Johnson & Johnson v. Wilson

                                                    Office of the
                                                                    New Mexico
                                                        Director    Compilation
                                                                    Commission
                                                     2025.02.05
                                                '00'07- 09:21:00
           IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 21, 2024

No. S-1-SC-39284

JOHNSON & JOHNSON and
JOHNSON & JOHNSON CONSUMER
COMPANIES, INC.,

      Petitioners,

v.

THE HONORABLE
MATTHEW JUSTIN WILSON,

      Respondent,

and

STATE OF NEW MEXICO ex rel.
HECTOR BALDERAS, Attorney General;
BAUSCH HEALTH COMPANIES, INC.,
f/k/a VALEANT PHARMACEUTICALS
INTERNATIONAL, INC.; BAUSCH HEALTH
AMERICAS, INC., f/k/a VALEANT
PHARMACEUTICALS INTERNATIONAL;
and BAUSCH HEALTH US LLC, f/k/a
VALEANT PHARMACEUTICALS NORTH AMERICA LLC,

      Real Parties in Interest.

ORIGINAL PROCEEDING ON PETITION FOR
WRIT OF SUPERINTENDING CONTROL

Bardacke Allison, LLP
Benjamin Allison
Justin W. Miller
Cole P. Wilson
Santa Fe, NM

Skadden, Arps, Slate, Meagher & Flom, LLP
Richard T. Bernardo
New York, NY

for Petitioners

Raúl Torres, Attorney General
Mark W. Allen, Assistant Attorney General

for Respondent

Hector H. Balderas, Attorney General
Brian L. Moore, Assistant Attorney General
Brian McMath, Assistant Attorney General
Santa Fe, NM

Robles, Real & Anaya, P.C.
Marcus J. Rael, Jr.
Albuquerque, NM

Fears Nachawati Law Firm
Majed Nachawati
S. Ann Saucer
Dallas, TX

for Real Party in Interest State of New Mexico
ex rel. Hector H. Balderas, Attorney General

Office of the Governor
Holly Agajanian, Chief General Counsel
Kyle P. Duffy, Deputy General Counsel
Santa Fe, NM

for Amicus Curiae

                                          OPINION

THOMSON, Chief Justice.

{1}     This case affords us the opportunity to decide a narrow—but important— issue of
first impression: whether the New Mexico Office of the Attorney General (Attorney
General or OAG), in representing the State in civil litigation brought by the attorney
general, has the discovery authority to obtain and produce documents and information
from a state executive agency that is not a named party to the litigation. Exercising our
original jurisdiction to issue a writ of superintending control under Article VI, Section 3 of
the New Mexico Constitution, we answer that question in the affirmative and hold that
under New Mexico’s governing statutory framework, see NMSA 1978, § 8-5-2 (1975),
the Attorney General’s authority to access executive agency materials for discovery
purposes is fairly and necessarily implied and incurs no resulting constitutional violation.
I.      PROCEDURAL BACKGROUND

{2}    The original action in district court was brought by the Attorney General on behalf
of the State, and seeks equitable and injunctive relief, civil penalties, and money
damages including restitution against Defendants-Petitioners Johnson & Johnson and
Johnson & Johnson Consumer Companies, Inc. (collectively, Petitioners), as well as
several affiliate companies. The amended complaint expressly invokes the State’s
“sovereign and parens patriae authority” 1 in alleging that Petitioners marketed,
advertised, and sold talcum powder products in New Mexico despite knowledge that
those products contained carcinogens, including asbestos. The State seeks recovery
under both common-law and statutory causes of action. These encompass, on the one
hand, claims sounding in fraud and negligent misrepresentation; negligence; and unjust
enrichment; and also include claims arising under the New Mexico Unfair Practices Act,
NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2019); the New Mexico
Medicaid Fraud Act, NMSA 1978, §§ 30-44-1 to -8 (1989, as amended through 2004);
the New Mexico Fraud Against Taxpayers Act, NMSA 1978, §§ 44-9-1 to -14 (2007, as
amended through 2015); and the New Mexico False Advertising Act, NMSA 1978, §§
57-15-1 to -10 (1965, as amended through 1967).

{3}   The State’s amended complaint references six state executive agencies not
named as parties to the litigation. The State alleges these agencies incurred unspecified
expenditures due to Petitioners’ alleged wrongdoing. The agencies identified are the
New Mexico Human Services Department (HSD)—the agency charged with the
administration of the state’s Medicaid program—as well as the New Mexico Department
of Health, the New Mexico Department of Corrections, the Risk Management Division of
the General Services Department, the Retiree Health Care Authority, and the Public
Schools Insurance Authority.

