Leonard et al v. Doyle et al

Filing 23

ORDER granting 20 Motion to Compel Signed by Jeremiah C. Lynch on 12/20/2012. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
TERRY LEONARD, STEVEN
KENDLEY, MICHAEL GEHL,
BEN WOODS, and LEVI READ,

CV 12-25-M-DLC-JCL

Plaintiffs,
ORDER
vs.
ALAN JAY DOYLE, MICHAEL
SARGEANT, DAN DURYEE, and
DAN YONKIN,
Defendants.
_____________________________________________
Plaintiffs Terry Leonard, Steven Kendley, Michael Gehl, Ben Woods, and
Levi Read filed a motion to compel Frank Bowen, a Game Warden employed by
the State of Montana, to comply with a Fed. R. Civ. P. 45 subpoena they had
issued to him on October 2, 2012. The subpoena, together with a notice of
deposition issued by Plaintiffs’ counsel, directed Mr. Bowen to appear for his
deposition, and to bring certain documents identified in the subpoena with him to
the deposition.
Prior to his deposition, Mr. Bowen provided the requested documents to
John Lynch, Agency Legal Counsel for the Montana Fish, Wildlife & Parks. Mr.
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Lynch instructed Mr. Bowen not disclose the documents at his deposition, and
instead to leave the documents with the Fish, Wildlife & Parks office. By letter
dated October 9, 2012, Mr. Lynch then proposed to Plaintiffs’ counsel that the
documents be delivered to the Court for its in camera inspection to determine
whether the documents could be released. The documents have not been
submitted to the Court. They were, instead, apparently brought to Mr. Bowen’s
deposition, but they were held under seal and were not released to Plaintiffs’
counsel, as instructed by Mr. Lynch. Therefore, by Order entered December 12,
2012, the Court directed John Lynch to file a response to Plaintiffs’ motion to
compel on behalf of Mr. Bowen.
In his response brief, Mr. Lynch asserts the documents that are the subject
of the referenced subpoena are “privileged” because they are protected from
disclosure by the Montana Criminal Justice Information Act, Mont. Code Ann. §
44-5-101 et seq. Mr. Lynch explains that in lieu of releasing the documents to
Plaintiffs’ counsel at Mr. Bowen’s deposition, he instead produced a “privilege
log” describing the documents. He does not, however, identify any legal authority
under the Montana Criminal Justice Information Act that characterizes the
documents he withheld as protected by a “privilege.” In essence, Mr. Lynch
appears to be suggesting the documents should be subject to a protective order.
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The Montana Criminal Justice Information Act protects from disclosure and
dissemination certain confidential or private information. Mont. Code Ann. § 445-301 et seq. Although the information is statutorily protected from disclosure, it
does not qualify as information that is protected by a “privilege.”
Instead, the Montana Criminal Justice Information Act permits
“dissemination of confidential criminal justice information [...] to those authorized
by law to receive it[.]” Mont. Code Ann. § 44-5-303(1). A person is “authorized
by law” to receive confidential criminal justice information when the person has
obtained a subpoena requiring disclosure of the information. Mont. Atty. Gen.
Op. No. 119, 42 Mont. Op. Atty. Gen. 454, 1988 WL 482141, *9 (Oct. 31, 1988).
Because Plaintiffs obtained a subpoena, they are “authorized by law” to
receive the information that Mr. Lynch asserts is subject to the Montana Criminal
Justice Information Act. Therefore, IT IS HEREBY ORDERED that Plaintiffs’
Motion to Compel is GRANTED. On or before January 2, 2013, Mr. Bowen
and/or the Montana Fish, Wildlife & Parks shall produce the subject documents to
Plaintiffs’ counsel for review. On or before that date, however, Mr. Bowen or the
Montana Fish, Wildlife & Parks may move for a protective order regarding further
dissemination of the subject criminal justice information beyond its disclosure to
the named Plaintiffs’ and their counsel if the parties cannot reach an agreement as
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to a stipulated protective order.
The Clerk of Court shall serve a copy of this Order on the parties, and on
John Lynch, Agency Legal Counsel, Montana Fish, Wildlife & Parks, P.O. Box
200701, Helena, Montana 59620-0701.
DATED this 20th day of December, 2012.

Jeremiah C. Lynch
United States Magistrate Judge

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