Wednesday, February 13, 2013

Judge halts subpoenas in Ribi suit

Orders that Jim Donoval cannot file further pleadings

Express Staff Writer

Fifth District Judge Jonathan Brody has ordered that Jim Donoval, husband of and attorney for former Sun Valley City Administrator Sharon Hammer, cannot file any more subpoenas in a defamation lawsuit filed in December 2011 by Councilman Nils Ribi against Donoval. The judge has also halted all pending subpoenas already filed by Donoval.

The order, filed by Brody on Jan. 29, states specifically that Donoval is prohibited from filing any more pleadings in that lawsuit “dealing with” the city of Sun Valley or which may require the city to “incur attorneys fees.” The order will remain in effect until Brody rules on a motion for summary judgement filed by Donoval on claims by Patricia Ribi, Nils Ribi’s wife, that Donoval caused her emotional distress. The order also states that the city is not prohibited from “seeking attorneys fees and costs” from Donoval regardless of the outcome of Brody’s ruling concerning Patricia Ribi’s claims.

On June 25, Brody entered summary judgement in Donoval’s favor concerning Nils Ribi’s original complaint. That complaint claims that Donoval defamed Nils Ribi in written statements to city officials in November 2011 contending that Nils Ribi suffered from mental instability. Brody ruled that Donoval’s statements were protected as pre-litigation communication. Donoval said Tuesday that Patricia Ribi filed her emotional distress complaint directly following the June ruling and Donoval subsequently filed a motion to have her complaint dismissed.

The city became involved in the lawsuit as a non-party in late August to shut down a subpoena issued by Donoval to lawyer Patricia Ball after the June ruling. Ball is an independent, Boise-based attorney who former Mayor Wayne Willich hired in November 2011 to conduct an investigation of the city’s internal affairs. Donoval’s subpoena demanded that Ball release a complete report on her investigation to Donoval.

On Dec. 11, Willich filed an affidavit that states Ball’s inquest into the city included an investigation of allegations by Hammer of several instances of misconduct toward her by Nils Ribi while Hammer was city administrator. In the affidavit, Willich states that portions of the Ball report have been made public, but not the section that addresses Hammer’s allegations against Nils Ribi.

On Oct. 17, Brody ruled to quash Donoval’s subpoena because Ball’s report was protected by attorney-client privilege between Ball and the city. However, on Sept. 28, Donoval had already issued two more subpoenas, one to the city and one to Ball, requesting, again, production of the so-called Ball report.

On Nov. 28, Kirtlan Naylor, an attorney representing the city, filed a motion to quash those subpoenas. According to a memorandum filed by Naylor in support of the motion, Donoval’s Sept. 28 subpoena to the city also included requests for the production of “any and all” emails or other written communications from June 2008 to Jan. 19, 2012, between Hammer and Ribi, Hammer and any city employee or official, and Ribi and any city employee or official.

Naylor said Tuesday that to comply with Donoval’s subpoena to the city, the city would have had to incur costs of about $15,000 to $20,000, including paying city staff members to review and redact the roughly 20,000 requested emails. Naylor said that, since the city is not directly involved in the lawsuit, the city’s insurance carrier would not pay for the city to comply with the subpoena. He said the costs would come directly out of the city’s pocket.

In the memorandum, Naylor states that the city would be willing to produce the requested emails and written communications if Donoval would be willing to pay for their production under a public records request as opposed to subpoenaing them at the city’s cost. Naylor also states that Donoval’s request for the Ball report was effectively identical to the originally quashed subpoena and the court should similarly shut it down.

In a Dec. 11 response to Sun Valley’s motion to quash the second set of subpoenas, Donoval claims the subpoenaed items may disclose evidence of Nils Ribi’s “potential mental or emotional illnesses.” In a separate Dec. 11 reply to Sun Valley’s motion to quash the subpoenas, Donoval claims that he issued the second set of subpoenas on the assumption that the court would require the production of “some, if not all, of the items sought” in the original subpoena. However, the court ended up denying the original subpoena outright.

Donoval also claims in the reply that the Ball report is not protected by attorney-client privilege. He states that Willich hired Ball before current Mayor Dewayne Briscoe took the reins in January and Willich has the “sole” authority to determine whether the work he hired Ball to perform falls under attorney-client privilege.

In Willich’s Dec. 11 affidavit, Willich states that he hired Ball merely to perform a “disciplinary investigation” and maintains he never retained Ball to perform any “legal work,” in which case the report would be protected under attorney-client privilege. Willich’s affidavit also claims that, after Willich left office in early January, the publicly released portions of the report were altered to include the phrase “This document is protected by attorney work product privilege,” which Willich maintains was not part of the original report.

In the reply, Donoval also states that Ball never mentioned attorney-client privilege in her retainer agreement with the city and that, if she had “really been retained in regards to litigation matters,” as an attorney she would have specifically stated so in her retainer agreement or some other correspondence with the city.

A hearing for the case is set for March 5, after which Brody is expected to enter summary judgement on Patricia Ribi’s emotional distress complaint. Donoval said Tuesday that if Brody rules in favor of Donoval, the case would be over and the subpoenas will be moot. However, if Brody rules in favor of Patricia Ribi, he will then have to decide whether to require the city and Ball to adhere to Donoval’s subpoenas, and the case will grind on.

For now, the city is pleased with Brody’s Jan. 29 order.

“The city is relieved that the judge’s order prohibits Mr. Donoval from filing additional pleadings in this case related to the city without first gaining court approval,” Naylor said Tuesday.

Brennan Rego:

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