Payne lied; Stinger attorney asserts

By Staff | October 13, 2015

Originally posted on The Western News >>, October 13, 2015

David Cotner, attorney for Stinger Welding in its ongoing litigation with the Lincoln County Port Authority, filed a brief Sept. 25 in support of Stinger’s motion to hold the City of Libby in contempt of court for the city’s failure to produce documents related to the city’s involvement in the Stinger project ordered under a March 2015 subpoena.

In the brief, Cotner alleged the Libby City Attorney, Allan Payne, who also represents the Lincoln County Port Authority and at one time made claims to represent Lincoln County in the matter as well, has improperly used his various roles in to delay the progress of the case. He also claimed Payne lied to opposing counsel and the court about the availability of documents requested by the subpoena.

“This court provided guidance when it dismissed Lincoln County Port Authority’s motions to quash on the exact same grounds that the city raised in its objections to the subpoena, represented by the same attorney as L.C.P.A.,” Cotner wrote in the brief. “Therefore, responses to the requests in the subpoena should have been forthcoming months ago. Instead, Stinger has received conflicting representations from Mr. Payne regarding whether documents exist and if so, whether they are privileged. What is undisputed is the city has failed to comply with the subpoena. Mr. Payne misuses his multiple hats in this litigation in an effort to circumvent and evade his and his clients’ legal obligations.”

Cotner issued the subpoena to the City of Libby in March 2015, requesting among other things, “all city records, including but not limited to minutes, correspondence, memos, contracts, letters and all other documents related to the Montana Community Development Block Grant No. MT0-CDBG-ED09-03 relating to the Stinger project.”

A subpoena was also served upon Lincoln County for similarly described documents in the county’s possession.

Payne, as attorney for the port authority, filed motions to quash both subpoenas. Both motions were rejected, but neither the city nor the county complied with the order to provide the requested documents. Cotner filed a motion for contempt and award of costs and fees against both the city and county June 19.

In response to the motion for contempt, Lincoln County Attorney Bernard Cassidy contacted Cotner and promised the county’s cooperation and compliance with the subpoena. Cassidy also filed a praecipe with the court July 30, in which he stated “there is no retainer agreement between Lincoln County and Mr. Payne.”

Payne has asserted that he represented Lincoln County in the Stinger matter at no charge, on the basis of a verbal agreement between himself and the previous county commissioners, none of whom remain in office. Former executive assistant to the commissioners, Bill Bischoff, submitted a statement from former commissioners Marianne Roose, Ron Downey and Tony Berget in which they supported Payne’s assertion, but no documentation of any such agreement was found by Lincoln County Clerk and Recorder Robin Benson when requested by The Western News.

“Because this was done in meetings without my presence, I can only tell you that an engagement letter has not been located in the clerk and recorder’s office,” Benson said.
Former clerk and recorder Tammy Lauer, who was in office at the time of the alleged verbal agreement, also said she was unaware of any documentation, but added Berget and Bischoff would often meet with Payne behind closed doors.

Following Cassidy’s promise to comply, Cotner amended his motion to exclude the county from the contempt charge but continued to press for a ruling against the city and Payne.

Payne filed the city’s official response last month, arguing the city had complied with the subpoena and the matter should be dropped.

“Even absent the procedural and substantive deficiencies of Stinger’s motion, such motion should be denied as moot, as the documents it sought were produced to Stinger before it filed the motion for contempt,” Payne wrote. “As described above, Stinger has been provided with all requested documents in the city’s possession and, moreover, in order to assuage Stinger’s concerns that other documents could exist, the city offered to allow Stinger’s counsel to inspect the city’s files. For unknown reasons, Stinger does not find this production and additional allowance sufficient.”

Cotner challenged Payne’s assertion that all responsive documents were produced and delivered.

“On Aug. 28, 2015, Mr. Payne wrote to Stinger’s counsel, stating, ‘the city has now conducted a review of its file and attached are the only responsive documents contained in its files not already in Stinger’s possession – City Council meeting minutes for March 16, 2009, March 20, 2009, May 3, 2009, and Sept. 14, 2009, generally available online.’ No privilege log was included. Mr. Payne suggested ‘under the supervision of the City Attorney’s office [which is Mr. Payne], come and review the city’s records yourself and be satisfied the city has no other responsive documents not already in Stinger’s possession.”

Several of the documents produced by Lincoln County in response to the subpoena should also have been in the city’s possession and should also have been responsive to the subpoena. Several letters in the county’s response were addressed not only to the Lincoln County Board of Commissioners, but also to Libby Mayor Doug Roll. By law, the mayor’s correspondence is required to be kept and maintained by the city clerk as a public record. In response to a request from The Western News, Libby City Clerk and Treasurer Glena Hook produced two separate letters addressed to both Mayor Roll and former commissioner John Konzen, both of which were on the subject of the specified Community Development Block Grant from Cotner’s subpoena.

Montana Code Annotated 25-20-VI-45 delineates the requirements and responsibilities of a subpoena. Parties responding to a subpoena are required to produce the documents unless a privilege exempts the documents from review. In cases where privilege exists, a log must be produced listing the documents and why the privilege exists. There is no exemption listed in Rule 45 for documents obtained from another source.

Cotner alleged in the Sept. 25 brief that Payne misrepresented the existence of responsive documents in the possession of the city in a number of ways.

“In sum,” Cotner wrote, “Mr. Payne’s conflicting representations include the following: Mr. Payne represented that responsive privileged documents exist without producing a privilege log, and subsequently represented that no privileged documents exist. Mr Payne represented that no responsive non-privileged documents exist, then subsequently produced a handful of public records that are responsive documents, which did not include responsive documents produced by the county. Mr. Payne represented that Stinger already had the responsive documents that exist, but also claims that there are no responsive documents that Stinger already has. Mr. Payne represented that he would attempt to obtain a formal statement from city officials that no responsive documents exist, but has never provided such statement.”

Cotner again asked the judge to hold the city in contempt of court and to award Stinger the costs and fees incurred as a result of the city’s failure to comply.

“Regardless, the city’s claim that Stinger’s unwillingness to withdraw this motion unreasonable and vexatiously multiplies proceedings ignores the simple facts set forth above – over six months ago, Stinger served a subpoena,” Cotner wrote. “In the last six months, Stinger has received conflicting answers regarding whether documents exist, and Stinger has had to force the issue despite clear guidance by the court rejecting Mr. Payne’s objections. The city’s production of a few city council minutes is facially insufficient, particularly where Mr. Payne has stated privileged documents exist, not produced a privilege log, then stated privileged documents do not exist, stated that Stinger has all responsive documents, then stated that there are no responsive documents that Stinger already has, and stated that he would obtain a formal statement from the city that no responsive documents exist, then never provided such a statement. Until Stinger can get a straight answer and responsive documents from the city, it’s amended motion remains warranted and necessary.”

Originally posted on The Western News >>