{4}     In addition to litigation delays attributed to Petitioners’ prior bankruptcy stay, the
case remains mired in the discovery stage. The parties’ exchange of document requests
and interrogatories resulted in one main sticking point: a disagreement over the
Attorney General’s authority to obtain and produce discovery documents and
information belonging to the state executive agencies listed in the amended complaint.
The Attorney General’s response to the discovery request caused a substantial disparity
in the parties’ respective quantities of documents produced. Petitioners turned over a
half million documents—while the State produced only the handful of documents (four to
be precise) located in the OAG’s files, as well as a single spreadsheet prepared by that
office.

{5}    This disparity, in turn, led Petitioners to move to compel the production of the
materials from agencies not parties to the litigation but named in the complaint. The
motion to compel argues that the State—through its Attorney General—having brought
“a wide-ranging complaint alleging damages” that include executive agency

1A state’s parens patriae (literally parent of the country) powers allow it to bring an action on behalf of its
citizenry against a defendant whose conduct impacts “‘the health and well-being—both physical and
economic—of its residents in general.’” LG Display Co., Ltd. v. Madigan, 

 (7th Cir.
2011) (citation omitted).
expenditures, “must produce documents and information within the possession,
custody, or control of those agencies.” Opposing the motion, the State asserted that the
Attorney General “‘has neither possession, custody or control of documents within other
branches, agencies, departments, or other entities of State of New Mexico government,
nor, unless otherwise advised by the State, the practical ability to get documents from
those agencies.’” On that basis, the State sought to relegate Petitioners’ agency
discovery requests to third-party discovery only. As an apparent fallback position and by
way of footnote, the State attempted to distance itself from the inclusion in its amended
complaint of any references to executive agencies other than HSD. The State asserted
that by that point in time, it “believe[d] that . . . HSD is the only state agency that would
have relevant information on damages sustained by the State.”

{6}     The district court denied outright Petitioners’ motion to compel, concluding that
“[t]he state agencies mentioned in the [State’s] Amended Complaint, such as the [HSD],
are not subject to common executive control nor are they interrelated with the [OAG]
and should not be lumped together for discovery purposes” (citing United States v. Am.
Express Co., 1:10-cv-04496 at 5-7, 

 (E.D.N.Y. July 29, 2011), ECF
No. 151).

{7}    Petitioners now seek to invoke this Court’s original jurisdiction by way of writ of
superintending control, requesting that we review—and reverse—the district court’s
unfavorable discovery ruling. The parties’ present submissions reiterate their discovery
positions in the district court with minor variations. Specifically, Petitioners argue that
the State’s discovery obligations extend to its constituent agencies and that, even if that
were not so, the State would still be required to produce agency documents and
information under New Mexico’s liberal discovery standards. The State counters that the
discovery relief sought by Petitioners would infringe on separation of powers principles
involving the Attorney General and the Governor because “the State, acting through the
[OAG], does not have possession, custody, or control of documents or information held
by gubernatorially controlled State agencies,” in particular any “not a party to the
underlying case.” In addition, the State echoes its misgivings over its own pleading
assertions concerning expenditures made by multiple executive agencies, this time
representing that it now seeks compensation for expenditures made solely by HSD.

{8}     For reasons set out herein, we grant the petition for writ of superintending control
to review the statutory and separation of powers issues here presented, vacate the
district court’s discovery order, and remand the matter to the district court with
instructions to compel the production of all relevant, responsive, and non-privileged
documents and information held by the executive agencies referenced in the State’s
amended complaint. Our remand is without prejudice to the State’s right to file a motion
to amend its amended complaint consistent with the multi-agency concerns expressed
in its court filings in this case. We do not purport to address the merits of any such
motion or, for that matter, of any specific discovery requests.
II.    DISCUSSION

A.     This Court’s Power of Superintending Control

{9}    “The power of superintending control is the power to control the course of
ordinary litigation”—and hence “the authority to regulate pleading, practice, and
procedure”—in lower courts. Dist. Ct. of the Second Jud. Dist. v. McKenna, 1994-
NMSC-102, ¶ 3, 

, 

 (internal quotation marks and citation
omitted). This broad and extraordinary power allows the Court both to “offer guidance to
lower courts on how to properly apply the law,” State ex rel. Torrez v. Whitaker, 2018-
NMSC-005, ¶ 30, 

, and “to correct any specie of error,” Kerr v. Parsons,

, 

, including any error in the discovery process, see
State ex rel. Brandenburg v. Blackmer, 

, 

, 

 (recognizing that a discovery order, in proper circumstances where “important legal
issues” are involved, may be “reviewable as an exercise of superintending control”).

