United States District Court, D. Minnesota
Michael D. Benson, Plaintiff,
Ron Fischer, Group Supervisor/Officer of the Day, et al., Defendants.
Michael D. Benson, (pro se Plaintiff); and
John Detrick, Assistant Attorney General, (for Defendants).
N. Leung United States Magistrate Judge
matter comes before the Court on Defendants' Motion for a
Protective Order (ECF No. 68) and Plaintiff's Motion for
Leave to Amend Complaint (ECF No. 78).
MOTION FOR PROTECTIVE ORDER
Rule 26, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case .
. . .” Fed.R.Civ.P. 26(b)(1). “Information within
this scope of discovery need not be admissible in evidence to
be discoverable.” Id. Rule 26 further provides
that the Court may “issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense” upon a showing of good cause.
Fed.R.Civ.P. 26(c)(1). Among other things, the Court may
foreclose entirely the discovery sought or narrow the scope
of such discovery. Fed.R.Civ.P. 26(c)(1)(A), (D).
“[Rule] 26(c) confers broad discretion on the trial
court to decide when a protective order is appropriate and
what degree of protection is required. The requirement that
good cause be shown, however, still must be met by the party
seeking the protective order.” May Coating
Techs., Inc. v. Ill. Tool Works, 157 F.R.D. 55, 57
(D. Minn. 1994) (citation omitted); see Shukh v.
Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013)
(“[T]he movants bears the burden of demonstrating the
necessity of a protective order.”).
move for a protective order, contending that swaths of
generically categorized information-data on individuals other
than Plaintiff, personnel data, and security data-are
protected under the Minnesota Government Data Practices Act
(“MGDPA”), Minn. Stat. § 13.01 et
seq. Relying on the MGDPA, Defendants seek to limit
Plaintiff's access to these types of data and, in some
instances, prohibit disclosure entirely. For example, in
their proposed Protective Order, Defendants seek to limit
Plaintiff's access to “information of which he is
the data subject” and to “information on data
subjects other than himself to the extent that
individual's information is contained within a document
that otherwise references Plaintiff and the individual's
identity and information would have been known by
Plaintiff.” (Proposed Protective Order ¶ 4, ECF
No. 72.) Defendants also propose that
security information, . . . which may include MSOP security
video, shall not be provided to Plaintiff during discovery,
provided to Plaintiff during a deposition (including if it is
used as an exhibit or otherwise), or provided to Plaintiff if
it is filed with the Court; however, Defendants may allow
Plaintiff to view MSOP security video relevant to this case
during a deposition or trial, and if any such video is
discoverable or filed with the Court by Defendants,
Defendants shall give Plaintiff reasonable access to view the
MSOP security video upon a request by Plaintiff.
(Proposed Protective Order ¶ 8.)
given an opportunity to respond to Defendants' motion,
Plaintiff did not file a response. Defendants' memorandum
and the meet-and-confer statement reflect, however, that
Plaintiff objects to the proposed Protective Order to the
extent that it limits his access to these categories of
information. (See generally Defs.' Mem. in Supp.
at 2-3, ECF No. 70; ECF No. 71.) In addition, Plaintiff has
expressed frustration with Defendants' responses or lack
thereof to his discovery requests, including their reliance
on the MGDPA. (See, e.g., ECF No. 67 at 2
(“The Defendants responded that the [MGDPA] precludes
them from answering the interrogatories.”); Mot. for
Leave to Amend Compl. at 2 (same), ECF No. 78.)
is axiomatic that discovery is a procedural matter governed
in federal court by the Federal Rules of Civil Procedure, not
by state rules governing access to information.”
Scheffler v. Molin, No. 11-cv-3279 (JNE/JJK), 2012
WL 3292894, at *4 (D. Minn. Aug. 10, 2012); accord Her v.
Paulos, No. 11-cv-808 (PAM/TNL), 2012 WL 6634777, at *5
(D. Minn. Dec. 20, 2012); see also Unity Healthcare, Inc.
v. Cty. of Hennepin, No. 14-cv-114 (JNE/JJK), 2015 WL
12977022, at *5 (D. Minn. Sept. 16, 2015) (“As judges
in this district have concluded in the context of the
[MGDPA], Federal Rule of Civil Procedure 26(b) governs the
scope of discovery in federal court.”). “[T]he
MGDPA cannot be used as a basis to thwart or otherwise impede
the discovery process in a federal lawsuit.”
Sagehorn v. Indep. Sch. Dist. No. 728, No.
14-cv-1930 (JRT/BRT), 2015 U.S. Dist. LEXIS 192518, at *9 (D.
Minn. Feb. 3, 2015). The MGDPA does not “define what
information is discoverable in a federal lawsuit.”
Scheffler, 2012 WL 3292894, at *4; accord R.S.
ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, No.
12-cv-588 (MJD/LIB), 2013 WL 12149246, at *6 (D. Minn. Mar.
20, 2013). Nor does its “classification of public and
private data create some independent evidentiary
privilege.” Scheffler, 2012 WL 3292894, at *4;
accord Her, 2012 WL 6634777, at *5.
is civilly committed to the Minnesota Sex Offender Program
(“MSOP”). (Am. Compl. ¶¶ 1, 6, ECF No.
5.) Defendants are state employees involved with the program.
