L. B. v. United States

[[COURTLISTENER_SUBOPINION {"id":"10653032","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT 
                    FOR THE DISTRICT OF MONTANA 
                          '  BILLINGS DIVISION 

L.B., individually and on behalf of               CV 18-74-BLG-DWM 
D.B., a minor, 
            Plaintiff, 
                                                      ORDER 
      VS. 

UNITED STATES OF AMERICA, 
BUREAU OF INDIAN AFFAIRS, and 
DANA BULLCOMING, agent of the 
Bureau of Indian Affairs sued in his 
individual capacity, 
            Defendants. 

     On September 30, 2024, Plaintiff L.B. moved to compel Defendant Dana 
Bullcoming to answer questions he unilaterally refused to answer his December 
14, 2022 deposition, and to compel the government to produce Defendant 
Bullcoming’s presentence report and psychosexual evaluation for in camera 
review.  (Doc. 160.)  The government does not oppose the former request (with 
qualification) but does oppose the latter.  (Doc.  162.) 
     Under the Federal Rules of Civil Procedure, an examining party may 
properly seek an order compelling an answer if a deposition witness refuses to 

answer a question.  Fed. R. Civ. P. 37(a)(3)(B)(i).  As Defendant Bulllcoming

refused to answer questions during his deposition on December 14, 2022, 
Plaintiffs request for an order compelling Defendant to answer is granted.  See id. 
     Plaintiffs other requests are less straightforward.  The Supreme Court has 
noted that “in both civil and criminal cases the courts have been very reluctant to 
give third parties access to the presentence investigation report prepared for some 
other individual or individuals.”  U.S. Dep’t of Justice v. Julian,
486 U.S. 1,  12
(1988).  This is because courts fear the chilling effect such disclosure may have on 
the willingness of criminal defendants to contribute information to such reports and 
the need to protect the confidentiality of the information contained therein.  Jd. 
“Accordingly, the courts have typically required some showing of special need 
before they will allow a third party to obtain a copy ofa presentence report.”  Jd. 
Plaintiff has demonstrated “special need” because of the difficulty in obtaining the 
information from other sources, and the Plaintiff seeks only a narrowly tailored 
portion of information.  See
id.
(internal citations omitted).  Thus, the “ends of 
justice are served” by limited disclosure here.  See
id.
(internal citations omitted). 
     Even if discoverable, the admissibility of information contained in a 
presentence report at trial poses its own challenges, particularly hearsay and Rule 
403 balancing.  As a result, presentences reports are generally not “admitted 
wholesale,” and a party cannot use the “guise of impeachment” to put inadmissible 
information before a jury.  See Wilson v. Maricopa Cnty.,
2007 WL 686726
, at *5

(D. Ariz. 2007).  As a result, Plaintiff will not be given access to Defendant’s 
presentence report, except for the pertinent three references attached to this Order 
and provided under seal. 
     As it relates to Defendant Bullcoming’s psychological information, both 
Montana law and federal law protect psychologist-client privilege.  The Montana 
Code provides that the “confidential relations and communications between a 
psychologist, psychiatrist, licensed professional counselor, or licensed clinical 
social worker and a client must be” protected “on the same basis as provided by 
law for those between an attorney and a  client.”
Mont. Code Ann. § 26-1-807
. 
The United States Supreme Court also recognizes a federal psychologist-patient 
privilege and has definitively concluded that “the federal privilege should also 
extend to confidential communications made to licensed social workers in the 

course of psychotherapy.” Jaffee v. Redmond,
518 U.S.  1, 15
(1996).  Thus, 
Defendant Bullcoming’s psychosexual evaluation is privileged. 
     Accordingly, IT IS ORDERED that Plaintiff's motion to compel, (Doc. 
160), is GRANTED IN PART and DENIED IN PART as follows: 
     (1) The request to re-open Defendant Bullcoming’s deposition is 
GRANTED.  Questioning shall include only the identities of the women Defendant 
Bullcoming has had sexual encounters with when on duty as a BIA police officer, 
and the circumstances of any of those encounters, even if consensual;

     (2) The request for in camera review of Defendant Bullcoming’s 
presentence report in United Staes v. Bullcoming, 17-cr-00089-SPW-1  (Mont.), is 
GRANTED.  The pertinent references are attached to this Order under seal; and 
     (3) The request to compel disclosure of Defendant Bullcoming’s 
psychosexual evaluation is DENIED. 
                     “~ 
     DATED this  | 8  day of October, 2024. 

                                   Donald Wé Molloy,   District Judge 
                                   United  States District Court 
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