{10} The exercise of our superintending control authority, traditionally sparing in use,
see State ex rel. Anaya v. Scarborough, 

, ¶ 8, 

, 

, is typically reserved for situations where it is “necessary to prevent irreparable
mischief, great, extraordinary, or exceptional hardship, or costly delays and unusual
burdens of expense,” or to address “an issue of first impression” of constitutional
proportion. State v. Wilson, 

, 

 (internal quotation
marks and citation omitted). Both criteria are present in this case, which involves
important questions surrounding intra-Executive Branch separation of powers—a
constitutional “issue of first impression . . . without clear answers under New Mexico
law,” Chappell v. Cosgrove, 

, ¶ 6, 

, 916 P.2d 836—as
well as the potential imposition of undue delay, burden, and expense on one party but
not the other by way of unilateral third-party discovery.

{11} Given the OAG’s stated commitment to pursuing more environmental, consumer
protection, and other state-interest civil lawsuits, 2 the statutory and constitutional issues
raised herein are not “passing one[s], and it is reasonable to predict additional future
cases may arise. Accordingly, it is in the public interest to settle the question[s] now.”
Wilson, 

 (internal quotation marks, and citation omitted).

B.     Standard of Review and Relevant Discovery Principles

{12} We generally review discovery orders for an abuse of discretion. Est. of Romero
ex rel. Romero v. City of Santa Fe, 

, 

, 

.




2The Attorney General announced a “rebrand[ing]” of the agency’s name and logo to the New Mexico
Department of Justice (https://www.santafenewmexican.com/news/local_news/attorney-general-rebrandsoffice-to-new-mexico-department-of-justice/article_ecd45cf6-af0f-11ee-beaf-ab01093741ba.html (last
visited Oct. 16, 2024)), the name given to the agency by statute, see NMSA 1978, § 8-5-1 (1933). We
refer in this opinion to the agency by the statutory name of its “head thereof”: Office of the Attorney
General or OAG. Id.
But we review de novo related questions of law, including issues of statutory and
constitutional interpretation. Id.

{13} Effective discovery is essential to the fairness of litigation, as the aim of the
discovery process is “to make a trial less a game of blindman’s buff and more a fair
contest with the basic issues and facts disclosed to the fullest practicable extent.”
United Nuclear Corp. v. Gen. Atomic Co., 

, ¶ 54, 

, 

 (internal quotation marks and citation omitted); see Pincheira v. Allstate Ins.
Co., 

, 

, 

 (stating that “the purpose of
our discovery rules is to allow liberal pretrial discovery” (emphasis omitted)). Consistent
with this liberal discovery policy is the expansive construction the United Nuclear Court
gave what are now numbered Rules 1-033 and 1-034 NMRA—which govern the use of
party discovery in the form, respectively, of interrogatories and document production
requests. United Nuclear, 

, ¶¶ 55-56. This interpretative approach,
intended “to insure that a litigant’s right to discovery is broad and flexible,” id. ¶ 54
(internal quotation marks and citation omitted), is guided by two limiting principles: first,
a party “cannot be required to produce materials which he is incapable of procuring,”
and second, a party “should not be required to obtain, collect or turn over materials
which the . . . party [seeking discovery] is equally capable of obtaining on its own,” id. ¶
57.

{14} Although each of these principles is ultimately likely to come into play in this
case, only the first principle—the ability of the producing party, here the Attorney
General acting on behalf of the State to procure agency materials—is directly implicated
in our discovery discussion. Under the United Nuclear standard, both the requirement of
Rule 1-033(A) that the answering party “furnish such information as is available to the
party” and the requirement of Rule 1-034(A)(1) that the answering party produce
documents or other “tangible things” in its “possession, custody or control” have been
distilled down to a single “pragmatic” question: “whether the party from whom the
materials are sought has the practical ability to obtain those materials.” United Nuclear,

, ¶ 58; see also 8B Charles Alan Wright, Arthur A. Miller, Federal
Practice and Procedure § 2210 (3d ed. 2010) (indicating that “control” of materials
sought under federal discovery procedures means the legal right or practical ability to
obtain them).

{15} Relying largely on federal case law, the United Nuclear Court went on to
emphasize the following points that, as will be seen, tend to support Petitioners’
discovery stance in this case:

       [I]t is immaterial under Rules 33 and 34 [of the New Mexico Rules of Civil
       Procedure for the District Courts] that the party subject to the discovery
       orders does not own the documents, or that it did not prepare or direct the
       production of the documents, or that it does not have actual physical
       possession of them. It is also clear that the mere fact that the documents
       are in the possession of an individual or entity which is different or
       separate from that of the named party is not determinative of the
       questions of availability or control.
United Nuclear, 

, ¶ 58 (footnotes omitted).

{16} We highlight an additional factor that helps foster full and meaningful discovery
consistent with our liberal discovery rules: the faithful adherence to the principle of
mutuality of discovery—the goal that discovery be reciprocal between the parties rather
than “a one-way proposition.” See Knight v. Presbyterian Hosp. Ctr., 

, ¶
16, 

, 

.

