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National Crime Victim Law Institute

Lear v. Jamrogowicz, —P.3d—, No. DA 12-0523, 2013 WL 2407196 (Mont. June 4, 2013).

July 08, 2013

The victim sought a civil restraining order against defendant for stalking.  She received a temporary order of protection, which was to remain in effect for six months, at which point a hearing would be held to determine if the order should become a permanent order of protection.  Defendant moved to vacate the scheduled hearing to allow her to conduct discovery, and the court granted this request and issued a discovery scheduling order.  As part of this discovery, defendant sought and received hundreds of pages of responses from the victim in the form of interrogatories, requests for admissions, and requests for production.  Defendant was then charged with criminal stalking, and the victim subsequently sought and received a criminal order of protection.  The victim moved to dismiss the temporary civil order without prejudice, stating that she had achieved her goal of no contact through the criminal proceeding.  Defendant argued the civil order should be dismissed with prejudice as a discovery sanction against the victim for failing to attend a scheduled deposition.  The court granted the victim’s petition dismissing the temporary civil order without prejudice, and found that sanctions were not warranted, and defendant appealed.  On appeal, the court affirmed the lower court’s order dismissing the temporary civil order without prejudice, finding that the focus on sanctions was misdirected.  Instead, the court found that the breadth of discovery allowed in the civil proceeding in this case was “wholly antithetical” to the purpose of a temporary order of protection: “[T]he object of a [temporary order of protection] proceeding is the swift and efficient protection of one who is being harassed and intimidated by another.  The statutory scheme contemplates that the petition will succeed if the petitioner establishes good cause for the entry of an order, and will fail if she does not.  The provision of discovery rights to the respondent in this situation does nothing to protect a victim from harm; rather, it can exacerbate an already untenable situation.”   Accordingly, the court concluded that, “unless extraordinary circumstances justify it, courts should not compel a petitioner in a stalking matter to be subjected to discovery at the hands of the respondent.”  The court then concluded that the court below did not abuse its discretion in dismissing without prejudice, so that the victim may “resurrect the action quickly and without being required to commence the claim anew.”