Objections can be made based on reasonable timing concerns pursuant to 12 OS Sections 3226 and 3237, with due regard to the timing provisions of the Criminal Discovery Code (should not allow civil discovery to overtake criminal discovery),, as well as the work product privilege to which Jon refers. An example objection letter I once sent stated, " I have received a copy of a subpoena dated ... in the above-referenced case, directed to the Oklahoma City Police Department, Records Custodian. The City will withhold production in accordance with 12 Okla. Stat. § 2004.1(C)(2)(b), pending a determination of the Court on defendant’s motion for stay of discovery. In addition, until criminal charges are either filed or declined, it would be contrary to the public interest for incriminating evidence to be disclosed to the parties to a civil case when that would permit the putative defendant to conduct criminal discovery in a civil case in a manner contrary to the Oklahoma Criminal Discovery Code. Law enforcement records and investigative files may influence the testimony of other witnesses, giving rise to possible impairment of criminal proceedings." Anjother one: "The City of Oklahoma City must assert a timing objection, and based on that objection, will withhold production at this time in accordance with 12 Okla. Stat. § 2004.1(C)(2)(b). Until the defendant ... appears for arraignment in the criminal case of ... CM-2013-2932, the civil discovery of police reports and evidence in that matter appears to circumvent the criminal process. Under the Criminal Discovery Code, codified at 22 Okla. Stat. §§ 2001 and 2002, the defendant is not be entitled to receive any police reports related to a pending criminal investigation until he appears for arraignment. Section 2002(D) states: “Motions for discovery may be made at the time of the district court arraignment or thereafter ….” After the arraignment, there still may be a timing issue since your client may be a victim and witness in the criminal case, and may not be entitled to review those police reports " Another:" The subpoena appears to be issued in a protective-order special proceeding. It is my understanding that there is a criminal investigation concerning the same subject matter. The City objects to the subpoena and requires an order compelling production. To the extent that this matter can be considered civil discovery, the City is relying upon 12 Okla. Stat. § 2004.1(C)(2)(b), § 3226(B)(1)(a) and (C), and § 3237(A)(2)." Another: " Your client appears to be the plaintiff or petitioner in a paternity case, and defendant in an Order of Protection case. The subpoena commands the production of police records pertaining to each adult party and a juvenile. Of course juvenile records and records of police contact with juveniles cannot be obtained via subpoena. See 10A Okla. Stat. § 1-6-106. The City of Oklahoma City must assert a timing objection, and based on that objection, will withhold production at this time in accordance with 12 Okla. Stat. § 2004.1(C)(2)(b). First, we do not have any indication that the subpoena was served on the opposing party in either case. See 12 Okla. Stat. § 2004.1(B)(1). The paternity case was filed on December 26, 2012, and thus discovery cannot proceed until 30 days after the defendant was served, which does not appear to have occurred. See 12 Okla. Stat. § 2004.1(B)(5). Finally, under the Criminal Discovery Code, codified at 22 Okla. Stat. §§ 2001 and 2002, your client is not be entitled to receive any police reports related to a pending criminal investigation until he appears for arraignment. Section 2002(D) states: “Motions for discovery may be made at the time of the district court arraignment or thereafter ….” Until your client appears for arraignment, the civil discovery of police reports and evidence appears to circumvent the criminal process. The City has no objection to the production of police reports and photographs, other than these timing and service issues." One more: " I have received a copy of a subpoena dated ... in the above-referenced proceeding, directed to the Oklahoma City Police Department. The City, based on the following objections, will withhold production at this time, in accordance with 12 Okla. Stat. § 2004.1(C)(2)(b). First, the documents requested are criminal investigative records in a criminal rape case (reported by your client) that are still under investigation. Until the investigation is