November 22 2011
OP 11-0548
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 289
_________________
ANIMAL FOUNDATION OF GREAT FALLS,
ROBERT F. JAMES, and JEAN FAURE, and
SARA SEXE,
Petitioners,
OPINION
v.
and
ORDER
MONTANA EIGHTH JUDICIALDISTRICT
COURT, CASCADE COUNTY, THE
HONORABLE KATHERINE M. IRIGOIN,
Respondent.
_________________
¶1 This matter is before the Court on a petition for a writ of certiorari or in the alternative
for a writ of supervisory control.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 This arises out of a civil action, Overfield v. City of Great Falls, Cause No. DDV-09-
671, Montana Eighth Judicial District Court, Cascade County. Susan Overfield appeared
before the Great Falls City Commission to speak about perceived conflicts of interest
between City officials and the Animal Foundation of Great Falls. She sued the City after she
was removed from the Commission meeting and charged with assault and disturbing the
peace. None of the petitioners are parties to the Overfield action nor do they represent any
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parties to that action. Their involvement began in February, 2010, when Overfield served a
subpoena duces tecum and notice of deposition under M. R. Civ. P. 30(b)(6) on the Animal
Foundation as a non-party witness. Overfield sought records relating to the Animal
Foundation’s communications with City officials. The Foundation moved for a protective
order on the ground that the subpoena was overly broad, and that it requested records that
were not relevant and were private and proprietary. In March, 2010 Overfield noticed the
deposition of Robert F. James, who was a Trustee of the Foundation and its registered agent.
On March 25, 2010 James moved to quash that deposition. On October 11, 2010, after what
the District Court described as “several months of institutional delay and a change of
presiding judge,” the District Court granted the motion to quash the deposition subpoena.
¶3 On November 22, 2010, the District Court held a hearing on pending motions,
including hearing argument on whether to revise the October order quashing Overfield’s
subpoena to the Foundation. After further briefing and upon Overfield’s motion, on
February 5, 2011, the District Court prepared a revised order (filed on February 15) that
reversed the prior order to quash the James subpoena. The District Court also revived
Overfield’s subpoena duces tecum but limited its scope. James and the Foundation moved
that Overfield be required to pay their expenses incurred to respond to the subpoena, and
moved to further revise and limit the subpoena. The District Court denied both motions. On
March 8, 2011, Overfield again noticed a deposition of James, and on April 8, 2011, James
and the Foundation applied to this Court for a writ of supervisory control. They argued that
the discovery required by the revised subpoena was burdensome and that it required
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disclosure of private, proprietary and privileged information. At no time did James or the
Foundation support its claim of privilege as required by M. R. Civ. P. 45(e).
¶4 On April 15, 2011, James and the Foundation moved the District Court to stay or
continue his upcoming deposition, and the District Court denied the motion. On April 18,
2011, James appeared for his deposition with Foundation attorney Jean Faure. They
produced no documents and Faure claimed that the subpoena duces tecum, although a
product of the District Court’s order, was invalid. The next day Overfield moved the District
Court to find James in contempt for failing to comply with the subpoena. This Court denied
the application for a writ of supervisory control on April 19, 2011. On May 24, 2011,
Overfield again noticed the depositions of James and others that the Foundation designated
as its witnesses pursuant to M. R. Civ. P. 30(b)(6), and requested production of documents
responsive to the subpoena. On June 30, 2011, James and the other Foundation witnesses
appeared for their depositions. James claimed that they had located over 130,000 documents
responsive to Overfield’s subpoena, and produced 1295 pages of documents that were
redacted. On July 1, 2011, Overfield filed her second motion for contempt. On August 25,
2011, James and the Foundation produced the 1295 pages of documents, unredacted, for in
camera inspection by the District Court.
¶5 On July 1, 2011, the District Court granted partial summary judgment to Overfield
and against the City in the underlying case. The District Court found that the City of Great
Falls was liable to Overfield on claims in her complaint in Count 2 (battery); Count 3 (denial
of rights to participation, speech and assembly under the Montana Constitution); Count 4
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(interference with liberty rights under the Montana Constitution); and Count 5 (false
imprisonment). Only Count 1 (assault) and Count 6 (infliction of emotional distress) were
left to be decided.
¶6 On August 31, 2011, the District Court held a hearing to allow James, the Foundation
and its attorney Faure to show cause why they should not be held in contempt. James
admitted to participating in deciding what documents the Foundation would produce and
what redactions would be made. By orders issued on September 1 and 2, 2011, the District
Court ruled on Overfield’s motions for contempt. In response to Overfield’s first motion for
contempt, the District Court’s September 1 order found that the Foundation and Faure “knew
or should have known” that they were subject to and failed to comply with a subpoena duces
tecum, a subpoena and two notices of deposition and at the time of the James deposition they
could not “in good conscience” claim a lack of awareness of the orders or the subpoena.
