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Benson v. Fischer

United States District Court, D. Minnesota

August 6, 2019

Michael D. Benson, Plaintiff,
Ron Fischer, Group Supervisor/Officer of the Day, et al., Defendants.

          Michael D. Benson, (pro se Plaintiff); and

          Ralph John Detrick, Assistant Attorney General, (for Defendants).


          Tony N. Leung United States Magistrate Judge

         This 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).


         Under 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.”).

         Defendants 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.)

         Although 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.[1] (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.)

         “It 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.

         Plaintiff 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.

         The 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.

         At 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 this Court.

         To 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 deadlines accordingly.

         In sum, 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 denied.


         Plaintiff 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 motion.

         A. Legal Standard

         With 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)).

         B. Proposed First Amendment Claim

         1. Futility

         Among 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)).[2] “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 Civil Procedure.”).

         “To 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 the ...

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