(Id.; Ex. 10 at
9.)
Following that decision,
discovery proceeded in this action. Respondent propounded and claimant
responded to interrogatories and requests for production. Claimant,
however, resisted discovery of the evidence suppressed by Judge Holmstrom.
On March 20, 1997, the State
Fund moved to compel production of the evidence. (Motion to Compel and
Request for Declaratory Ruling Regarding Release of Evidence.) Claimant
resisted the motion and on April 23, 1997, I denied the discovery request,
holding that Judge Holmstrom's Orders had made this action an ancillary
one to the criminal proceeding and that his suppression order must therefore
be honored.
On April 23, 1997, the State
Fund noticed the depositions of claimant and his wife. The notices triggered
a motion for a protective order by claimant. On May 1, 1997, claimant
filed Petitioner's Motion and Brief for Protective Order Wcc Rule 24.5.325,
requesting the Court to issue a protective order precluding the State
Fund from examining claimant or his wife concerning pending criminal
charges in Yellowstone County. The motion invoked claimant's and his
wife's Fifth Amendment Rights against self-incrimination. Claimant also
requested an order prohibiting the State Fund from examining his wife
with regard to spousal communications.
After reviewing the motion,
I held a telephone conference call with counsel. During that conference,
counsel for the State Fund indicated their intention to file a motion
for reconsideration of my ruling regarding the suppressed evidence.
They questioned whether any determination made by the Workers' Compensation
Court could ever be used in the criminal case, and thus questioned my
conclusion that this proceeding is ancillary to the criminal case. They
also indicated that they intended to argue that the suppressed evidence
would have been inevitably discovered and should therefore be admitted.
Nix v. Williams, 467 U.S. 431 (1994). State Fund counsel also
urged that claimant had waived his Fifth Amendment right by responding
to written discovery.
During the conference, I
concluded that my previous ruling and the Fifth Amendment issue required
further consideration and that the parties should be permitted to present
evidence pertaining to those issues. A hearing was scheduled on these
matters and further briefing was requested.
On May 27, 1997, State Fund
filed State Fund's Motion and Memorandum Regarding Discovery Issues.
In its motion, the State Fund requested the Court to reconsider its
Order of April 23, 1997, and to deny claimant's motion for protective
order. In its memorandum, the State Fund asserted that claimant waived
his Fifth Amendment privilege against self-incrimination, that the blanket
assertion of the privilege by claimant is improper, that if the privilege
has not been waived, the petition should be dismissed, that claimant's
broad reliance on the spousal privilege is misplaced, and that the evidence
suppressed in the criminal action should be available for use by the
State Fund in this case.
On June 6, 1997, claimant
responded. (Petitioner's Reply to State Fund's Motion and Memorandum
Regarding Discovery Issues. ) He conceded that he can be questioned
concerning his responses to the interrogatories. He acknowledged that
he had partially waived his Fifth Amendment privilege, but urged that
the waiver should apply only to the matters directly raised in his interrogatory
answers. He continued to assert that his Fifth Amendment rights apply
to issues which are outside the scope of the interrogatory answers.
The Court held a hearing
on June 11, 1997, in Helena, Montana. Claimant was present and represented
by Mr. R. Russell Plath. The State Fund was represented by Mr. Daniel
J. Whyte and Mr. Charles G. Adams. At the hearing I engaged counsel
in a frank discussion of the issues. I compliment counsel on their candid
and helpful responses to my questions and observations.
Counsel for claimant stated
that claimant and his wife were prepared to go forward with their depositions
and to answer questions within the scope of claimant's responses to
interrogatories. Those responses involve the claim for benefits,(1)
thus claimant has indicated his willingness to respond, as a general
matter, to questions relevant to his entitlement to benefits.
However, claimant's counsel
advised the Court that there is another pending criminal prosecution
charging claimant and his wife with possession of stolen vehicles. The
evidence against them apparently stems from the October 19, 1994 search.
That search led to the application and issuance of another search warrant.
Claimant has moved to suppress that evidence on the ground that the
original search violated his constitutional rights and that any information
resulting from that search should not have been used in obtaining the
second search warrant. The motion is presently pending before Judge
Diane Barz, who is presiding over the second criminal action.
Invoking his Fifth Amendment
Right, claimant objects to any inquiry concerning the alleged stolen
property. Counsel for the State Fund stated their desire to inquire
regarding the property as it might be relevant to the claimant's entitlement
to benefits. I commented that the inquiry might be relevant if claimant
paid for the items, and his benefits and wife's income were insufficient
to permit the purchases, but if that were the case, then the State of
Montana criminal case is seriously flawed.
During the hearing I told
counsel that it was my recollection that suppressed evidence may be
admitted for impeachment purposes should a defendant testify. Claimant's
counsel acknowledged that possibility and agreed that it is appropriate
to provide the State Fund with copies of the suppressed documents. After
the hearing I confirmed that there is case law supporting the admission
of illegally seized evidence for impeachment purposes. Walder v.
United States, 347 U.S. 62, 74 S.Ct. 354 (1954).
In light of the above, counsel
and the Court agreed that claimant shall request the CIB to provide
the State Fund with copies of all seized documents. The State Fund agreed
to shoulder the cost of copying.
