Presgrove family continues fight for docs

The Estate of Noah Nichols (Presgrove) has formally responded to the Oklahoma State Bureau of Investigation’s (OSBI) motion to quash a subpoena for documents, arguing that a recent state Supreme Court decision invalidates the OSBI’s claim that the records are statutorily confidential and exempt from civil discovery.

The Estate, which is pursuing a wrongful death lawsuit, asserted that the Oklahoma Supreme Court’s 2022 ruling in McKesson v. Campbell clarified the broad reach of the Oklahoma Discovery Code, even for state-held information designated as confidential.

The OSBI had moved to quash the subpoena for documents, citing a confidentiality provision within state statute 74 O.S. § 150.5d. The Estate, however, contended that the McKesson ruling established that state-held materials are only immune from civil discovery if the Legislature explicitly includes an exclusion or a bar in the statute—a provision the Estate argues is absent in the OSBI’s cited law.

In McKesson, the Supreme Court ordered the disclosure of statutorily confidential data from Oklahoma’s Prescription Monitoring Program, noting that the Discovery Code is not limited by confidentiality alone.

“The Oklahoma Discovery Code is not limited by confidential information, whether public or private,” the McKesson ruling stated. The Court added that it would not expand confidentiality beyond the text of a statute.

The Estate further attacked the OSBI’s reliance on a 1993 Supreme Court decision, State ex rel. Hicks v. Thompson, stating that the Hicks analysis is irrelevant and potentially incorrect given the McKesson precedent and subsequent amendments to the statute cited. The Estate pointed to other state laws that do explicitly bar discovery for certain OSBI information, such as the CODIS Database and Crimes Information Unit files, which use the term “privileged,” a word missing from the statute cited by the OSBI.

Addressing the OSBI’s concerns over releasing confidential information, the Estate noted that a protective order already exists in the case to safeguard the information during the discovery process.

Furthermore, the Estate stated that pretrial discovery in Oklahoma is considered private, not public, until admitted into evidence, citing the Supreme Court’s 1989 ruling in Inhofe v. Wiseman. This fact, the Estate argued, mitigates any concern about the information being made public.

The Estate is seeking a court order denying the OSBI’s Motion to Quash, insisting that the legal landscape established by the McKesson decision compels the production of the requested documents.