C.     The Attorney General’s Discovery Authority to Obtain and Produce Non-Party Executive Agency Materials in State-Interest Civil Litigation Brought
       by the Attorney General

{17} As the party resisting Petitioners’ discovery arguments, it is the State’s “burden to
clarify and explain its objections and to provide support therefor.” United Nuclear, 1980-
NMSC-094, ¶ 267 (internal quotation marks and citation omitted); see Blankenship v.
Hearst Corp., 

 (9th Cir. 1975) (describing this burden applied to
denying discovery sought by the defendants as a “heavy” one). The State’s principal
discovery objection, that the OAG lacks authority to obtain and produce responsive
documents or information in the possession of gubernatorially controlled executive
agencies, is ultimately unconvincing given the OAG’s role in our constitutional
government. See § 8-5-2(B) (authorizing the Attorney General to “prosecute and defend
. . . all actions and proceedings, civil or criminal, in which the state may be a party or
interested when, in his judgment, the interest of the state requires such action or when
requested to do so by the governor”). Placing the State’s discovery objection in proper
context requires an understanding of the “divided executive” structure so prevalent
today in state governments across the country and of the differing roles played by the
State, the OAG, and other executive agencies in state-interest civil litigation. We begin
our analysis addressing these two topics in turn.

1.     The divided executive branch

{18} The hallmark of a divided executive branch is the apportionment of “executive
power among different executive officers not subject to gubernatorial control,” a
dispersal of power that typically features—as is the case in New Mexico—an
independently elected attorney general who “does not serve at the will of the Governor.”
William P. Marshall, Break Up the Presidency? Governors, State Attorneys General,
and Lessons from the Divided Executive, 

, 2448 (2006); see N.M.
Const. art. V, § 1 (listing five executive officers, including the attorney general, who are
elected independently from the governor and lieutenant governor). This fragmented
executive framework—long a mainstay of governance in the vast majority of states
nationwide—is intended “to weaken the power of a central chief executive and further
an intrabranch system of checks and balances.” Marshall, supra, at 2451; see also
Goldmark v. McKenna, 

 (Wash. 2011) (en banc) (noting that the
founders of the State of Washington intended for its structurally divided executive
branch “to have each office act as a check upon the others”).
{19} The benefits of an independently elected attorney general who serves as a
state’s chief legal officer in a divided executive branch were well stated more than half a
century ago.

                [A]n elected Attorney General has a measure of independence and
       a sense of personal and direct responsibility to the public. The elected
       official has a natural and impelling desire to be creative and to exercise
       broader initiative in the service of the public. He is free of the fear of
       dismissal by any superior official if he should exercise contrary
       independent judgment. He is in the best position to render maximum
       service to the People and impartial advice to the Governor, the Legislature
       and State departments and agencies. He can appear in Court without fear
       or favor—an attorney in the fullest and finest sense of the word.

Patrick C. McGinley, Separation of Powers, State Constitutions & the Attorney General:
Who Represents the State? 

, 756 (1997) (quoting Louis K.
Lefkowitz, Position Paper of Louis K. Lefkowitz, Attorney General, to Constitutional
Convention, Committee on the Executive Branch (June 1, 1967, Albany, N.Y.)).

{20} Along with the autonomy created by the independent election of most state
attorneys general has come a considerable expansion of their duties and
responsibilities, which now typically include the “authority to pursue litigation that
advances or vindicates public interests.” Pennsylvania v. Mid-Atl. Toyota Distrib., Inc.,

, 131 (4th Cir. 1983) (“In general, a state Attorney General may institute
such suits as he deems necessary for . . . the protection of public rights.” (omission in
original) (internal quotation marks and citation omitted)); see also State Attorneys
General Powers and Responsibilities, National Association of Attorneys General
(NAAG) 247 (Emily Myers, ed., 4th ed. 2018) (observing that state attorneys general
regularly “deal with [consumer protection] issues that range from health care to
automobiles to privacy, often working together across the states and territories to
protect citizens from unfair, misleading, unconscionable, and deceptive acts and
practices”).

{21} It is the Attorney General’s exercise of this authority that gives rise to the
discovery dispute at hand. The conceptual puzzle at the heart of the dispute “is that no
matter how extensive the Attorney General’s powers have become, they still must be
reconciled with those of the Governor, who, in virtually every state [including New
Mexico], enjoys the even more expansive charge of assuring that the laws are faithfully
executed.” Marshall, supra, at 2452-53; see N.M. Const. art. V, § 4 (“The supreme
executive power of the state shall be vested in the governor, who shall take care that
the laws be faithfully executed.”).

