AN ACT CLARIFYING THE SHOWING NECESSARY FOR THE DISCOVERY OF CONSTITUTIONALLY PROTECTED MATERIAL; AMENDING SECTION 46-4-301, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.

WHEREAS, in State v. Nelson, 283 Mont. 231, 941 P.2d 441, 54 St. Rep. 576 (1997), the Montana Supreme Court held that discovery of constitutionally protected material, such as medical records, requires a showing of a compelling state interest.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 46-4-301, MCA, is amended to read:

"46-4-301. Issuance of subpoena. (1) Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are directed to appear before the prosecutor and give testimony and produce books, records, papers, documents, and other objects as may be necessary and proper to the investigation.

(2) Except as provided in subsection (3), a subpoena may be issued only when it appears upon the affidavit of the prosecutor that the administration of justice requires it to be issued.

(3) In the case of constitutionally protected material, such as but not limited to medical records or information, a subpoena may be issued only when it appears upon the affidavit of the prosecutor that a compelling state interest requires it to be issued. In order to establish a compelling state interest for the issuance of such a subpoena, the prosecutor shall state facts and circumstances sufficient to support probable cause to believe that:

(a) an offense has been committed; and

(b) the information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed."

Section 2. Effective date. [This act] is effective on passage and approval.

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I hereby certify that the within bill,

SB 0221, originated in the Senate.

Secretary of the Senate

President of the Senate

Signed this	day

of	, .

Speaker of the House

Signed this	day

of	, .

SENATE BILL NO. 221

INTRODUCED BY S. DOHERTY, L. GROSFIELD, M. HALLIGAN

BY REQUEST OF THE SENATE JUDICIARY STANDING COMMITTEE

AN ACT CLARIFYING THE SHOWING NECESSARY FOR THE DISCOVERY OF CONSTITUTIONALLY PROTECTED MATERIAL; AMENDING SECTION 46-4-301, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.