complete, production of these documents would be premature and prejudicial to the criminal justice system. Pursuant to the Criminal Discovery Code, 22 Okla. Stat. § 2002, such records are not available to the defendant until after a case is filed and after the formal not guilty plea is made in the district court. Police records may be provided sooner, at the instance of the prosecutor, but this type of discovery is timed in connection with a preliminary hearing, a stage that has not been reached. Civil discovery cannot get ahead of criminal discovery in the orderly process of justice. Second, it is not clear that discovery subpoenas are authorized at all in protective order proceedings, which are expedited and simplified proceedings that are authorized in the criminal code, not the civil pleading code. However, Police Policy will allow the City to provide the victim of a crime with police reports after the criminal defendant has been provided copies in accordance with criminal procedure." Finally: "The subpoena commands the production of police lab test results regarding the collision. The City of Oklahoma City asserts a timing objection, and based on that objection, will withhold production at this time in accordance with 12 Okla. Stat. § 2004.1(C)(2)(b). Your client on February 16, 2011, failed to appear for arraignment in the related criminal case styled City of Oklahoma City v. ..., filed January 6, 2011, in the Municipal Criminal Court of Record of The City of Oklahoma City. Under the Criminal Discovery Code, codified at 22 Okla. Stat. §§ 2001 and 2002, your client is not be entitled to receive any police reports until he appears for arraignment. Section 2002(D) states: “Motions for discovery may be made at the time of the district court arraignment or thereafter ….” Discovery in the Oklahoma City Municipal Court is governed by the same procedures. 11 Okla. Stat. § 28-120. Until your client appears for arraignment, the civil discovery of police lab reports appears to circumvent the criminal process. Accordingly, please seek this discovery in the criminal case to which the report relates. The City has no objection to the production of lab test results relating to the collision, other than this timing issue." -----Original Message----- From: oama-request@lists.imla.org <oama-request@lists.imla.org> Sent: Friday, April 9, 2021 12:06 PM To: oama@lists.imla.org Subject: Oama Digest, Vol 17, Issue 5 Send Oama mailing list submissions to oama@lists.imla.org To subscribe or unsubscribe via email, send a message with subject or body 'help' to oama-request@lists.imla.org You can reach the person managing the list at oama-owner@lists.imla.org When replying, please edit your Subject line so it is more specific than "Re: Contents of Oama digest..." Today's Topics: 1. Subpoena for law enforcement records in ongoing investigation? (Teresa Nowlin) 2. Re: Subpoena for law enforcement records in ongoing investigation? (Kim@spadylaw.com) 3. Re: Subpoena for law enforcement records in ongoing investigation? (Teresa Nowlin) ---------------------------------------------------------------------- Message: 1 Date: Fri, 9 Apr 2021 16:51:26 +0000 From: Teresa Nowlin <tnowlin@jenksok.org> Subject: [Oama] Subpoena for law enforcement records in ongoing investigation? To: "oama@lists.imla.org" <oama@lists.imla.org> Message-ID: <DM6PR14MB392947897B4348E37BB07E7FBA739@DM6PR14MB3929.nam prd14.prod.outlook.com> Content-Type: multipart/alternative; boundary="_000_DM6PR14MB392947 897B4348E37BB07E7FBA739DM6PR14MB3929namp_" Is anyone aware of a statute or case law that provides support for the assertion that law enforcement records relating to an ongoing criminal investigation should be considered "confidential" and protected from disclosure pursuant to a subpoena in a civil action? Thanks! Teresa Nowlin | City Attorney 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: not available Type: text/html Size: 2729 bytes Desc: not available ------------------------------ Message: 2 Date: Fri, 9 Apr 2021 12:00:20 -0500 From: <Kim@spadylaw.com> Subject: [Oama] Re: Subpoena for law enforcement records in ongoing investigation? To: <oama@lists.imla.org> Message-ID: <005401d72d61$d5121a50$7f364ef0$@spadylaw.com> Content-Type: multipart/related; boundary="----=_NextPart_000_0055_01D72D37.EC3F94C0" It’s in the Open Records Act. Try 51 OS § 24A.8 and 24A.24. CONFIDENTIALITY NOTE: The information in this electronic mail, including attachments, is sent