{22} Our Legislature has set forth the near-all-encompassing duties assigned to the
Attorney General in pursuing state-interest civil litigation, which largely alleviates the
above quoted, intra-Executive Branch separation of powers concerns identified by
Marshall, supra, at 2452-53, and raised by the State herein.
2.     State-interest civil litigation and the respective roles of the Attorney
       General and state agencies

{23} As one commentator has noted, the role and function of state attorneys general
has “changed considerably” over the years, so much so that they now “occupy an
unusual position in state government, with most of them armed with virtually full control
over litigation in the name of their state and considerable independence from other
institutions in state government.” Paul Nolette, Federalism on Trial: State Attorneys
General and National Policymaking in Contemporary America 18, 20 (2015) (tracing this
evolution back to the 1980’s when the “most consequential efforts” of state attorneys
general had gone from “serv[ing] as advocates for the state and its agencies primarily
through defensive litigation” to pursuing “offensive litigation in which they represent their
states as plaintiffs in increasingly large-scale coordinated litigation campaigns”). Despite
this shift in focus and the singular brand of authority and independence that
accompanied it, state attorneys general are not typically characterized as party litigants
in the lawsuits they bring. See State ex rel. Norvell v. Credit Bureau of Albuquerque,
Inc., 

, ¶¶ 4-6, 

, 

 (concluding that the state is
the proper party litigant while the attorney general acts as the state’s legal
representative in the case), cited with approval in Mid-Atl. Toyota Distrib., 704 F.2d at
130-31 (indicating that the several state statutes there at issue in the underlying parens
patriae damage actions “allocate[] to the attorney[s] general power and authority to
represent the jurisdiction[s] and [their] interests in [enforcement] litigation” (emphasis
added)).

{24} Labels aside, however, in the context of state-interest civil litigation, a state
attorney general is commonly thought of as “assum[ing] the role of a litigant [in]
represent[ing] what he perceives to be the interest of the state and the public at large.”
Manchin v. Browning, 

 (W. Va. 1982), overruled on other
grounds by State ex rel. Discover Fin. Servs., Inc. v. Nibert, 

(2013)). Even if the litigation status of a state attorney general in a civil lawsuit is limited
to a representative capacity only, it is reasonable to say that the relationship thus
created between the attorney general and the state lacks the constraints of the
traditional attorney-client relationship given the attorney general’s “virtually full control
over litigation in the name of the[] state and considerable independence from other
institutions in state government.” Nolette, supra, at 10. This broad authority is clearly
provided for in our statute. See § 8-5-2(B). In sum, no matter how the OAG’s litigation
role is styled, it is that office—to the exclusion of all other executive departments and
agencies—that controls the substance and conduct of such state-interest civil lawsuits.

{25} As Petitioners correctly argue, however, the discovery questions presented in
this case are not ultimately dependent on the party status of the State’s executive
agencies. We view the non-party status of the various state agencies as being more
clear cut and broadly referenced but not denominated as party plaintiffs in the State’s
amended complaint. The agencies identified in the State’s pleading have no direct stake
in the underlying lawsuit and can claim at most a tangential financial or fiscal interest in
the outcome. We see no sound basis in law or policy to treat such ancillary executive
agencies as party plaintiffs for discovery or any other purposes. These agencies, as part
of a larger entity of our state government, find themselves implicated in litigation not of
their own making and in a forum in which their strategic choices are controlled by the
Attorney General. See State Attorneys General Powers and Responsibilities, supra, at
48 (observing that a state attorney general’s authority to represent the state in state-interest civil litigation is designed to “protect[] the interests of the state as a whole as a
unitary client, rather than any one of the many potential agency manifestations of the
state”).

{26} Instead, the issues ultimately hinge on whether the OAG, acting as counsel for
the State, had “the practical ability to obtain” the non-party agency documents and
information sought by Petitioners. See United Nuclear, 

, ¶ 58. Guided
by the discovery standards this Court reiterated in United Nuclear and in light of our
ensuing analyses rejecting the core statutory and constitutional issues raised in the
petition, we conclude that the OAG had the practical ability to obtain the requested
agency documents and information.

3.      Statutory analysis

{27} In defining the duties of the OAG, our Legislature has plainly set out a broad
range of action that is available to that office in both civil and criminal litigation. See § 8-
5-2. Central to our analysis here is Section 8-5-2(B), which authorizes the Attorney
General to “prosecute and defend . . . all actions and proceedings, civil or criminal, in
which the state may be a party or interested when, in his judgment, the interest of the
state requires such action or when requested to do so by the governor” (emphasis
added). 3

{28} This Court has given proper effect to the broad and expansive terms of the
above-quoted provision, affording the Attorney General wide “discretion in determining
when the public interest requires him to bring a civil action on behalf of the state,” State
ex rel. Bingaman v. Valley Sav. & Loan Ass’n, 

