Stormo v. City of Sioux Falls

ERIC STORMO, Plaintiff, v. CITY OF SIOUX FALLS, R. SHAWN TORNOW, DAVE MUNSON,MIKE HUETHER, PAT KNEIP, DOUG BARTHEL, JOHN DOE, Defendants.

4:12-CV-04057-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

October 15, 2015

ORDER DENYING MOTION TO STRIKE, GRANTING MOTION TO AMEND SCHEDULING ORDER, AND OVERRULING OBJECTIONS

INTRODUCTION

Plaintiff, Eric Stormo, filed this pro se lawsuit naming the City of Sioux Falls, R. Shawn Tornow, Dave Munson, Mike Huether, Pat Kneip, Doug Barthel, and John Doe as defendants. Stormo objects to Magistrate Judge Veronica Duffy's order (Docket 96) granting in part and denying in part his motion to deem requests for admissions admitted. Docket 101. Stormo again moves to strike discovery responses for defense attorney's failure to sign the responses. Docket 97. He also moves to amend the scheduling order. Docket 99. For the following reasons, Stormo's objections are overruled, his motion to strike is denied, and his motion to amend the scheduling order is granted.

FACTUAL BACKGROUND

Stormo filed his complaint in April 2012. Docket 1. He alleged defendants violated his federal civil rights from 2005 to the present because of his status as a landowner and landlord. Id. The court granted defendants summary judgment in part and denied it in part. Docket 27. After Stormo amended his complaint, he served defendants with various discovery requests. Stormo disagreed with defendants' responses to his discovery requests and moved to compel discovery. The court granted in part and denied in part the motion to compel. Docket 60.

Stormo requested production of documents from defendants. Docket 30. Request number 9 was for "any and all investigative reports, including internal investigation of complaints resulting from any of the incidents named in Plaintiff's complaint." Docket 30-5 at 4. Defendants objected to this request as overbroad and asserted a claim of privilege. Docket 31. The court sustained the objection, ordered defendants to produce the requested documents insofar as they related to incidents involving Stormo or his property, and ordered defendants to prepare a privilege index regarding any withheld or redacted information. Docket 60.

Mr. Stormo's request number 21 sought the following information:

All records documenting access and the results of access to NCIC, NICS, CJIS, LEO, N-Dix or other nationally, regionally or locally operated law enforcement data repositories where the inquiry was directed at Plaintiff, Plaintiff's wife or Plainitff's parents, their property, their finances, their businesses or their vehicles by any City of Sioux Falls law enforcement officer, official, employee,agent, contractor, subcontractor or other party acting at the request of or on behalf of one of the previously named parties.

Docket 30-5 at 6. The district court ordered defendants to produce the unprivileged documents and disclose to plaintiff a privilege log that identified the documents defendants claimed were privileged. Docket 60. Defendants did as the court requested, producing an initial privilege log (see Docket 75-1), then an amended privilege log (see docket 78-3), and finally a second amended privilege log. See docket 91-1.

Stormo filed another motion to compel. Docket 75. The district court referred this motion to Magistrate Judge Duffy. Docket 77. Magistrate Judge Duffy granted in part and denied in part Stormo's motion to compel. Docket 96. Addressing the second amended privilege log, Magistrate Judge Duffy denied Stormo's motion to compel as to documents BATES stamped 1-22 because they were protected by attorney client privilege and defendants did not waive this privilege. Id. at 5-12. Additionally, the motion to compel was denied as to documents 23-42 because they were confidential under SDCL 16-19-99. Id. at 12-13. The motion to compel was granted as to documents 42-94. Id. at 13-15. The motion was denied as moot as to documents 95-103 because they were unrelated to the current proceedings. Id. at 15-16. Stormo objects to the denial of his motion as to documents 1-42 but accepts that documents 95-103 are unrelated. Docket 101.

DISCUSSION

Stormo objects to Magistrate Judge Duffy's denial of his motion to compel, moves to strike defendants' discovery responses, and moves to amend the scheduling order.

A. Objections To Magistrate Judge Duffy's Denial of Stormo's Motion To Compel

In order for this court to reconsider Magistrate Judge Duffy's ruling, Stormo must show the "order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). He raises eight objections:

1) The order erroneously accepts argument as fact contrary to the rules of evidence.

2) The order did not require defendants to prove each of the elements required to receive the privileges claimed by defendants.

