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Pentel v. Shepard

United States District Court, D. Minnesota

November 13, 2019

RANDOLPH PENTEL, KIM POVOLNY, MICHELLE POVOLNY, MICHAEL POVOLNY, Plaintiffs,
v.
MICHAEL SHEPARD AND CITY OF MENDOTA HEIGHTS, Defendants.

          ORDER

          Nancy E. Brasel United States District Judge

         Plaintiffs 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[1] 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.

         BACKGROUND

         Plaintiffs[2] 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.]

         But DPS 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 14-16.]

         Judge 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.]

         DISCUSSION

         I. Standard of Review

         “The 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)).

         II. Analysis

         A party 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)).

         A party 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).

         Plaintiffs 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 Leung's conclusions.

         A. LEMS ...


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