Attorneys for legal team fight to keep documents related to sex harassment probe secret

Don Shooter testifies during a hearing, June 14, 2018, in Judge Rosa Mroz’s Maricopa County Superior Courtroom, Phoenix.

The attorneys who handled the sex harassment investigation that resulted in the ouster of Rep. Don Shooter are balking at his bid to get the full report and all the documents used to prepare it.

Letters obtained by Capitol Media Services show Gregory Falls, who represents the legal team that prepared the investigative report, contends anything that hasn’t already been made public is not subject to disclosure. Falls contends that the documents Shooter wants are protected, whether by attorney-client privilege with the House of Representatives that hired his law firm, or by the idea that the papers represent “work product.”

But Falls said there are other reasons to keep Shooter and his attorney, Kraig Marton, from getting their hands on the documents.

He is accusing Shooter of going on a “fishing expedition” to get information that goes far beyond what the former Yuma lawmaker says he needs to defend himself in a civil lawsuit filed against him by Rep. Michelle Ugenti-Rita. She is one of his alleged victims cited in the investigative report that eventually resulted in the House vote in January to eject him.

There is some basis for that claim that what Shooter wants is designed, at least in part, to clear his name as he seeks to reenter politics with a bid this year for the state Senate.

Shooter told Capitol Media Services he believes House Speaker J.D. Mesnard gave other House members “only a partial and modified version” of the report, the one they used in his ouster. He said Mesnard, who has refused to comment, “removed exculpatory evidence and took out derogatory evidence about my accusers.”

And Shooter said release of the full report and all the notes and documents made in preparing it will paint quite a different pictures.

“I think there’s going to be a tremendous amount of information that will damage the credibility of my accuser and, in addition, will bolster my view of the facts,” he said.

It ultimately will be up to Maricopa County Superior Court Judge Bruce Cohen if Shooter gets what he has demanded and, by extension, the public also gets a look.

House Speaker J.D. Mesnard sought an investigation late last year after Ugenti-Rita and others made accusations of unwanted harassment by Shooter. Shooter, in turn, claimed that Ugenti-Rita had acted improperly in actions with others.

The report provided to lawmakers by Craig Morgan, who is at the same firm as Falls, concluded there was “credible evidence” Shooter had violated the House policy on sexual harassment, a policy that Shooter said was not enacted until after the allegations against him were made. He was ejected by colleagues in January on a 56-3 vote.

That same report said that former House staffer Brian Townsend, to whom Ugenti-Rita was engaged, sent “unsolicited, sexually explicit communications” to someone else who was not identified. But it exonerated Ugenti-Rita of any wrongdoing.

In June, Ugenti-Rita filed a civil lawsuit against Shooter, charging him with slander, libel, battery and negligence. Shooter, in turn, has filed a counterclaim accusing Ugenti-Rita of defamation.

Marton, as Shooter’s attorney, said that opens the door for him to subpoena the full report and all the related documents, all records he says are necessary for Shooter to defend himself.

Falls disagrees, saying Shooter is free to seek out the information he needs — elsewhere.

“In other words, Shooter can do his own discovery or ‘investigation’ if he chooses,” Falls wrote.

Then there are the legal issues.

Falls said Arizona law protects communications between any government employee and an attorney for a governmental entity if it is designed to provide legal advice or even just to obtain information to provide legal advice. What all that means, he wrote, is that statements by members and employees of the House to Morgan and his legal team are privileged from disclosure.

Then there’s the issue of whether the documents Shooter wants are actually about his ability to defend himself in the lawsuit filed by Ugenti-Rita.

“Shooter has made it very clear, in a very public manner, that he is using the lawsuit and the subpoenas as a catalyst for a fishing expedition in matters unrelated to the lawsuit,” Falls wrote to Marton, citing statements Shooter made, after Ugenti-Rita filed her lawsuit, that it would provide him a means to unearth what is in the report.

And Falls is blasting Shooter and Marton for making public the subpoenas in the first place.

“Suffice it to say that we were disappointed to have learned about the subpoenas — not with an advance telephone call in the spirit of good faith cooperation — but from a reporter seeking comment from investigative counsel about subpoenas they had not yet seen or even knew existed,” Falls wrote. He also is accusing Shooter of inserting “public pageantry … into this process.”

Shooter said he’s surprised that Falls, who ultimately is acting on behalf of Mesnard and the House are fighting the release.

He said the speaker said he would release the full report if subpoenaed. Instead, Shooter said, Mesnard is running up new legal bills in his bid to keep the document secret, above and beyond the more than $200,000 spent on the report.

Mesnard, however, said he had agreed to the release — but only to any law enforcement, and only on a subpoena or pursuant to a court order. The speaker said he wants to protect the identity of some victims and others whose names have not become public.

“The subpoena that’s connected to Shooter is an entirely different issue,” he said.