Counsel mentioned that they
have attempted to contact Agent Tom Blankenship, who is the agent in
charge of the investigation, concerning the documents, but that Agent
Blankenship has not responded to their inquiries. In this regard, the
Court notes that the documents properly belong to claimant and that
they are subject to this Court's authority to order him to produce the
documents. While Judge Holmstrom declined to order the documents returned
to claimant, the claimant still has a right of access to the documents.
They are not criminal justice information any more than a previously
created document is subject to the attorney-client privilege merely
because the client delivers the document to the attorney. Clark
v. Norris, 226 Mont. 43, 734 P.2d 182 (1987) (stating that a privilege
cannot be created in a subject matter merely by transmitting it to an
attorney.) In light of the long delay in this case, and the claimant's
expressed desire to bring the case to trial as soon as possible, the
prompt cooperation of Agent Blankenship and the CIB is essential. If
that cooperation cannot be secured by counsel, the Court is prepared
to issue a subpoena duces tecum directing Agent Blankenship to personally
appear before the Court and bring with him all the documents.
Counsel agreed with the
Court's suggestion that the depositions be deferred until the State
Fund has an opportunity to review the requested documents. After such
review, the depositions shall proceed. If claimant or his wife invokes
the Fifth Amendment with regard to particular questions, or if claimant
objects to the use of a seized document, then counsel shall contact
the Court for a ruling. To aid the Court, I requested that prior to
commencing the depositions, counsel should provide point briefs setting
out pertinent law concerning specific issues which may arise during
the depositions. I also asked counsel to provide copies of any out-of-state,
federal, or United States Supreme Court cases they cite.
Insofar as my previous Order
regarding the use of suppressed evidence is inconsistent with the present
discussion, it is overruled. However, at the present time it is unnecessary
for me to reconsider my holding that this case is ancillary to the criminal
proceeding and therefore requires me to honor Judge Holmstrom's suppression
ruling. It is also unnecessary for me to consider the State's argument
concerning inevitable discovery. Use of the evidence for impeachment
purposes, if appropriate, may allow the admission of the evidence even
if it is otherwise inadmissible. My ruling is without prejudice to the
State Fund renewing its motion for reconsideration at a later time.
THEREFORE IT IS HEREBY ORDERED
AS FOLLOWS:
1. Claimant shall request
Mr. Tom Blankenship and the Montana Criminal Investigation to provide
the State Fund with copies of all of the documents seized in the October
19, 1994 search of claimant's home and property. The State Fund shall
pay the costs of such copying. If Mr. Blankenship and the CIB fail to
comply with the request, then counsel shall advise the Court and a subpoena
duces tecum shall issue to compel Mr. Blankenship to personally appear
before the Court and produce the documents.
2. After the State Fund
has an opportunity to view and copy the documents, the parties shall
proceed to take the depositions of claimant and his wife. Before the
taking of the depositions, the parties may supply the Court with point
briefs and copies of any out-of-state, federal, or United States Supreme
Court cases cited by the parties, regarding the possible assertion of
Fifth Amendment privilege and spousal privilege. If, during the depositions,
objections are raised based on the Fifth Amendment or to the relevancy
of documents proffered for impeachment purposes, the parties shall contact
the Court.
3. The Court reserves ruling
on the State Fund's request to reconsider the Order of April 23, 1997.
DATED in Helena, Montana,
this 13th day of June, 1997.
(SEAL)
\s\ Mike
McCarter
JUDGE
c: Mr. R. Russell Plath
Mr. Charles G. Adams
Mr. Daniel J. Whyte
1. INTERROGATORY
NO. 2: Please state your gross income for the years 1982 to date.
ANSWER: Workers' Compensation
benefits were received until November of 1994. I have had no income
since November of 1994.
INTERROGATORY NO. 3:
Please state if you have engaged in any form of self-employment, whether
for income, profit or hobby from 1982 to the present. If so, please
state the following for each form of self-employment:
a. the nature of such self-employment;
b. the precise amount of
income received for such self-employment;
c. whether such self-employment
is conducted as a sole proprietorship, partnership, family business,
or other form; and
d. the precise dates upon
which you have engaged in such self-employment.
ANSWER: a. Helped
a friend load and haul off some concrete.
b. Barter.
c. None.
d. Unknown.
. . .
INTERROGATORY NO. 7:
Please itemize by source and amount the current periodic income of yourself
or any member of your household.
ANSWER: I object
to producing information regarding monies or income generated by my
spouse or other household members as not being relevant to this case.
Workers' compensation benefits were paid to the Petitioner by the State
Compensation Insurance Fund until benefits were terminated in November
of 1994. The Montana Criminal Investigation Bureau has all of our personal
records which were seized pursuant to a search warrant and as part of
a criminal investigation in October of 1994.
REQUEST FOR PRODUCTION
NO. 1: Please produce Petitioner's federal and state tax returns,
whether filed jointly or separately, W-2's, and withholding statements
for the years 1982 through 1995.
RESPONSE: Records
will be produced as soon as they are made available.
INTERROGATORY NO. 8:
Please give a description and the value of each of the fixed assets
owned by you or your spouse, including the following:
