United States District Court, D. Minnesota
RANDOLPH PENTEL, KIM POVOLNY, MICHELLE POVOLNY, MICHAEL POVOLNY, Plaintiffs,
MICHAEL SHEPARD AND CITY OF MENDOTA HEIGHTS, Defendants.
E. Brasel United States District Judge
sued Michael Shepard and the City of Mendota Heights under
the Driver's Privacy Protection Act (“DPPA”),
18 U.S.C. § 2721 et seq., and the Minnesota
Government Data Practices Act (“MGDPA”), Minn.
Stat. § 13.01 et seq., claiming that Shepard, a
police officer, wrongfully accessed their driver's
license information. Plaintiffs served the Minnesota
Department of Public Safety (“DPS”) with a
subpoena for records, and moved to compel DPS and the City to
search a DPS database and produce responsive documents,
seeking information about searches by Shepard of people other
than plaintiffs who may be potential class members. United
States Magistrate Judge Tony N. Leung denied the motion to compel
[ECF No. 90 (the “Order”)], and Plaintiffs
objected. [ECF No. 92.] The order also determined that each
party should bear its own attorney fees and costs. (Order at
16.) Plaintiffs object. [ECF No. 92.] For the reasons set
forth below, the Court overrules Plaintiffs' objections
to Judge Leung's order.
Plaintiffs brought this putative class
action against Defendants Michael Shepard and the City of
Mendota Heights for alleged violations of the DPPA and the
MGDPA. During discovery in the lawsuit, Plaintiffs
subpoenaed non-party DPS for records showing Shepard's
searches of the Law Enforcement Message Switch
(“LEMS”) database. [See ECF No. 64, Ex.
1 (“2019 Subpoena”).] Among other things,
Plaintiffs sought LEMS audit returns for any individual
Shepard may have searched by name or license plate number
from May 25, 2014 to November 3, 2017. (See id.) At
the time Plaintiffs served the 2019 Subpoena, the City had
agreed to assist Plaintiffs with determining which of the
LEMS accesses could be attributed to Shepard. [See
ECF No. 37-8.]
did not have any such agreement, and it timely objected to
the subpoena on the grounds that compliance would be unduly
burdensome. [See ECF No. 59-3.] Then, once the City
learned of the estimated volume of LEMS audit data that it
would be required to sort through to determine Shepard's
use of LEMS, it withdrew its offer of assistance.
[See ECF No. 37-11.] Plaintiffs filed a motion,
asking this Court to order DPS to produce to the City LEMS
accesses by City personnel, to order the City to determine
which of those accesses were made by Shepard, to order the
City to identify for Plaintiffs the persons whose records
Shepard had accessed, and finally to order the City to
“inform the victims that they were accessed by Shepard
without a permissible purpose and that a lawsuit has been
commenced to enforce their rights.” [ECF Nos. 33, 35 at
Leung denied all of the requested relief and determined that
each party should bear its own attorney fees and expenses.
Plaintiffs timely objected. [See ECF No. 92.]
Standard of Review
standard of review applicable to an appeal of a magistrate
judge's order on nondispositive matters is
‘extremely deferential.'” Bubble Pony,
Inc. v. Facepunch Studios Ltd, No. 15-CV-601 (DSD/FLN),
2016 WL 7130910, at *1 (D. Minn. Dec. 7, 2016) (quoting
Reko v. Creative Promotions, Inc., 70 F.Supp.2d
1005, 1007 (D. Minn. 1999)). A magistrate judge's ruling
on nondispositive pretrial matters may be reversed only if it
is “clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A); see Fed. R. Civ. P.
72(a); D. Minn. L.R. 72.2(a)(3). An order is “clearly
erroneous ‘when, after reviewing the entire record, a
court is left with the definite and firm conviction that a
mistake has been committed.'” Knutson v. Blue
Cross & Blue Shield of Minn., 254 F.R.D. 553, 556
(D. Minn. 2008) (quoting Thorne v. Wyeth, No.
06-CV-3123, 2007 WL 1455989, at * 1 (D.Minn. May 15, 2007)).
It is “'contrary to law' when it ‘fails
to apply or misapplies relevant statutes, case law or rules
of procedure.'” Id. (quoting
Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins.
Co., 592 F.Supp.2d 1087, 1093 (N.D. Iowa 2008)).
may move to compel a response from a non-party who fails to
comply with a document subpoena. See Fed. R. Civ. P.
45(d)(2)(B)(i). The party “must take reasonable steps
to avoid imposing undue burden or expense on a person subject
to the subpoena” and “[t]he court for the
district where compliance is required must enforce this
duty.” Fed.R.Civ.P. 45(d)(1). But courts will not
enforce subpoenas “where no need is shown, or
compliance would be unduly burdensome, or where harm to the
person from whom discovery is sought outweighs the need of
the person seeking discovery of the information.”
Deluxe Fin. Servs., LLC v. Shaw, No. 16-CV-3065
(JRT/HB), 2017 WL 7369890, at *4 (D. Minn. Feb. 13, 2017)
(quoting Miscellaneous Docket Matter No. 1 v.
Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925
(8th Cir. 1999)).
may also move to compel a response from a party who fails to
answer an interrogatory served under Rule 33 or fails to
produce a document requested under Rule 34. See Fed.
R. Civ. P. 37(a)(3)(B). Once the party requesting discovery
establishes relevance, the party resisting discovery
“must show specifically how the discovery is not
relevant or is overly broad, burdensome, or
oppressive.” Regents of the Univ. of Minn. v.
AT&T Mobility LLC, No. 14-CV-4666 (JRT/TNL), 2016 WL
7972908, at *3 (D. Minn. Dec. 13, 2016).
seek to do both-that is, to compel non-party DPS to produce
LEMS audit records, and to compel the City, a defendant, to
assist the Plaintiffs with sorting through those records.
They contend that they cannot identify potential class
members without assistance from DPS and the City. Judge
Leung's order denied both requests. On appeal to this
Court, the Plaintiffs now argue that the Order (1) is clearly
erroneous because the burden to non-party DPS does not
outweigh the probative value of the information sought; (2)
is clearly erroneous because it did not address the
City's obligations and because the burden to the City
does not outweigh the probative value of the information
sought; (3) is contrary to law because Plaintiffs could
solicit participation in their suit with a court order; (4)
is contrary to law because a motion to compel discovery is a
proper vehicle for ordering the City to send
breach-notification letters; and (5) is clearly erroneous in
its determination on attorney fees. This Court finds none of
these arguments persuasive, and sees no clear error in Judge