Oregon DOJ objects to federal subpoenas
State attorneys produced objections, but no documents, by the June 21 deadline for five federal grand jury subpoenas requesting state documents relating to La Mota and Shemia Fagan.
The State of Oregon objected to federal grand jury subpoenas issued to five state agencies seeking documents relating to cannabis firm La Mota, its owners and subsidiaries, and former Oregon Secretary of State Shemia Fagan, according to a June 21 letter from an attorney for the Oregon Department of Justice to the federal prosecutors seeking the documents, and obtained by Oregon Roundup via public records request.
Sheila Potter, the Oregon DOJ lawyer who signed the letter, wrote that the subpoenas are too broad, would “encompass millions of pages of documents,” and would present a significant staffing burden to state agencies trying to comply with them.
Potter asks the federal prosecutors to refine and narrow the scope of the subpoenas, and writes that she expects to issue “rolling production,” i.e., to produce documents as state agencies identify them and Oregon DOJ processes and redacts them. It appears no documents were produced with Potter’s letter, which was dated the same day responsive documents were due.
The rules of federal criminal procedure, which govern the subpoenas, generally require prosecutors to restrict their requests to matters that are relevant and the production of which is not overly burdensome on the target of the subpoena. In this case, the grand jury presumably is looking into potential criminal conduct on the part of Fagan and La Mota. Potter asks federal prosecutors to help her and state agencies refine the request to maximize the likelihood that the documents produced are helpful to the grand jury.
To put this in perspective, it’s not unusual for the target of a subpoena to object to it. And Potter explicitly says Oregon DOJ will comply with a set of more narrowly tailored subpoenas. For all I know, this has all been worked out since June 21 (I have requested additional communications from both Oregon DOJ and the U.S. Attorney’s office, with none received by “press” time).
It is noteworthy, though, that the written response, which follows phone conversations between the lawyers, does not come until the day the response to the subpoena was due. Depending on how aggressive the U.S. Attorney’s office wants to be, Oregon DOJ could be pushing things a bit.
I’m by no means a prosecutor or criminal defense attorney. I have, however, been involved in plenty of discovery disputes in civil cases. In those cases, the issuer of the discovery request usually expects the target of the request to use the time between service of the request and its deadline to sort through objections and then to produce any documents unaffected by the objection by the due date.
But then, I’ve never litigated against the State of Oregon, which is not exactly known for its alacrity or proficiency when performing large tasks involving the use of computers.
If the parties can’t agree on a method and timeline for production, one or both will file a motion with the court to resolve it.
When people, like former district attorney Josh Marquis, say that this federal investigation is going to take a long time, issues like this are a big part of why.
We’ll keep you updated on this nascent discovery dispute and other news involving the federal grand jury probing Oregon political corruption.
It may be common for the lawyers for the targets of a federal investigation to object to the scope of a grand jury subpoena, but in this case Oregon DOJ does NOT represent Fagan. They represent the state agencies, and ultimately the people of the state of Oregon.
So either they DO regard elected (or appointed) state officials as the targets, but it is disconcerting that their first reaction is to whine about the scope of the subpoena.
If this were their real concern, it could be easily resolved by Oregon DOJ lawyers less formally asking the feds to define or clarify the scope of subpoena.
Calling up digitized records 'would present a significant staffing burden'? Since when has any Oregon department or agency been short of staff? Not producing any subpoenaed documents further exacerbates the feeling that the people can not trust government. If there's nothing to hide why are they hiding it? Just like cast vote records, almost impossible to obtain in a timely manner and with many hurdles thrown in the way.