The attorney representing a University of Montana student whose overturned expulsion is the subject of a records request by Jon Krakauer claims the bestselling author already acquired the documents illegally and is using the court system to "launder" them.
Krakauer's attorney says his client doesn't have any documents about the former student that are not a part of public records.
In early September Missoula attorney David Paoli — who represented former University of Montana quarterback Jordan Johnson during a 2013 rape trial that saw Johnson acquitted — filed a pair of motions in Lewis and Clark County District Court, asking for the judge to force Krakauer to turn over any documents he already possesses and reveal their sources.
Paoli also asked that the court toss out Krakauer’s petition to have the Commissioner of Higher Education release documents about how it handled the expulsion of Paoli’s client — a UM student, identified only as John Doe, who was accused of raping another student.
In 2012, following multiple campus proceedings, the unidentified UM student accused of rape — in a case whose allegations were identical to those in the eventual criminal case filed against Johnson — was expelled. That expulsion was upheld by then-President Royce Engstrom, but later overturned when the student appealed to the Commissioner of Higher Education, Clayton Christian.
Krakauer sued to find out how Christian dealt with the case.
A 2014 order by a District Court judge in Helena told Christian’s office to let the author review the documents he wanted to see, but the Commissioner’s Office appealed the ruling. In 2016, the Montana Supreme Court sent the case back to the District Court for an in camera — that is, private — review of the documents to determine which, if any, should be released.
The John Doe whose UM expulsion and reinstatement is at the center of Krakauer’s request has been allowed to act as an intervenor in the case, and is represented by Paoli — Johnson’s defense attorney in the criminal case. While Paoli only terms his client as Doe, Krakauer’s court filings have specifically referenced him as being Johnson.
In his court motions earlier this month, Paoli said that in interviews, Krakauer has repeatedly claimed to have records and documents that he himself has stated he “shouldn’t possess,” with Paoli claiming that these records, which he believes are about his client, were “obtained improperly or illegally.”
“The court should require Krakauer to provide it with all the ill-gotten fruit from his poisonous harvest of student records,” Paoli wrote.
He is also requesting that Krakauer tell the judge, as well as the Commissioner of Higher Education’s office and Paoli and his client, where he got the records.
Paoli wrote in a supporting brief that Montana’s Media Confidentiality Act, which protects journalists from being forced to divulge information or sources of information gathered as part of their work, does not cover book authors.
“Really, Krakauer isn’t asking for the records. He already has them. What he is looking to the District Court for is a ‘get out of jail free card,’” Paoli wrote. “Here, Krakauer obtained documents by illegitimate — i.e. illegal — means and is trying to use this Court to launder the documents.”
Paoli is also asking the court to dismiss Krakauer’s petition for the documents to be reviewed entirely, saying Krakauer broke federal education privacy laws by gaining access to documents without a court order or subpoena.
“Petitioner’s hands are not just unclean, they are filthy with the ‘thousands and thousands of pages’ of records he should not possess.”
In a court filing replying to Paoli’s requests, Helena attorney Mike Meloy — who represents Krakauer — said the only documents the author has about Johnson were either released by a federal court or a part of the U.S. Department of Justice’s investigation report.
“He has never obtained any of Mr. Johnson’s student records, other than those that were filed by his attorney in federal court and ultimately made public by that court,” Meloy wrote.
Meloy wrote that Krakauer is interested in how Johnson’s expulsion was overturned after it was upheld by Engstrom.
“From that point forward, the disposition by University officials of Doe’s student status is secret,” Meloy said. “Any argument that his request for records was motivated by an ulterior motive or somehow brought in bad faith is therefore wholly misplaced.”
Meloy wrote that Paoli’s request that Krakauer “disgorge” any documents he already has was made without citing any legal authority for the court to make such an order, adding that he doesn’t believe any such authority exists.
“Any allegations to the contrary by Intervenor are based on pure suspicion and speculation, both of which have been discredited by Krakauer’s sworn testimony.”