(See, e.g., Am. Compl. ¶¶ 2, 7, 8, ECF No.
5.) The Court is mindful that there may be serious concerns
regarding the production of certain sensitive information in
this litigation and compelling reasons for limiting the scope
of discovery. And, the Court may utilize its broad authority
to manage discovery and issue protective orders to address
these concerns. See Fed. R. Civ. P. 26(b), (c);
May Coating Techs., 157 F.R.D. at 57.
problem is that neither party has put the requisite
information before this Court so that the Court may weigh
considerations of relevancy, proportionality, and any other
competing interests. Defendants seek to restrict blanketly
access to categories of information. Defendants' request
contains little to no context other than that there are
unique concerns regarding dissemination of information to a
secure treatment facility like MSOP. In this regard,
Defendants' contention that Plaintiff has not indicated
how these categories of information are relevant to this
litigation is uncompelling. The same is true for
Defendants' contention that Plaintiff has not indicated
how his access to these categories of information outweighs
any harm to the interests in maintaining the confidentiality
of such information. It is Defendants' burden to show
that a protective order is appropriate under the
circumstances. Shukh, 295 F.R.D. at 237; May
Coating Techs., 157 F.R.D. at 57. Defendants are
essentially asking this Court to issue a broad protective
order in a vacuum, and to countenance the withholding of
discovery as they see fit.
bottom, it appears the parties have a number of unresolved
discovery issues. The Court is not in the habit of inviting
future motion practice and strongly encourages the parties to
work together to resolve these issues without Court
involvement. Nevertheless, should a party believe that Court
involvement is necessary, any discovery dispute must be
presented to the Court through a proper motion in accordance
with the Federal Rules of Civil Procedure and Local Rules of
assist the parties in moving towards resolution, the Court
will enter a Protective Order consistent with the form
protective order available on the District's website. The
parties are reminded that information designated as
Confidential under the Protective Order may only be used in
this action and may not be revealed to anyone else unless
expressly permitted by the Protective Order. And, under no
circumstances may Plaintiff reveal information designated as
Confidential to another individual civilly committed to MSOP.
The Court will also issue an Amended Pretrial Scheduling
Order so that the parties may have time to work through any
discovery issues, providing limited extensions of time to
complete discovery served prior to the July 1, 2019 deadline
and file nondispositive motions. (See Pretrial Sch.
Order at 2, ECF No. 63.) The Court will also adjust other
Defendant' motion is granted in part, and the Court will
enter a Protective Order consistent with the District's
form protective order. Defendants' motion is otherwise
MOTION FOR LEAVE TO AMEND
moves for leave to amend the Amended Complaint to add a First
Amendment claim purportedly based on a “symbolic
protest” theory. Plaintiff also seeks to add additional
defendants and factual allegations. Defendants oppose the
the exception of amendments as a matter of course, the
Federal Rules of Civil Procedure permit a party to
“amend its pleadings only with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). The Rules further provide that leave shall be
freely given “when justice so requires.”
Id. There is, however, “no absolute right to
amend” and a finding of undue delay, bad faith,
dilatory motive, undue prejudice to the non-moving party, or
futility may be grounds to deny a motion to amend. Doe v.
Cassel, 403 F.3d 986, 990-91 (8th Cir. 2005).
“Fundamentally, ‘the grant or denial of an
opportunity to amend is within the discretion of the District
Court.'” Ash v. Anderson Merchandisers,
LLC, 799 F.3d 957, 963 (8th Cir. 2015) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Proposed First Amendment Claim
other grounds, Defendants oppose Plaintiff's proposed
First Amendment claim on grounds that it is futile.
“Futility is a well-recognized basis for denying a
proposed amendment.” ecoNugenics, Inc. v. Bioenergy
Life Sci., Inc., 355 F.Supp.3d 785, 793 (D. Minn. 2019)
(citing Foman, 371 U.S. at 182); see, e.g.,
Lansing v. Wells Fargo Bank, N.A., 894 F.3d 967,
973-74 (8th Cir. 2018) (“[A] district court properly
denies leave when a proposed amendment would be
futile.”); Munro v. Lucy Activewear, Inc., 899
F.3d 585, 589 (8th Cir. 2018) (“However, futility is a
valid basis for denying leave to amend.” (quotation
omitted)). “An amendment is futile if the
amended claim could not withstand a motion to dismiss under
Rule 12(b)(6).” Hillesheim v. Myron's Cards
& Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018)
(quotation omitted); accord Cornelia I. Crowell GST Tr.
v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)
(“[W]hen the court denies leave on the basis of
futility, it means the district court has reached the legal
conclusion that the amended complaint could not withstand a
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
withstand a Rule 12(b)(6) motion, a complaint must contain
sufficient factual allegations to ‘state a claim to
relief that is plausible on its face.'”
Smithrud v. City of St. Paul, 746 F.3d 391, 397 (8th
Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “[A]lthough a
complaint need not contain ‘detailed factual
allegations,' it must contain facts with enough
specificity ‘to raise a right to relief above the
speculative level.'” U.S. ex rel. Raynor v.
Nat'l Rural Utils. Coop. Fin., Corp., 690 F.3d 951,
955 (8th Cir. 2012) (quoting Twombly, 550 U.S. at
555). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Similarly, “[t]hreadbare recitals of