, ¶ 6, 

, 

, and, more important for present purposes, recognizing the virtually unfettered
control given the Attorney General—as the “chief law officer of the state”—over the
conduct of all litigation matters the Attorney General chooses to bring. See Lyle v. Luna,

, 

, 

 (internal quotation marks and
citation omitted). Indeed, this Court’s opinion in Luna signaled that, “[i]n the absence of
explicit legislative expression to the contrary, the attorney general possesses entire

3It bears mentioning that the defined powers of state attorneys general vary widely across the country in
both substance and level of specificity. See State Attorneys General Powers and Responsibilities (the
2018 NAAG edition), supra, 92-93 & n.4; see also NAAG, Powers, Duties and Operations of State
Attorneys General, 197-98 (1977) (predecessor of the 2018 NAAG edition) (recognizing New Mexico’s
prior compilations of Section 8-5-2(B) and NMSA 1978, Section 8-5-3 (1933) as specific among
counterpart statutes nationwide). See State Attorneys General Powers and Responsibilities 84 (Lynn M.
Ross ed., 1990) (printing the full text of Section 8-5-2(A)-(C), (I), (J) and highlighting its specificity). By
contrast, for example, the Ohio counterpart statute to Section 8-5-2 does “not clearly define[] . . . [t]he
exact extent of the Attorney General’s litigation authority,” a circumstance which has caused the Sixth
Circuit Court of Appeals to “decline to wade into the debate regarding the parameters of [that] authority.”
N.E. Ohio Coalition for Homeless & Serv. Emps. Int’l Union, Loc. 1199 v. Blackwell, 

(6th Cir. 2006).
dominion over every suit instituted by him in his official capacity whether there is a
relator or not.” Id. ¶ 23 (emphasis added) (internal quotation marks and citation
omitted); accord Florida ex rel. Shevin v. Exxon Corp., 

 (5th Cir.
1976) (“There is and has been no doubt that the legislature may deprive the attorney
general of specific powers; but in the absence of such legislative action, he typically
may exercise all such authority as the public interest requires.”).

{29} The State’s briefing to this Court—advanced by its Attorney General— readily
acknowledges the Attorney General’s complete and “exclusive control” over the
litigation process in cases commenced by the Attorney General on behalf of the State.
In asserting that the Attorney General has the authority to bring actions on behalf of the
state but none of the responsibility to produce the discovery materials that support any
given set of claims, the State insists that the breadth of the Attorney General’s litigation
authority does not “extend[] to the power to compel party discovery from non-party
executive agencies.” In so arguing, the State makes much of the absence from the
statutory scheme of an express delegation to the Attorney General of that precise
authority. In the process, the State through its Attorney General advances a position
that in the end erodes the Attorney General’s statutory grant of authority, a bewildering
litigation stance considering the aligned interests of the two entities in the context of this
lawsuit.

{30} On the merits, and as discussed below, the State’s argument is too restrictive
and violates the “ancient” and “well-acknowledged” predicate-act canon of statutory
construction, which provides that “whenever a power is given by a statute, everything
necessary to making it effectual or requisite to attaining the end is implied.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 30, at 192-
93 (2012) (quoting James Kent, Commentaries on American Law *464 (Charles M.
Barnes ed., 13th ed. 1884)); see also 2B Norman J. Singer & J.D. Shambie Singer,
Statutes & Statutory Construction, § 55:4, at 457-58 (7th ed. 2012) (stating, under the
rubric of the “implied powers” rule, that “[a] statute which confers powers or duties in
general terms includes by implication all powers and duties incidental and necessary to
make the legislation effective”).

{31} As a practical matter, it stands to reason that the broad and exclusive statutory
powers conferred upon our Attorney General to initiate and take charge of state-interest
civil litigation would necessarily encompass the authority, if not the obligation, to
produce responsive documents and information created or possessed by non-party
executive agencies. This pragmatic assumption finds support in the reasoning provided
by the Connecticut Supreme Court in distinct but related circumstances:

       The Attorney General’s responsibility is not [directed] to serving or
       representing the particular interests of State agencies . . . , but embraces
       serving or representing the broader interests of the State. . . . It seems to
       us that if the Attorney General is to have the unqualified role of chief legal
       officer of the State, he or she must be able to direct the legal affairs of the
       State and its agencies. Only in this way will the Attorney General properly
       serve the State and the public interest.
Conn. Comm’n of Special Revenue v. Conn. Freedom of Info. Comm’n, 

 (Conn. 1978) (emphasis added).

