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Kushner v. Buhta

United States District Court, D. Minnesota

September 25, 2017

Jordan S. Kushner, Plaintiff,
Lieutenant Troy Buhta, Officer Ashlee Lange, Officer Kathleen Temple, Sergeant Kristin Tyra, Linda Lokensgard, Eric W. Kaler, Defendants

          Jordan S. Kushner and Peter J. Nickitas, Law Office of Jordan S. Kushner, for Plaintiff.

          Daniel J. Herber and Timothy J. Pramas, Office of the General Counsel, University of Minnesota, for Defendant.

          George H. Norris, Minneapolis City Attorney, City Attorney's Office, for Third-Party City of Minneapolis


          SUSAN RICHARD NELSON, United States District Court Judge

         Before the Court is the Objection [Doc. No. 98] filed by Third-Party City of Minneapolis (“the City”) to Magistrate Judge Steven E. Rau's July 17, 2017 Amended Text-Only Order (“the Order”) [Doc. No. 97]. In the Order, the magistrate judge granted in part and denied in part Plaintiff Jordan S. Kushner's Motion to Compel Compliance with a Subpoena Duces Tecum [Doc. No. 45]. The City objects to the portion of the ruling that granted Plaintiff's motion. (See City's Obj. at 11.) Based on the Court's review of the parties' arguments and the record, the Court overrules the City's Objection in part and sustains the Objection in part, and affirms the Order, as modified.

         I. BACKGROUND

         In this civil rights lawsuit, Kushner alleges that Defendants, employees of the University of Minnesota (“the University”), violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. (See Compl. ¶¶ 99-106 [Doc. No. 1].) He asserts that on November 3, 2015, while attending a lecture at the University's Law School, he used his cell phone to record speeches made by protestors, whose subsequent removal from the event by Defendants he also recorded. (Id. ¶¶ 25-26; 33; 43.) Kushner alleges that Defendants demanded that he stop video recording, leave the hall, and relinquish his phone. (Id. ¶¶ 44-54.) While in the process of voluntarily complying, Kushner asserts, Defendants pulled and grabbed him, using additional physical force prior to handcuffing him. (Id. ¶¶ 58-68.) Kushner further alleges that before being booked into the Hennepin County Jail, Defendant Tyra issued Kushner a “Trespass Warning, ” prohibiting him from entering any buildings on the University's West Bank Campus for one year from the date of the incident, with no mechanism for administrative appeal. (Id. ¶ 69.)

         Kushner asserts that he was jailed and falsely charged by the City with trespass, disorderly conduct, and obstruction of the legal process. (Id. ¶ 77.) Approximately five months after the November 3, 2015 event, the City ultimately dismissed the charges against him. (Id. ¶ 86.) Even so, Kushner alleges, the Trespass Warning remained in effect. (Id. ¶ 89.)

         In August 2016, Kushner filed this civil-rights lawsuit against the University under 28 U.S.C. § 1983, alleging federal violations implicating free speech and assembly, seizure and arrest, excessive force, equal protection, due process, and conspiracy, as well as state common law claims of false imprisonment, assault, battery, defamation, malicious prosecution, and negligence. (See id. ¶¶ 99-112.)

         During the discovery period, Kushner served a subpoena duces tecum on the City, seeking seven categories of information.[1] Kushner contends that the City's attempted prosecution of him “is a significant aspect of the damages resulting from Defendants' wrongful arrest and initiation of criminal proceedings.” (Kushner Decl. ¶ 4.) In addition, Kushner believes that the City's documents may also contain relevant statements and information concerning the prosecution's motivations or considerations with respect to the criminal charges. (Pl.'s Mem. Supp. Mot. to Compel at 4 [Doc. No. 47].) He considers the requested information relevant to his lawsuit against the University and asserts that he is otherwise unable to obtain the information. (Kushner Decl. ¶ 5.)

         In response to the subpoena, the City contends that it initially produced nearly 600 pages of material. (City's Mem. in Opp'n to Pl.'s Mot. to Compel at 1 [Doc. No. 54].) The City also provided a 14-page privilege log, created in January, identifying withheld documents for which it claimed work product protection. (See Jan. Priv. Log, Ex. 2 to Kushner Decl. [Doc. No. 46-2].) Information in the log was limited to the “Id. Number” assigned to each document, the type of privilege asserted (“Work-Product” is listed for all of the documents), the date of the document, and the name of the sender and recipient(s). (See id.) The January log did not otherwise describe any of the documents, nor did it distinguish between the type of work product. (See id.) Kushner states that the withheld documents are primarily emails or other documents sent within the City Attorney's Office. (Pl.'s Mem. Supp. Mot. to Compel at 4.)

         Following oral argument on Kushner's underlying Motion to Compel on April 27, 2017, Magistrate Judge Rau issued a text-only order requiring the City to provide a revised privilege log. (Apr. 28, 2017 Text-Only Order [Doc. No. 63].) Subsequently, the City provided a revised log dated May 25, 2017 [Doc. No. 75], after which both parties submitted supplemental letter briefs [Doc. Nos. 83 & 84]. On June 15, 2017, the City provided yet another revised privilege log [Doc. No. 83-2].[2] On June 30, 2017, Magistrate Judge Rau ordered that the City provide certain withheld documents, identified by number, for in camera review. (June 30, 2017 Text-Only Order [Doc. No. 92].)

         In an amended text-only order on July 17, 2017-the Order on appeal here-Magistrate Judge Rau granted in part and denied in part Kushner's Motion to Compel. (July 17, 2017 Text-Only Order.) He found that the City had not met its burden to establish a privilege that precluded the production of Documents 6, 62, 71, 106, 181, 266, 303, 310, 365, 427, 451, 453, 544, 582, 589, 652, 681, 712, 777-779, 796, 837, 845, 851, 1146, and 1159. (Id.) He therefore ordered the production of these documents within seven days. (Id.) However, Magistrate Judge Rau also determined that the City had met its burden and properly invoked the work product protection with respect to 20 other documents. (Id.) He thus granted the City's motion in part as to these documents. (Id.)

         The City filed its Objections on July 21, 2017. It argues that the magistrate judge's ruling is contrary to law, as the emails and text messages in question “are documents prepared as part of the Kushner criminal prosecution by the City Attorney's Office or in anticipation of the current litigation.” (City's Obj. at 7.) As such, the City argues that the documents are “work product under the case law and the plain language of Federal Rule of Civil Procedure 26.” (Id. at 5-6.) It contends that Magistrate Judge Rau applied the wrong legal standard by not considering whether Kushner had articulated a substantial need for the discovery and the inability to obtain the substantial equivalent of the materials elsewhere. ...

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