Federal Class Action Discovery Dispute Update

The latest development in the federal class-action suit Oglala Sioux Tribe v. Van Hunnik, which I previously wrote about here, is a dispute over discovery.  Here is a very brief summary of that dispute.

The Federal Court has essentially said that transcripts of every third 48 hour hearing in ICWA case should be produced.  South Dakota law provides that such hearings are closed and the files sealed, so the court reporters that transcribed the hearings in question cannot provide transcripts of those hearings without a court order directing them to do so.  The abuse and neglect docket in Pennington County typically rotates every year, so a number of different judges have presided over the hearings in question and are assigned to the cases in question.  Judge Davis, a named party in the federal suit, has signed the orders necessary for the court reporters to provide transcripts in the cases that are assigned to him, and which were assigned to Judge Thorstenson, who is no longer a state court judge.  But, Judge Davis contends that he lacks the authority to sign the orders needed to produce the transcripts in cases that are assigned to other state court judges.  The argument is that those judges are the ones with the authority to sign such an order in their cases, and if they refuse to do so, he has no authority to override their decision.  The other judges, who are not parties to the federal suit, have asserted that the orders presented to them to allow the transcripts to be produced require them to make factual findings, and that the Federal Court has no authority to compel a state court to make any particular factual findings.

Intuition and common sense tell me that a state law regarding the confidentiality of information cannot be an impenetrable barrier to discovery in a federal court action alleging misconduct by state actors.  The transcripts will be produced eventually, the only real question in my mind is the legal means of getting there.  My personal guess is that the Federal Court will eventually compel the production of the transcripts through orders directed at the court reporters themselves, although I could be wrong.

I have been updating my previous post with additional relevant filings in this case so that they are all in one place.  Linked below are just the documents most relevant to this discovery dispute.