by, or on behalf of, an attorney and is intended to be the private confidential property of the sender. The materials are intended solely for the receipt, use, benefit and information of the recipient indicated above. This communication may be protected by the attorney-client privilege, the work-product privilege, or other legal rules. If the reader of this message is not the intended recipient, you are notified that retention, use, review, disclosure, copying, distribution, or the taking of any other action in reliance on the contents of this transmission or attachments is strictly prohibited. If you have received this transmission in error, please notify us immediately by electronic mail or telephone (405-542-6056) and arrange for the destruction or return of this transmission to us. Thank you for your cooperation. From: Teresa Nowlin <tnowlin@jenksok.org> Sent: Friday, April 9, 2021 11:51 AM To: oama@lists.imla.org Subject: [Oama] Subpoena for law enforcement records in ongoing investigation? Is anyone aware of a statute or case law that provides support for the assertion that law enforcement records relating to an ongoing criminal investigation should be considered “confidential” and protected from disclosure pursuant to a subpoena in a civil action? Thanks! Teresa Nowlin | City Attorney 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: not available Type: text/html Size: 4863 bytes Desc: not available -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: image001.jpg Type: image/jpeg Size: 5158 bytes Desc: not available ------------------------------ Message: 3 Date: Fri, 9 Apr 2021 17:05:35 +0000 From: Teresa Nowlin <tnowlin@jenksok.org> Subject: [Oama] Re: Subpoena for law enforcement records in ongoing investigation? To: "Kim@spadylaw.com" <Kim@spadylaw.com>, "oama@lists.imla.org" <oama@lists.imla.org> Message-ID: <DM6PR14MB3929C0296C8B1B8BDF755536BA739@DM6PR14MB3929.nam prd14.prod.outlook.com> Content-Type: multipart/related; boundary="_004_DM6PR14MB3929C0 296C8B1B8BDF755536BA739DM6PR14MB3929namp_"; type="multipart/alternative" But not an open record request, it's a subpoena. From: Kim@spadylaw.com <Kim@spadylaw.com> Sent: Friday, April 9, 2021 12:00 PM To: oama@lists.imla.org Subject: [Oama] Re: Subpoena for law enforcement records in ongoing investigation? [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. It's in the Open Records Act. Try 51 OS § 24A.8 and 24A.24. [cid:image001.jpg@01D72D38.7EF62CC0] CONFIDENTIALITY NOTE: The information in this electronic mail, including attachments, is sent by, or on behalf of, an attorney and is intended to be the private confidential property of the sender. The materials are intended solely for the receipt, use, benefit and information of the recipient indicated above. This communication may be protected by the attorney-client privilege, the work-product privilege, or other legal rules. If the reader of this message is not the intended recipient, you are notified that retention, use, review, disclosure, copying, distribution, or the taking of any other action in reliance on the contents of this transmission or attachments is strictly prohibited. If you have received this transmission in error, please notify us immediately by electronic mail or telephone (405-542-6056) and arrange for the destruction or return of this transmission to us. Thank you for your cooperation. From: Teresa Nowlin <tnowlin@jenksok.org<mailto:tnowlin@jenksok.org>> Sent: Friday, April 9, 2021 11:51 AM To: oama@lists.imla.org<mailto:oama@lists.imla.org> Subject: [Oama] Subpoena for law enforcement records in ongoing investigation? Is anyone aware of a statute or case law that provides support for the assertion that law enforcement records relating to an ongoing criminal investigation should be considered "confidential" and protected from disclosure pursuant to a subpoena in a civil action? Thanks! Teresa Nowlin | City Attorney 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: not available Type: text/html Size: 5889 bytes Desc: not available -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: image001.jpg Type: image/jpeg Size: 5158 bytes Desc: image001.jpg ------------------------------ Subject: Digest Footer Oama mailing list -- oama@lists.imla.org To unsubscribe send an email to oama-leave@lists.imla.org ------------------------------ End of Oama Digest, Vol 17, Issue 5 *********************************** CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.