{32} Significantly, the import of the passage quoted above goes beyond mere
pragmatism and has itself recently been identified as an independent basis to compel a
state attorney general to obtain and produce documents from non-party, sibling
agencies. See In re Generic Pharms. Pricing Antitrust Litig., 

, 358
(E.D. Pa. Oct. 20, 2023) (order) (relying on portions of Conn. Comm’n of Special
Revenue, 

, also quoted herein, to conclude that under Connecticut
law, the “broad grant” of statutory powers to the state attorney general, including the
“general supervision over all legal matters in which the state is an interested party,”
defeats “the argument that in the prosecution of an action on behalf of the State of
Connecticut, the [Attorney General] cannot obtain documents from state agencies”
(internal quotation marks omitted)).

{33} This same conclusion obtains when we approach the issue from a different
perspective. We refer to the aforementioned predicate-act canon of construction, one
long recognized in substance, if not in name, in New Mexico. See State ex rel. Otto v.
Field, 

, ¶ 64, 

, 

 (“In the construction of
Constitutions, as well as of statutes, it has often been held that the powers necessary to
the exercise of a power clearly granted will be implied.” (internal quotation marks and
citation omitted)); see also Order Granting Petition for Writ of Mandamus, State ex rel.
Madrid v. Turner, No. 26,035 at 2 (N.M. Dec. 14, 1999) (nonprecedential) (“As a
constitutional office within broad statutory powers, including all powers reasonably and
necessarily implied therefrom, the Attorney General has the responsibility and the
power to represent the interests of the State and its officials in all litigation before state
and federal courts, and to manage and control said litigation, unless otherwise provided
by law.” (emphasis added)).

{34} Our reliance on this interpretative canon as a basis to authorize the Attorney
General to obtain and produce discovery materials from other executive agencies
constitutes a reasonably necessary measure in the circumstances of this case. After all,
such an approach dovetails with the OAG’s mandatory pre-litigation duty to assess or
confirm that a sufficient factual basis exists for believing that there is “good ground to
support” a particular cause of action. See Rule 1-011(A) NMRA; Kropelnicki v. Siegel,

 (2d Cir. 2002) (recognizing that a pleading violates Rule 11 of the
Federal Rules of Civil Procedure where, among other criteria, “after reasonable inquiry,
a competent attorney could not form a reasonable belief that the pleading is well
grounded in fact” (emphasis added)). As the Supreme Court of Kentucky said in similar
circumstances,

       The power to institute actions must include the ability to inspect and
       review documents and information relative to a determination of whether a
       good faith belief exists in order to bring legal action. The power granted by
       [Kentucky’s information-sharing] statute is not limited to that which is
       expressly conferred but also includes that which is necessary to
       accomplish the things which are expressly authorized.
Strong v. Chandler, 

 (Ky. 2002) (citation omitted).

{35} And assuming the OAG has the practical ability to obtain and review agency
materials to fairly evaluate the merits of a case in its early stages, as it most assuredly
does, then logic and fair play likewise dictate that the OAG would have at its disposal
that same capability when it comes to providing meaningful discovery to an adversary in
a pending case.

{36} Given the laudable degree of specificity built into the provisions of our Section 8-
5-2 and the exclusive management and control accorded the Attorney General in the
conduct of state-interest civil litigation, there can be little question that the implication to
be drawn here—that the Attorney General has the authority to access, review, and
produce state agency documents and information—is “a necessary, not a conjectural or
argumentative one.” Scalia and Garner, supra at 193 (footnote, internal quotation
marks, and citation omitted).

{37} At bottom, nothing in the plain terms of Section 8-5-2 or our caselaw’s reading of
those provisions provides support for the State’s discovery objection. Nor, as we show
next, does the State fare better on the constitutional side of its argument.

4.     Constitutional analysis

{38} The State’s argument that giving the Attorney General discovery control over
state agencies would allow the Governor to interfere with the Attorney General’s
authority under Section 8-5-2(B) lacks merit because it is based on conflicting premises.
While some have supported the notion that allowing the Attorney General to control
documents held by independent state agencies could give the Governor or those
agencies undue influence over enforcement actions, see, e.g., Am. Express Co., 1:10-
cv-04496 at 6, this argument falls apart under closer examination. The State’s “virtual
veto” theory claims that involving the OAG in discovery targeting non-party executive
agencies would jeopardize state-interest civil litigation brought by the Attorney General
by encouraging interference from the Governor or the agencies themselves. Yet, at the
same time, the State concedes that the OAG has exclusive authority over initiating
state-interest civil litigation, which directly contradicts the State’s claim that such
authority could be undermined by gubernatorial or agency actions.

