United States District Court, D. Utah
IN RE JOINTLY MANAGED R.S. 2477 ROAD CASES LITIGATION, [*] Plaintiffs,
UNITED STATES OF AMERICA et al., Defendants, and SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Intervenor-Defendants.
MEMORANDUM DECISION & ORDER
Waddoups United States District Judge
the court are competing discovery motions from Plaintiff
State of Utah and Intervenor-Defendant Southern Utah
Wilderness Alliance (SUWA). (State's Motion to Quash, ECF
No. 368; SUWA's Motion to Strike, ECF No.
377.) The motions seek resolution of the
question of whether Automated Geographic Reference Center
(AGRC) must respond to a subpoena SUWA served on it in late
January. After SUWA served the subpoena and the parties made
some effort to resolve the dispute independent of the court,
the State objected by filing a Motion to Quash, which motion
SUWA has moved to strike. Neither Plaintiff Kane County nor
Defendant United States of America has participated in this
there is some question as to the timeliness of the
State's motion to quash, the court DENIES SUWA's
motion to strike because the motion to quash was no more than
one day late and because the motion to quash presents issues
that may recur. Resolution of these issues, may benefit
the parties as they proceed through discovery on a relatively
tight timeframe in this particularly complex case.
State seeks to quash SUWA's subpoena on the grounds that
the subpoena exceeds the scope of SUWA's participation as
a permissive intervenor and that many of the requested
documents are privileged. The court disagrees with the
State's reasoning but nevertheless concludes the subpoena
should be stricken in its current form.
intervention order that governs SUWA's involvement in
this case states: “The parties shall produce a copy of
all discovery to SUWA. SUWA may, to the extent not
duplicative of discovery by other parties, issue reasonable
subpoenas to third parties to obtain documents of interest to
the respective Road Cases.” (Second Amended Permissive
Intervention Order, ECF No. 184.) The State now argues that
the instant subpoena exceeds SUWA's authority under this
language because it was served upon AGRC, which the State
contends is a party to this litigation as an executive state
agency. SUWA argues that AGRC is independent of the State
Attorney General and is therefore not a party to this
litigation. The court agrees with SUWA.
the court notes there is limited authority on this issue, as
noted forty years ago by the United States District Court for
the District of Columbia when confronted with a similar
question involving agencies within the executive branch of
the United States. U.S. v. Amer. Tel. & Tel.
Co., 461 F.Supp. 1314, 1333 (D. D.C. 1978). And the
State has pointed the court to no authority to support its
position that AGRC's contractual relationship with PLPCO,
an executive agency that is working in conjunction with but
not under the control of the Attorney General in this
litigation, makes AGRC a party to this litigation.
that have dealt with these issues in the state agency context
have resisted treating various state agencies as parties when
there is a “duality of the State's executive
branches” such that the states' attorneys general
cannot “force the separate state entities to produce
documents.” United States v. Am. Express Co.,
No. 10-cv-4496 (NGG) (RER), 2011 WL 13073683 (E.D. N.Y. July
29, 2011) (citing Colorado et al. v. Warner Chilcott
Holdings Co. III, Ltd., No. 05-cv-2182, (Slip Op.
(D.D.C. May 8, 2007)). In such instances, courts should
presume “separate governmental agencies under state law
will not be aggregated together, without the showing of much
more.” New York ex rel. Boardman v. Nat'l R.R.
Passenger Corp., 233 F.RD. 259, 264 (N.D. N.Y. 2006).
Utah, the executive branch “consist[s] of Governor,
Lieutenant Governor, State Auditor, State Treasurer, and
Attorney General.” Utah Constitution, Article VII,
section 1. Each officer is an “elective constitutional
officer.” Id. They hold separate duties,
though the Governor may direct the Attorney General to take
certain actions. Specifically, the Utah Constitution vests
the executive power of the state in the Governor while the
Attorney General is “the legal adviser of the State
officers . . . and shall perform such duties as provided by
law.” Id., Article VII, sections 5(1) and 16.
The Utah Legislature has therefore empowered the Governor to
“direct the attorney general to appear on behalf of the
state” “[w]henever any suit or legal proceeding
is pending . . . which may affect the title of this state to
any property.” Utah Code Ann. § 67-1-1. In this
way the Governor may direct the Attorney General, but the
Attorney General has no such reciprocal power to control the
Governor or agencies organized under his authority.
served its subpoena on AGRC, which is a division within the
Utah Department of Technology Services (DTS). (Affidavit of
Stephanie Weteling, ECF No. 368-2.) DTS is an agency
organized under the authority of the Governor. (Motion to
Quash 6, ECF No. 368; Utah Organizational Chart, SUWA's
Response to Quash 4, ECF No. 380.) PLPCO is similarly under
the Governor's authority. (Motion to Quash 6, ECF No.
368.) And while the State represents that PLPCO is an active
part of the development of this litigation, it states no
basis for concluding PLPCO is subordinate to the Attorney
General such that the Attorney General could require its
compliance in discovery. Therefore, based on the unique
circumstances of this case, the court concludes that the
State has not demonstrated that AGRC is a party to this
litigation and therefore concludes that SUWA can subpoena
AGRC as a third party.
while it may be possible that some of the documents subject
to the subpoena are privileged, privilege is not properly
invoked at this time. The court notes, for the benefit of the
parties as they proceed, that any such objections would be
reviewed in light of SUWA v. Automate Geographic
Reference Center, 200 P.3d 643 (Utah 2008).
the court determines that SUWA's subpoena exceeds the
scope of the intervention order because the subpoena is not
reasonable. The subpoena seeks all documents related to R.S.
2477 rights-of-way in Kane and Garfield counties for five
categories of information. At this time the parties'
discovery is limited to ongoing preservation depositions in
the various counties and discovery in preparation for the
bellwether trial of fifteen roads in Kane County. SUWA's
request is unrelated to the preservation process and is
overly broad for the bellwether process. Therefore, the court
GRANTS the motion to quash the subpoena but acknowledges ...