3) The order neglected to consider whether privilege with respect to city attorney Sean Tornow was waived due to Tornow's repeated participation in the crimes and frauds central to this case.

4) The order misapprehended the intended purpose of the inadvertent disclosure rule.

5) The order erroneously equated a state requirement for confidentiality with a federal evidentiary privilege.

6) The order misapprehends the scope of documents which lose confidentiality in a public disciplinary case.

7) The summary judgment order was given import beyond that allowed by law.

8) Defendants should have been required to waive any advice of counsel defense to protect the documents at issue.

Docket 101 at 2.

1. Objection 1 - The Order Erroneously Accepts Argument as Fact Contrary To the Rules of Evidence.

Stormo claims defendants have the burden to establish a factual basis for asserting attorney-client privilege. The Eighth Circuit Court of Appeals has found that a defendant "met its burden of providing a factual basis for asserting the privileges when it produced a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel." Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997). This is exactly what defendants provided. Docket 91-1. The court also held that "offering speculation based on a sampling of the descriptions of documents listed in the privilege log" and offering "no evidence to contradict [defendant's] evidence that the questioned documents were prepared by [defendant's] counsel while acting in a legal capacity" was insufficient to challenge the privilege claim. Id. Objection 1 is overruled.

2. Objection 2 - The Order Did Not Require Defendants To Prove Each of the Elements Required to Receive the Privileges Claimed By Defendants.

Stormo claims defendants have not shown that the recipients of the documents were clients. The privilege log shows the recipients were legal assistants and city employees and agencies. Docket 91-1. These are all either clients or people attached to the attorney and covered by privilege.

Stormo also objects, questioning whether "the advice was for the benefit of the attorney's employer or was in support of a prosecution." Docket 101 at 6.Stormo claims both that "if the advice is in support of a prosecution, the information is not confidential," id., and "[i]f the communication is not prosecutorial but rather offers advice in support of the employer then there is no prosecutorial immunity, and the advice is not privileged." Id. at 7. It is not clear what Stormo means by this, but Magistrate Judge Duffy's finding that privilege applies is not "clearly erroneous or contrary to law."

Finally, in Objection 2, Stormo claims defendants did not show that the documents remained confidential. The privilege log shows the recipients and their positions. Docket 91-1. None of the recipients breaks confidentiality. Stormo argues that certain situations, such as co-mingling confidential and non-confidential documents, show the lack of intent to keep documents confidential. He does not, however, provide evidence that defendants comingled documents. Objection 2 is overruled.

3. Objection 3 - The Order Neglected To Consider Whether Privilege with Respect To City Attorney Sean Tornow Was Waived Due To Tornow's Repeated Participation in the Crimes and Frauds Central To This Case.

Stormo objects to Magistrate Judge Duffy's finding that defendants' attorneys did not waive privilege because they participated in "crimes and frauds." Docket 101 at 12. "[T]he party urging discovery must present facts warranting a reasonable belief that the deponent obtained legal advice to further a crime or fraud." Kilpatrick v. King, 499 F.3d 759, 766 (8th Cir. 2007) (citing In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642 (8th Cir. 2001)). Stormo has not met this burden. Magistrate Judge Duffy's failure to addressthe crime-fraud exception to privilege was not "clearly erroneous or contrary to law." Objection 3 is overruled.

4. Objection 4 - The Order Misapprehended the Intended Purpose of the Inadvertent Disclosure Rule.

Stormo objects to Magistrate Judge Duffy's application of the inadvertent disclosure rule. Docket 101 at 16. He argues, "Defendants failed to take the most minimal threshold steps to preserve the privilege such as filing an appropriate privilege log and filing the required affidavits." Id. Stormo's objection is invalid; defendants ultimately filed the necessary documents. Docket 91-1. Magistrate Judge Duffy's application of the rule and reasoning was sound and not "clearly erroneous or contrary to law." Objection 4 is overruled.

5. Objection 5 - The Order Erroneously Equated a State Requirement For Confidentiality with a Federal Evidentiary Privilege.

Stormo raises numerous issues in this objection. First, he objects to Magistrate Judge Duffy's use of state rather than federal law. Docket 101 at 17. This is simply not true. The order states, "[F]ederal law, not state law, supplies the rule of decision. Since federal law supplies the rule of decision, state law...