8 Trial Lawyer • Winter 2024 subpoena had been quashed, the Klamath County District Attorney’s Office surprisingly produced the IA Report to the plaintiff. The plaintiff immediately informed the city of receipt of the report in a formal status report. In response, the city filed a fiery motion to require destruction of the IA Report and to prohibit further use of the record, accusing the plaintiff’s counsel of “flagrant bad faith” and “callous disregard of responsibilities,” and asking the court to impose “a severe sanction.”7 With no evidence or supporting sworn declaration, the city alleged the plaintiff’s counsel had essentially tricked the Klamath County District Attorney’s Office into giving them the IA Report, despite the court’s order quashing any portion of the subpoena that requested it. The city asked the court not only to order the plaintiff’s counsel to destroy the record, but also to dismiss the case as a sanction for “fail[ing] to obey” the court’s order. But the court’s order had not instructed either party to notify Klamath County that the subpoena had been quashed. The plaintiff’s counsel consulted an ethics attorney and submitted a response to the city’s motion, supported by detailed declarations with dozens of exhibits, describing the timeline of events and how the IA Report had inadvertently ended up in their possession. Yet, during what I can only imagine was the most uncomfortable hearing of their lives, the plaintiff’s counsel were given little room to talk while the city and the court laid into them for intentionally violating the court’s order. When LeDuc Montgomery was afforded the opportunity to speak, she asked the court to review their response and declarations — which cited actual evidence — and compare it to the city’s unsupported assertions before reaching a final decision. After the hearing, Burrows wrote a letter to the court adding further color and background on the issue. The court immediately deemed this a motion for reconsideration and re-opened the issue. The truth prevailed In an eight-page opinion and order, the court not only denied the city’s motion to require destruction, but also reversed itself, “reconsider[ing] the discoverability of the IA Narrative Report.”8 The court began its opinion by recognizing: “Plaintiff’s counsel did not violate any court order or professional standard by inadvertently obtaining” the IA Report. The court then concluded that, contrary to its previous opinion and order, all ten factors under the Official Information Privilege weighed in favor of disclosure. What is more, the court also concluded the city had waived any privilege that existed over the report by providing copies of it to a third party. And though the court reserved ruling on admissibility at trial, it acknowledged that the IA Report would be the only way to impeach the investigating officer’s testimony with his own inconsistent statements. The city, having suffered a mighty blow in the third round on the issue, responded by filing a formal apology to the court and plaintiff’s counsel into the record. It also caught the attention of civil rights watchdogs National Police Accountability Project, ACLU of Oregon and Oregon Justice Resource Center, who recently filed a motion to intervene to unseal misconduct records in the case, represented by OTLA member Ashlee Albies. Dust off and try again There are many things we can learn from the “little motion to compel that could” in Malaer. First, consider whether any third parties may have the documents you’re after. Subpoena them before you litigate a motion to compel. Maybe you’ll get the documents without having to resort to motions practice. But even if you don’t, knowing beforehand whether the documents have been disclosed to third parties can increase your chances of success. And, if your subpoena is quashed, clarify who has the obligation to notify third parties. Second, ask questions during depositions that will help make your record about why the documents you’re seeking are crucial to your case. If you can, wait until after depositions and you’ve made your record to move to compel production. If, however, you need to litigate a motion to compel before depositions, include in your motion a request that the court allow leave to reconsider its ruling after you’ve had the opportunity to further develop the record through depositions. Third, if your case concerns a matter of public interest, engage with that aspect of the case early. Several public records statutes and balancing tests consider the public interest as a factor in the decision A Cowboy Approach Continued from p 7
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