{39} Instructive on this score is Illinois ex rel. Raoul v. Monsanto Co., an unreported
but well-reasoned memorandum opinion and order that addressed intra-executive
branch separation of powers considerations arising under the Illinois Constitution, which
requires “the Illinois Attorney General’s Office [to] operate[] independently of the rest of
the executive branch, including state agencies (who are controlled by the Illinois
Governor).” 1:22-cv-05339 at 4 (N.D. Ill. June 20, 2023), ECF No. 76. The federal
district court presiding in Raoul, id. at 6, rejected as “speculative and generally
unpersuasive” a nearly identical “‘virtual veto’” argument advanced therein by the state.
The court reasoned that it was not clear how granting the defendant’s motion to compel
        would (or could) result in the Illinois Governor preventing or obstructing
        future lawsuits by the Illinois Attorney General. To the extent the Governor
        does not want the Attorney General to bring a particular action, nothing we
        decide today affects his ability (or rather, his inability) to block such action.
        . . . Without more explanation, the Court is unpersuaded that granting [the
        defendant’s discovery] motion will stir up constitutional problems between
        the two state leaders, either now or in the future.

Id. at 6-7 (noting the absence of any “Illinois caselaw stating that non-party state
agencies cannot be subject to party discovery in cases brought by the Illinois Attorney
General under its parens patriae authority”).

{40} As was true in Raoul, the State’s broad assertions here of a potential intra-Executive Branch conflict fail to carry the day. See In re Generic Pharms., 699 F. Supp.
3d at 357 & n.11 (holding in multi-district litigation that “[g]eneral arguments regarding a
possible conflict between the [Attorney General] and the governor of a [s]tate with
authority over state agencies are not sufficient” to raise a constitutional question
adequate to derail agency document discovery (citing Raoul, 1:22-cv-05339 at 7
(addressing separation of power arguments))).

{41} One remaining aspect of the State’s virtual veto argument deserves mention: its
reflection of a jaundiced judicial view of Executive Branch integrity, a view that ignores
the separation of powers-based presumption that at any given time “the executive is
acting rationally and in good faith.” State ex rel. Beeler, Schad & Diamond, P.C. v.
Burlington Coat Factory Warehouse Corp., 

 (Ill. App. Ct. 2006); see
Delahanty v. Commonwealth, 

 (Ky. Ct. App. 2018) (recognizing
“the presumption that public officials, when following statutorily established procedures,
are proceeding in good faith and in a proper exercise of the power and discretion
reposed in them,” and indicating that “specific allegations of overreaching or otherwise
impermissible conduct or motives should be addressed as part of particular cases, not
through a wholesale attack on the entire statutory scheme” (text only) 4 (citation
omitted)). We have every confidence that our colleagues in the Executive Branch will
help facilitate our shared interest in full and fair discovery in cases of all stripes.

{42} We need to emphasize that none of this—neither our statutory nor constitutional
analyses—leaves the Governor or an affected executive agency without recourse to a
potential legal remedy with the aid of the OAG or its appointed designee if a particular
request for agency discovery is deemed to be unreasonable or burdensome, or in the
case of the Governor alone, to implicate a valid claim of privilege. See, e.g., Republican
Party of N.M. v. N.M. Tax’n & Revenue Dep’t, 

, 

(announcing that “our jurisprudence supports a limited form of executive privilege
derived from the constitution,” one “not available to the entire executive branch . . . but
instead reserved to the . . . Governor”). All we address here is the State’s notion that a

4“(Text only)” indicates the omission of nonessential punctuation marks—including internal quotation
marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text
otherwise unchanged.
blanket statutory or constitutional ban on the use of party discovery with respect to non-party executive agencies is somehow required in state-interest civil litigation brought by
the Attorney General. And all we hold is that no such ban is warranted or appropriate
under New Mexico law.

{43} We also stress that our holding today should not be construed as granting any
defendant the broad license to disrupt the vital work of already busy state agencies with
what otherwise would be viewed as oppressive or harassing discovery tactics. A
defendant’s entitlement to party discovery in appropriate circumstances should not be
used as an instrument to delay and frustrate the progress of litigation with, say for
example, a flood of discovery requests for documents that vary in content and form from
the manner and means by which the documents were collected and stored by a given
agency. See Rule 1-034(B)(1) (providing in part that, “[u]nless the parties otherwise
agree, or the court otherwise orders, . . . a party who produces documents for
[discovery] inspection shall produce them as they are kept in the usual course of
business”); see and compare NMSA 1978, § 14-2-8(B) (2009) (absolving public bodies
of the responsibility to “create a public record” in response to a records request made
under New Mexico’s Inspection of Public Records Act). Though not necessary to
resolve this appeal, we note that it is within the district court’s wide discretion in
managing pre-trial discovery to prevent in the first instance any such abuses from
tainting the discovery process.

III.   CONCLUSION

{44} For the foregoing reasons, we grant the petition for writ of superintending control
and order the district court to comply with the holding and rationale of this opinion in
resolving the parties’ discovery dispute. We hereby vacate our previously issued stay,
allowing the underlying litigation to proceed, consistent with this opinion, in the district
court.

{45}   IT IS SO ORDERED.

DAVID K. THOMSON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice