Spreadbury v. Bitterroot Public Library et al

Filing 234

Brief/Memorandum in Support re 233 MOTION to Amend/Correct 189 Order on Motion to Quash, Order on Motion for Miscellaneous Relief, Order on Motion for Order/Judgment,,, DEFENDANT LEE ENTERPRISES INC'S MOTION TO AMEND ORDER [DKT 189] DEFENDANT LEE ENTERPRISES INC'S BRIEF IN SUPPORT OF MOTION TO AMEND ORDER [DKT 189] filed by Lee Enterprises Incorporated. (Smith, Jeffrey)

Anita Harper Poe
Jeffrey B. Smith
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street. P. O. Box 7909
Missoula, MT 59807-7909
Telephone (a06) 523-2500
Telefax [phone]
[e-mail]
j bsmith@garlington. com
Attorneys for Defendant, Lee Enterprises, Inc.

IN TFM LINITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
MICFIAEL E. SPRE,ADBURY.

Cause No.

CV-l I-064-M-DWM

Plaintiff.
V.

BITTERROOT PUBLIC LIBRARY.
CITY OF HAMILTON, LEE
ENTERPRISES, fNC., and BOONE
KARLBERG P.C..

DEFENDANT LEE ENTERPRISES,
INC.'S BRIEF IN SUPPORT OF
MOTION TO AMEND ORDER
(DKT. l8e)

Defendants.

Defendant, Lee Enterprises, Inc. ("Lee Enterprises"), through its counsel,

Garlington, Lohn & Robinson, PLLP, respectfully submits this Brief in Support of
its Motion to Amend Order (Dkt. 189).

I.

BACKGROUND

In his Second Amended Complaint, Plaintiff, Michael Spreadbury

n26t92

("Spreadbuty"), seeks the same compensatory damages from Lee Enterprises and
all the other Defendants. Specifically, Spreadbury alleges the conduct of the
Defendants has resulted in his loss of employment and earnings capacity, damaged

reputation, impaired lifestyle, and emotional distress and mental pain and

suffering. In order to evaluate Spreadbury's damages claims, the City Defendants
subpoenaed documents from third parties directly relevant to Spreadbury's

employment history, earnings capacity and mental health.
Some of the non-parties served with subpoenas refused to respond without

Spreadbury's consent or a Court Order. Spreadbury would not consent and filed a

Motion to Quash and Motion to Suppress, arguing the information sought was
privileged and protected by federal law. The Order at issue (Dkt. 189) resulted
from this dispute.
The Magistrate denied Spreadbury's motions, finding that, by raising his
damages claims and putting these matters at issue, Spreadbury had waived the

privilege for matters relevant those claims, and the law cited by Spreadbury did not
preclude the Defendants from obtaining and using the subpoenaed information in

this litigation. Dkt. 189. In addition, reading Spreadbury's Motion to Suppress
broadly, the Magistrate made the confidential information subject to a Protective
Order under Federal Rule of Civil Procedure 26(c). The Order provides that

"(l)

the City Defendants shall not disclose outside the bounds of their litigation any

of

Spreadbury's personal information obtained via the disputed subpoenas; and (2)
the City Defendants shall move the Court to file under seal any document
containing any of Spreadbury's personal information obtained via the disputed
subpoenas." Dkt. 189 at 9-10.

il.

DISCUSSION

Lee Enterprises understands that, as a Co-Defendant in the same lawsuit,

it

may access and use the confidential information subject to the Protective Order,

as

such access remains within the bounds of the litigation and, thus, is not prohibited

by the Order. However, given the Plaintiff

s

pro se status, and to avoid

misunderstandings and wasteful duplication, Lee Enterprises, with the agreement

of the City Defendants, requests the Court expressly clariff that the information
obtained by the City Defendants via subpoena is available for use in this litigation

by all Defendants, including Lee Enterprises.
The rules of procedure require production of the fruits of discovery to the
parties to the litigation. Fed. R. Civ. P. 26(a). Lee Enterprises is such a party.

Requiring co-defendants to independently obtain the same information would be
contrary to the aims set out in the first and fundamental rule of the Federal Rules

of

Civil Procedure: "These rules . . . should be construed and administered to secure
the just, speedy and inexpensive determination of every action and proceeding."

Fed. R. Civ. P.

n26192

I;

See Williams v. Johnson & Johnson,50 F.R.D. 31,32 (S.D.N.Y.

1970) (allowing parties in a separate lawsuit to access fruits of discovery, holding

"there is no merit to the all-encompassing contention that the fruits of discovery in
one case are to be used in that case only").

The information obtained by the City Defendants' subpoenas is equally
relevant and necessary to Lee Enterprises' defenses. Spreadbury's damages claims
against Lee Enterprises are the same as those brought against the City Defendants,
and the rationale for allowing access to documents relevant to the defense of those

claims is identical as

well.

The Magistrate's holding that Spreadbury waived any

privilege in these documents by making claims that put such information at issue is
the law of the case. Under the law of the case doctrine, a court is generally
precluded from reconsidering an issue previously decided by the same court in the

identical case.

U.,S. v.

Lummi Indian Tribe, 235

F

.3d 443, 452 (9th Cir. 2000).

Amending the Protective Order will promote judicial economy by preventing
reconsideration of issues already decided, avoiding unnecessary duplication

of

effort, preventing undue delay and expense for all parties, preventing the additional
cost and inconvenience to third parties which would occur

if Lee Enterprises was

required to issue separate subpoenas for the same records from the same nonparties, and preventing duplicative objections and briefing on the same issues.

fi26192

ilI.

CONCLUSION

For the reasons stated herein, Lee Enterprises requests the Court issue an
Amended Order identical to Dkt. 189, except with the addition of language

clariffing that access to the information by Lee Enterprises is "within the bounds"
of the litigation and that Lee Enterprises is also subject to the Protective Order
granted to the City Defendants. In the alternative, Lee Enterprises requests a
separate Order expressly permitting Lee Enterprises to access and use the fruits

of

all discovery, including the subpoenas, in its own defense in this litigation, subject
to the same conditions as apply to the City Defendants.

DATED this 22nd day of February, 2012.

lsl

Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

n26192

CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.I(dX2XE), I

certiff that this Defendant Lee Enterprises,

Inc.'s Brief In Support of Motion to Amend Order [Dh. l89J is printed with
proportionately spaced Times New Roman text typeface of 14 points; is doublespaced; and the word count, calculated by Microsoft Office Word 2007, is 824

words long, excluding Caption, Certificate of Service and Certificate

of

Compliance.

lsl

Jeffrey B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

CERTIFICATE OF SERVICE
I hereby certiff that on February 22,2012, a copy of the foregoing document
was served on the following persons by the following means:

2

CIWECF
Hand Deliverv

I

Mail
Overnight Delivery Service
Fax

E-Mail

1.

Michael E. Spreadbury
P.O. Box 416
Hamilton, MT 59840
Pro Se Plaintiff

2.

William L. Crowley
Natasha Prinzing Jones
Thomas J. Leonard
bcrowl ey @boonekarlberg. com
npj ones@boonekarlberg. com
tleonard@boonekarlberg. com
Attorneys for Defendants Bitterroot Public Library, City of Hamilton, and
Boone Karlbere P.C.

lsl

Jeffrev B. Smith
Attorneys for Defendant, Lee Enterprises, Inc.

n26t92