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Ewald v. Royal Norwegian Embassy

United States District Court, Eighth Circuit

November 20, 2013

Ellen S. Ewald, Plaintiff,
Royal Norwegian Embassy, Defendant.

Thomas E. Marshall, Sheila A. Engelmeier, and Susanne J. Fischer, Engelmeier & Umanah, P.A., for Plaintiff.

Daniel G. Wilczek, Joel P. Schroeder, and Sean R. Somermeyer, Faegre Baker Daniels LLP, for Defendant.




This matter is before the Court on Plaintiff Ellen S. Ewald's Objection [Doc. No. 139] to Magistrate Judge Steven E. Rau's October 8, 2013, Order [Doc. No. 129] denying Plaintiff's Motion to Compel Discovery [Doc. No. 106]. After reviewing the Magistrate Judge's Order for clear error, the Court, in large part, affirms the Order. The Court respectfully reverses the Order as it relates to discovery of text messages and voice messages contained on certain mobile devices.


The facts of this employment discrimination case are set forth in this Court's Orders of January 26, 2012 [Doc. No. 18], and October 9, 2012 [Doc. No. 57], which are incorporated by reference. Briefly stated, Plaintiff Ellen Ewald alleges that in July 2008, she applied for the position of Higher Education and Research Officer with Defendant Royal Norwegian Embassy ("the Embassy") at the Honorary Norwegian Consulate General in Minneapolis. (Am. Compl. ¶ 7 [Doc. No. 104].) The Embassy had also posted another Minneapolis position (Innovation and Business Development Officer). (Id.) According to Ewald, the Embassy informed her that the two positions offered the same salary and benefits, that the two positions were considered "parallel positions, " and that the officers in those positions would work as a team. (Id. ¶¶ 10-11.) Based on the Embassy's representations, Ewald alleges that she accepted the offer of employment as Higher Education and Research Officer on October 1, 2008, and relocated from Norway to Minneapolis. (Id. ¶¶ 12-13.) The Embassy subsequently hired Anders Davidson as the Innovation and Business Development Officer. (Id. ¶ 15.)

Ewald contends that the Embassy discriminated against her based on gender, alleging several differences in the Embassy's treatment of her and that of Davidson. (See id. ¶¶ 18, 25, 41, 43-51.) When Ewald expressed her frustration about the alleged unequal treatment, she contends that the Embassy retaliated against her by not providing sufficient administrative assistance and by further ostracizing her. (Id. ¶ 41.) The Embassy informed Ewald that it would not extend her employment contract beyond its October 2011 expiration date. (Id. ¶ 59.) Ewald brought this lawsuit against the Embassy in July 2011. In her Amended Complaint [Doc. No. 104], Ewald asserts eight claims against the Embassy: promissory estoppel, false representation, gender discrimination, reprisal, retaliatory harassment, violation of the Equal Pay Act, violation of the Minnesota Whistleblower Act, and violation of the Norway Working Environment Act.

The matter currently before this Court concerns a discovery dispute between the parties. Relevant to this dispute are two documents that purport to address the parties' discovery obligations. The first document is the Form of Production Agreement ("FOPA"), which was attached to the parties' joint Rule 26(f) Report. (Rule 26(f) Report, Ex. A [Doc. No. 32-1].) According to the Rule 26(f) Report, the FOPA is meant to address "the handling [of] any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." (Rule 26(f) Report at 5 [Doc. No. 32].) The second document is a Diplomatic Note issued by the Royal Norwegian Embassy, which was provided to the Court and Ewald's counsel on December 3, 2012. (See Schroeder Aff., Ex. 4, at 1 [Doc. No. 117-4].) Pursuant to the Diplomatic Note, the Kingdom of Norway provided "a limited waiver of the inviolability of the archives and documents on file with the Consulate General in Minnesota and the Embassy in Washington D.C." for purposes of this litigation. (Id. at 3.)

According to the parties, tens of thousands of pages of documents have been produced in this case, and multiple depositions have been taken in the United States and abroad. (See Pl.'s Mem. of Law in Supp. of Mot. to Compel Disc. ("Pl.'s Supp. Mem."), at 2 [Doc. No. 109]; Def.'s Mem. of Law in Opp'n to Pl.'s Mot. to Compel ("Def.'s Opp'n Mem."), at 7-9 [Doc. No. 116].) However, Ewald contends that the Embassy's discovery responses have been deficient in several respects, and, on July 29, 2013, Ewald brought a Motion to Compel Discovery [Doc. No. 106]. Ewald filed a memorandum [Doc. No. 109] and five affidavits [Doc. Nos. 110-114] in support of her motion. Specifically, Ewald challenged: (1) the Embassy's responses to requests seeking information about communications regarding Ewald's employment and the claims in this litigation (Interrogatory Nos. 3 and 13 and Document Request Nos. 8 and 19); (2) the Embassy's failure to designate the discovery request to which each document in its production corresponds; (3) the Embassy's failure to detail its methods of document preservation, collection, processing, and production (Interrogatory Nos. 21 and 22 and Document Request No. 30); (4) the Embassy's failure to produce certain laptops and mobile phones (Document Request Nos. 27 through 29); (5) the Embassy's failure to produce text messages; (6) the Embassy's redactions of information in its responses; (7) the Embassy's failure to produce information regarding other complaints of discrimination made by females to the Norwegian Foreign Service ("NFS") (Interrogatory No. 18 and Document Request No. 24); and (8) the Embassy's failure to produce information regarding gender equity and bullying at NFS (Interrogatory Nos. 19 and 20 and Document Request No. 25). The Embassy filed a brief [Doc. No. 116] and multiple affidavits [Doc. Nos. 117-120] in opposition to the motion, and Ewald filed a reply brief [Doc. No. 121].

The motion to compel was heard by the Magistrate Judge, who issued an Order on October 8 denying Ewald's motion. (Order dated Oct. 8, 2013 ("Oct. 8 Order"), at 11-12 [Doc. No. 129].) With the exception of the portions of the Magistrate Judge's Order regarding the Embassy's alleged failure to detail its methods of document preservation and production[1] and the Embassy's redaction of documents, [2] Ewald objects to the Magistrate Judge's ruling. (See Pl.'s Obj. to Oct. 8, 2013 Order Denying Pl.'s Mot. to Compel Disc. ("Pl.'s Objs."), at 2 [Doc. No. 139].) In turn, the Embassy argues that Ewald's objections should be overruled. (See Def.'s Resp. to Pl.'s Objs. ("Def.'s Resp."), at 2 [Doc. No. 140].)


A. Standard of Review

Discovery-related motions are nondispositive motions. D. Minn. LR 7.1(b)(4)(A). "The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential." Reko v. Creative Promotions, Inc. , 70 F.Supp.2d 1005, 1007 (D. Minn. 1999). The Court must affirm the order unless it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); accord D. Minn. LR 72.2(a)(3). "A finding is clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948). If the magistrate judge's account of the evidence is plausible in light of the record viewed in its entirety, the reviewing court may not reverse it even though had it been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer City , 470 U.S. 564, 573-74 (1985).

B. Objections

1. Complaints against the NFS and NFS studies

Ewald objects to the Magistrate Judge's denial of her motion as it relates to requests for information about other complaints of discrimination made by females against the Norwegian Foreign Service and information about gender equity and bullying at NFS. (See Pl.'s Objs. at 3 [Doc. No. 139]; Oct. 8 Order at 6-8 [Doc. No. 129].) Specifically, those requests include Interrogatory Nos. 18 through 20:

Identify all other claims of inequitable treatment of females, whether by compensation or otherwise, made to Norwegian Foreign Service since 2002.
Identify the demographics of salary, position, gender, and experience for all positions in the Norwegian Foreign Service.
Identify all studies or analysis prepared which concern gender equity in the compensation of employees in the Norwegian Foreign Service.

(Engelmeier Aff., Ex. G, at 23-24 [Doc. No. 110-7]; see Pl.'s Supp. Mem. at 26-29 [Doc. No. 109].) The relevant requests also include Document Request Nos. 24 and 25:

All complaints of inequitable or discriminatory conduct against females by the Norwegian Foreign Service since 2002.
All gender equity studies or analysis regarding salary, position, or otherwise prepared at the Norwegian ...

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