Disobedience of a subpoena may be punished as a contempt. Sections 26-2-104, and 3-1-
501(1)(j), MCA. The District Court concluded that the Foundation was in contempt for
failing to appear at the April 18, 2011 deposition with the subpoenaed documents.
¶7 The District Court found that while attorney Faure was not in contempt, she was
responsible for unreasonably and vexatiously multiplying the proceedings and should be
required to personally satisfy the excess costs required by that conduct as provided in § 37-
61-421, MCA. The District Court specifically did not find James to be in contempt because
he appeared at the April deposition. The District Court advised James and the Foundation
that continued contemptuous conduct could result in jail time or a fine, and allowed the
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Foundation to purge the contempt by producing all the documents covered by the limited
subpoena duces tecum, without redaction, by September 5, 2011.
¶8 On September 2, 2011, the District Court issued a second order of contempt in
response to Overfield’s second motion for contempt, making many of the same findings that
were made in the September 1 order. The District Court found that James and the
Foundation had wrongfully redacted information from the documents produced to Overfield,
in violation of the subpoena duces tecum. The District Court concluded that the Foundation
was in contempt for failing to appear at the deposition with the documents covered by the
subpoena duces tecum. In addition, James was in contempt for causing the redaction of
documents ultimately produced to Overfield, and Faure was in contempt for advising her
clients to produce redacted documents without first seeking the protections provided in the
Rules of Civil Procedure. The District Court ordered the Foundation to purge itself of
contempt by producing all subpoenaed documents by September 9, 2011. The District Court
ordered the parties to appear before September 16 to verify that they had purged the
contempt, and advised: “Failure to purge will result in this Court ordering any remedy
available to it, including incarceration.”
¶9 In response, on September 9 Sara Sexe, an attorney appearing “pro se,” filed a motion
for protective order on behalf of the Foundation. The Sexe pleading reiterated that 1295
unredacted pages of documents had been delivered to the court for in camera inspection and
submitted a proposed protective order proffering that the Foundation would comply with the
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District Court’s order to produce the unredacted documents provided that all parties agreed
that only the attorneys could see the documents.
¶10 On September 12, 2011, the District Court denied the motion filed by Sexe, finding
that “counsel to the Animal Foundation deems court orders debatable after they issue. They
are not.” The Foundation may not “create its own conditions to purge contempt.” The
District Court found that Sexe’s motion violated M. R. Civ. P. 11 by raising issues already
addressed by prior orders and by failing to provide a reasonable argument based on
established law. The District Court found that Sexe’s motion was “frivolous and filed with
bad intent to impede the progress of this litigation on time.”
¶11 On September 15, 2011, the District Court held a hearing to determine whether James,
the Foundation and Faure had purged themselves of contempt by producing the unredacted
documents. They had not. The District Court ordered that the 1295 pages of documents be
produced the next day by 10:00 a.m., but allowed redactions only of the names of donors to
the Foundation who wished to remain anonymous. The District Court further ordered that
the remaining 130,000 or so pages of documents identified by the Foundation as responsive
to the modified subpoena duces tecum be placed on a computer hard drive and be delivered
by noon the next day.
¶12 On September 16, 2011, James, the Foundation and Faure delivered 291 pages of
documents containing redactions of the names of anonymous donors plus other redactions as
well. Their attorney at that time, James Goetz, filed two notices and sent a letter to the
District Court acknowledging that the court’s order had limited the redactions to the names
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of anonymous donors, but nevertheless announcing the Foundation’s intention to redact
additional information. In a separate communication on September 16, the Foundation
announced that its board of trustees had voted to not comply with the remainder of the
September 15 order. The Foundation advised the District Court that it did not intend to
disclose the 130,000 documents because it was unable to obtain “a suitable waiver from
those persons whose individual computers were searched.”
¶13 Late on September 16, 2011, the District Court issued a warrant for James’ arrest for
contempt of court, and denied his request to set bail. This Court issued a temporary stay of
the arrest warrant pending further review.
¶14 The City and Overfield settled the underlying case on October 7, 2011. On October
17, 2011, the District Court entered an order acknowledging the settlement as well as the
agreement by the City and Overfield that the case would not be dismissed in order to give
Overfield time to receive and evaluate the documents that she previously sought in discovery
from the Foundation. The District Court left the action open to allow Overfield to continue
discovery against the non-parties to determine whether she had any cause of action against
them.
¶15 Also on October 7, 2011, the District Court held a hearing and entered an order
awarding Overfield attorney fees of approximately $90,000 as against the Foundation,
James, and Faure, jointly and severally, based upon the contempt orders entered September 1
and 2, 2011. The Foundation, James, and Faure filed a motion requesting this Court to stay
the execution of the attorney fee award, which we did by Order of October 11, 2011. That
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Order also directed the parties to file status reports on the case, and to file briefs on the
attorney fee issue. Those reports and briefs have been filed.
STANDARD OF REVIEW
¶16 There is no appeal from a contempt order, and the exclusive method of review in civil
proceedings, apart from exceptions not applicable here, is by application for writ of certiorari
also known as a writ of review. Section 3-1-523, MCA; Jones v. 19th Jud. Dist. Ct., 2001
MT 276, ¶ 2, 307 Mont. 305, 37 P.3d 682; Schaefer v. Engeland, 2004 MT 199, ¶ 10, 322
Mont. 274, 95 P.3d 724. This Court reviews contempt orders to first determine whether the
court acted within its jurisdiction and second whether there is evidence to support the finding
of contempt. Kauffman v. 21st Jud. Dist. Ct., 1998 MT 239, ¶ 16, 291 Mont. 122, 966 P.2d
715; Jones, ¶ 16. This Court has a low tolerance for discovery abuses. Peterman v.
Herbalife Intl., Inc., 2010 MT 142, ¶ 17, 356 Mont. 542, 234 P.3d 898.
DISCUSSION
¶17 Petitioners contend that the District Court should have referred the contempt matters
to a different judge; that the contempt orders were not supported by substantial evidence; that
the order to produce the 130,000 documents was improper; that the arrest warrant should be
vacated; and that the sanctions imposed upon Sexe should be vacated.
¶18 Upon review of the materials submitted to the Court, we deem them sufficient to
undertake review without further transcripts or records. Section 27-25-202, MCA. Based
upon the record, it is clear that the District Court properly considered and decided the
contempt issues below without referral to another judge. When a contempt arises from
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violation of an order of the court issued after a hearing on the merits of the subject matter, §
3-1-518, MCA, allows the judge who issued the order to determine issues of contempt for
non-compliance. Drew v. 10th Jud. Dist. Ct., 2004 MT 154, ¶¶ 26, 33, 321 Mont. 520, 92
P.3d 1195. The contempt here was not committed against the District Judge herself, and
therefore the District Court was not required to call in another judge to decide the contempt
issues.
¶19 It is clear that there was substantial evidence before the District Court to support the
contempt orders. The District Court’s order specifically revived, but limited, Overfield’s
subpoena duces tecum. Despite the District Court’s order, which James characterized in
pleadings filed below as an order compelling discovery, James and the Foundation appeared
for the April 18, 2011 deposition without any documents, contending that the subpoena was
invalid. This was a clear violation of the District Court’s order of February 5, 2011, and was
sufficient ground for the September 1, 2011, order of contempt. Disobedience of a subpoena
or an order of the court may constitute contempt of court. Sections 3-1-501 and 26-2-104,
MCA; State ex rel. Anderson v. District Court, 188 Mont. 77, 80, 610 P.2d 1183 1185
(1980). James cannot characterize the District Court’s order as one compelling discovery
pursuant to the subpoena and then argue that the subpoena was invalid.
¶20 As to the second order of contempt, James and the Foundation produced only 1295
pages of documents at the June 30, 2011 deposition and redacted those without any cogent
legal reason for doing so and without filing a statement of its specific objections to specific
documents as required by M. R. Civ. P. 45. (Even in its recent pleadings filed with this
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Court, the Foundation only vaguely contends that the subpoenaed documents contained
information that is “probably highly personal and confidential.” (Emphasis supplied.) This
is a smokescreen, not a legal argument.) On September 2, 2011, the District Court found the
Foundation, James and Faure in contempt for their respective roles in redacting the
documents. The District Court’s second order of contempt was therefore supported by
substantial evidence.
¶21 The Petitioners generally request that all contempt orders and sanctions citations
against them be reversed by this Court. Having reviewed the materials submitted by the
parties and the District Court’s orders, it is clear that the District Court was confronted with
the increasingly obstructive conduct of non-party witnesses who had determined to resist any
attempts by Overfield to obtain discovery from them. They subsequently resisted and then
openly defied the clear orders of the Court. The breadth and depth of the decisions by the
Foundation to defy the clear and direct orders of the District Court were without legal or
record-supported factual basis.
¶22 At the same time, this Court is left with the abiding conviction that the District Court
should not have ordered James’ arrest, particularly without admitting him to bail. James was
not the designated attorney of record for the Foundation, but a member of its board of
trustees. While the Foundation designated him as one of its representatives pursuant to M.
R. Civ. P. 30(b)(6), it appears that the major obstructive decisions were made by the
Foundation’s board. While James clearly had a hand in the Foundation’s conduct, it also
appears that the board, of which he was one member, ultimately made significant decisions
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on the discovery issues, such as the decision to not comply with the District Court’s
September 15 order. The District Court should have considered other sanctions.
¶23 We further conclude that Sara Sexe should not have been sanctioned for filing the
September 9, 2011 motion for a protective order. We review de novo a district court’s
determination that a pleading, motion or other paper violates Rule 11. Byrum v. Andren,
2007 MT 107, ¶ 19, 337 Mont. 167, 159 P.3d 1062. The tone of the motion was respectful to
the District Court and attempted to explain the reasons why the Foundation felt that
additional redactions to the produced information were warranted. Upon review, this Court
cannot conclude that the motion was frivolous and filed with bad intent to impede the
progress of the litigation. Muri v. Frank, 2003 MT 316, ¶ 22, 318 Mont. 269, 80 P.3d 77.
While the District Court acted within its discretion to deny the motion for a protective order,
we determine that Rule 11 sanctions against Sexe were not warranted.
¶24 Therefore, we conclude that there was not sufficient evidence to support the
September 16, 2011 order to arrest Robert James, and the District Court’s order in that
regard should be vacated. We also conclude that the September 12, 2011 imposition of Rule
11 sanctions against Sara Sexe should be vacated. Finally we conclude that the September 1,
2011 and September 2, 2011 contempt orders of the District Court should be affirmed.
¶25 Therefore, for the reasons stated above, the Writ of Certiorari is granted.
¶26 The Foundation, James and Faure additionally request relief from the District Court’s
October 7, 2011 order awarding costs and attorney fees to Overfield. While the express
basis for the District Court’s fee award was the September 1 and 2, 2011 contempt orders,
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the fee award is inconsistent with those prior orders in material ways. First, the fees should
not have been awarded in a lump sum, jointly and severally against the Foundation, Faure
and James. The September 1 contempt order was based upon the April 18, 2011 deposition,
in regard to which the District Court found only the Foundation in contempt and found it
liable for costs and fees Overfield incurred in bringing the first motion for contempt and for
deposing the Foundation. The District Court found Faure not in contempt but rather
responsible under § 37-61-421, MCA, for conduct causing excess costs, expenses and
attorney fees by advising the Foundation not to appear at the April 18 deposition. The
September 2 contempt order was based upon the June 30, 2011 deposition. The District
Court found the Foundation, James and Faure each in contempt in connection with that event
and held that Overfield could recover from them the costs and fees incurred in bringing that
second motion for contempt and for deposing the Foundation.
¶27 The District Court therefore previously awarded costs and fees to Overfield against
each of the named respondents based upon specifically-identified conduct as set out in the
September 1 and 2 orders. The ultimate award of costs and attorney fees should reflect not
joint and several liability, but liability based upon the specific events and the specific
conduct of each respondent as set out in the September 1 and 2 orders.
¶28 Further, the District Court’s award of costs and fees on October 7, 2011, exceeded the
scope of the September 1 and 2 orders by awarding fees for all work Overfield’s attorneys
did in connection with seeking discovery from the Foundation. The District Court’s
September 1 and 2 orders awarded fees for bringing the motions for contempt and for the
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Foundation deposition. There is no basis for awarding costs and fees for work prior to April
19, 2011, the day after the attempted April 18 deposition. The District Court’s fee order
awards Overfield fees for work her attorneys did, for example, in opposing the Foundation’s
motion to quash the original subpoena, upon which the Foundation prevailed. This was an
abuse of discretion and the award of costs and fees should be limited to those reasonably
incurred on or after April 19, 2011, for attorney time strictly related to the prosecution of the
contempt issues.
¶29 The District Court’s order of October 7, 2011, awarding attorney fees is vacated and
remanded for further proceedings consistent with the September 1 and 2, 2011 orders and
with this Opinion and Order.
¶30 Additionally, we assume supervisory control over the underlying case of Overfield v.
City of Great Falls, No. DDV-09-671, Montana Eighth Judicial District Court, Cascade
County, which has been fully and finally settled on its merits. The District Court’s order of
October 17, 2011, holding the case open so that Overfield can continue to pursue discovery
to determine whether she might have a cause of action against the Foundation or other
persons or entities is vacated. The obligation of any party, person or entity to provide other,
further or additional discovery to Overfield in connection with that action is vacated. The
District Court did not cite any authority for the unusual disposition provided for in the
October 17, 2011 order, and none is apparent. To the extent that this was a matter of judicial
discretion, we find it to be an abuse of discretion.
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¶31 Except for the determination of attorney fees as provided above based on the
September 1 and 2 orders, this Court intends that all matters and proceedings arising from or
connected to the underlying action are concluded. Following the determination of attorney
fees and costs as discussed above, the District Court shall enter an order dismissing the
underlying action, with prejudice, as fully and finally settled on its merits.
¶32 The Clerk of this Court is directed to provide a copy of this Opinion and Order to all
counsel of record and to the Honorable Katherine M. Irigoin, District Court Judge.
DATED this 22nd day of November, 2011.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS
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