MONTANA SUPREME COURT REJECTS DOJ’S DISCOVERY ROADBLOCKS

On January 6, 2026, the Montana Supreme Court issued an order denying and dismissing the State’s petition for a writ of supervisory control—an effort to undo or pause district court discovery rulings in the HB 407 constitutional challenge - in Cottonwood Environmental Law Center v. State of Montana.  At its core, the dispute wasn’t abstract procedure—it was about whether the State could keep key legislative records out of the plaintiffs’ hands while defending a law that curbs local action on single-use plastics.  Rob Farris-Olsen and Kim Wilson of Morrison Sherwood Wilson Deola handled the appeal alongside John Meyer of Cottonwood Environmental Law Center.

The record shows the State took a hard line against disclosure. It objected on the grounds that the information was “either publicly available or not within the possession, custody, or control” of the Department of Justice, and further claimed it was “not required” to obtain documents from other parts of government—while also raising legislative privilege/immunity as a shield.  The district court responded the way courts are supposed to when a party resists discovery without fully carrying its burden: it required disputed materials to be submitted for in camera review and ordered production of the remaining responsive documents. 

The Supreme Court’s message was clear: extraordinary relief is not a shortcut for avoiding ordinary discovery obligations, especially on a thin record.  The Court also focused on what “control” actually means in discovery—whether there is a legal right to obtain documents on demand—and declined to accept the premise that the requested materials were automatically beyond reach simply because they originated in the Legislature.  Just as importantly, the Court noted the State had not demonstrated that the Legislature was actually asserting privilege in a way that would justify withholding everything, nor that the State had tried to obtain the documents and been rebuffed. 

This ruling matters because it protects the integrity of the fact-finding process. When the State defends HB 407 by claiming a “compelling” justification, it cannot simultaneously block discovery aimed at testing what that justification really was, who considered it, and what evidence supported it.  By denying supervisory control, the Court refused to let document resistance become a litigation strategy—and reinforced that transparency in discovery is essential when constitutional rights and statewide governance are on the line.