivation of Wicklund’s constitutional rights. The Court explained that
coercive police questioning, without more, does not violate the Fifth Amendment unless
the statements obtained through that questioning are subsequently “used” in a criminal
case. However, Wicklund had not alleged in his complaint how the purportedly
incriminating statements elicited during the polygraph examination were “used” during
any portion of the probation revocation proceedings.
Nor had the parties presented sufficient evidence in conjunction with Page’s
motion for summary judgment for the Court to determine, as a matter of law, whether the
allegedly incriminating statements were “used” during any portion of the probation
revocation proceedings. Wicklund suggested that the statements obtained might have
been used prior to the actual revocation hearing, but noted that there was a lack of
evidence in the record. The Court agreed that, based upon the record before it, there was
insufficient evidence to determine the extent, if any, Wicklund’s statements obtained
during the polygraph examination were used by the prosecution during any portion of the
probation violation and revocation proceedings.
Presumably, the Court’s ruling was the impetus for Wicklund to subpoena Ms.
Armstrong and her file. Ms. Armstrong objects, contending that to subpoena her would
violate principles of prosecutorial privilege, privacy, and attorney work product. In

ORDER - 5

addition, Ms. Armstrong contends that the information Wicklund seeks may be obtained
from public records. And finally, Ms. Armstrong submitted an affidavit that she “did not
use Mark Wicklund’s statements obtained during his polygraph examination during any
portion of his probation violation and revocation proceedings,”1 and that, when
Wicklund’s attorney attempted to introduce results of the polygraph at the revocation
hearing, “the State of Idaho objected and the state court refused to allow or consider the
same.” (Aff. of Armstrong ¶ 4, Dkt. 59-2.)
Despite Ms. Armstrong’s statements, Wicklund contends that Ms. Armstrong
“possesses other relevant information and intends to avail himself of the right to depose
Ms. Armstrong.” Wicklund does not specify what that information might be. Wicklund
further asserts that “no basis” exists for Ms. Armstrong’s objection or her assertion that a
deposition will require disclosure of privileged information.
The Court disagrees. In its Report and Recommendation, and in examining the
case law regarding the issue of causation in the context of a Fifth Amendment claim
involving alleged coerced statements, the Court determined such statements must form

1

There also is no indication on the record before the Court that Ms. Armstrong was
involved in Wicklund’s probation violation proceedings prior to filing the first Motion for
Probation Violation. It is not clear in the record when Ms. Armstrong filed the initial motion.
And, although Ms. Armstrong averred that the initial motion included an allegation about the
polygraph, the allegation was not included in the Amended Motion. (Aff. of Armstrong n.1 at 3,
Dkt. 59-2.) A copy of the initial Motion is not part of the record, either in Ms. Armstrong’s
affidavit, or in the record before the Court on Page’s motion for summary judgment. Therefore, it
is not clear what role, if any, the polygraph played in Wicklund’s probation violation
proceedings.
ORDER - 6

the basis for instituting a criminal case. For example, in Stoot v. City of Everett, 582 F.3d
910 (9th Cir. 2009), the coerced statements were “used” because the statements were set
forth in an affidavit filed in support of the information charging the defendant with a
crime; were elicited during testimony at a pretrial arraignment and bail hearing; and
elicited again during a pretrial evidentiary hearing. Similarly, in Crowe v. County of San
Diego, 608 F.3d 406 (9th Cir. 2010), the coerced statements were used during public pretrial proceedings and relied upon to determine whether the defendants would be
incarcerated prior to trial.
Neither Stoot nor Crowe stand for the proposition that the mere knowledge of
allegedly coerced statements by a prosecutor, without reliance upon them to form the
basis of criminal charges or filing further criminal proceedings, would satisfy the standard
of “use.” Therefore, it is difficult for the Court to discern what “relevant information”
might be learned by examining the prosecutor’s file or by deposing her.
According to Stoot and Crowe, the information Wicklund seeks should be readily
available and accessible via public records in Wicklund’s criminal case. Therefore, the
Court finds that the subpoena constitutes an undue burden pursuant to Fed. R. Civ. P.
45(c), as there are other less intrusive means for discovering the information.
As for Ms. Armstrong’s claims of privilege and other protections against
disclosure of her files and her knowledge of the case, the Court finds that Wicklund has
not satisfied his burden under Dunlap v. State, 106 P.3d 376, 392 (Idaho 2004). See Fed.

ORDER - 7

R. Evid. 501 (privilege is determined in accordance with state law). Dunlap held that it
was not error to deny the defendant the opportunity to depose the prosecuting attorney
absent evidence that “there was no other means to obtain the information other than
deposing opposing counsel; the information sought would be relevant and not privileged;
and the information was crucial to the preparation of the case.” Wicklund has not
established any of the above elements, considering there are other means of obtaining the
information from the public records; he has not shown how the information might be
relevant and not privileged other than asserting that he would respect the prosecutorial
privilege during the deposition; and finally, Wicklund has not established how the
information would be “crucial” to preparing his case in light of the holdings and factual
examples set forth in Stoot and Crowe.
Accordingly, the Motion to Quash will be granted.
CONCLUSION
In light of Ms. Armstrong’s affidavit, and in the absence of information obtainable
via public records to demonstrate that the allegedly coerced statements were “used” in the
sense that the statements formed the basis to support and initiate post-conviction
revocation charges against Wicklund, it appears Wicklund has an uphill battle. The
controlling case law is clear that coercive police questioning, standing alone, does not
constitute a violation of an individual’s Fifth Amendment privilege against selfincrimination. Nevertheless, absent a motion upon which the Court can consider the issue,

ORDER - 8

this matter will continue on its course.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Armstrong’s Motion to Quash Subpoena (Dkt. 59) is GRANTED.

2)

Defendant’s Motion to Compel (Dkt. 58) is GRANTED.
DATED: June 29, 2011

Honorable Candy W. Dale
Chief United States Magistrate Judge

ORDER - 9