G&I IX OIC, LLC v. Cnty. of Hennepin, 27-CV-19-06587

CourtTax Court of Minnesota
Writing for the CourtWENDY S. TIEN, CHIEF JUDGE
PartiesG&I IX OIC, LLC, Petitioner, v. County of Hennepin, Respondent.
Docket Number27-CV-19-06587
Decision Date01 November 2021

G&I IX OIC, LLC, Petitioner,

County of Hennepin, Respondent.

No. 27-CV-19-06587

Tax Court of Minnesota, Regular Division, Hennepin County

November 1, 2021

This matter came before the Honorable Wendy S. Tien, Chief Judge of the Minnesota Tax Court, on the motion in limine of Petitioner G&I IX OIC, LLC.

Judy S. Engel, Thomas R. Wilhelmy, and Gauri Samant, Fredrikson & Byron, P.A., represent petitioner G&I IX OIC, LLC.

Rebecca L. Holschuh and Jeffrey M. Wojciechowski, Assistant County Attorneys, represent respondent Hennepin County.


G&I IX OIC, LLC moves this court: (1) to have the County's proposed trial appraisal excluded from evidence in its entirety on the ground that the evidence is not relevant to any issue to be decided by the Court; (2) to exclude certain pages, as set forth in G&I's amended motion, based on (a) Minn. R. Evid. 702 and 705 and Minn. R. Civ. P. 26.01(b)(2); and (b) failure to produce data in discovery and because such data is nonpublic under Minn. Stat. § 13.51; (3) as an alternative to request (2), authorizing amendment of the County's expert report to allow for removal of references to nonpublic data; and (4) to exclude as confidential portions of proposed exhibits C1, D1, E1, and G1 for failure to produce in discovery and on data practices grounds. The County opposes the motion.


The court, upon all the files, records, and proceedings herein, now makes the following:


1. Petitioner's amended motion in limine is denied without prejudice as to paragraphs 1 and 2(a) for the reasons set forth on the record.[1]

2. Petitioner's amended motion in limine is denied without prejudice as to paragraph 4.

3. Petitioner's amended motion in limine is granted as to paragraphs 2(b) and 3.

4. Within ten days of this Order, either party may request a modification of the Scheduling Order so the County's expert witness may prepare an expert report that does not require the County to disseminate nonpublic data, and a stay of the Notice of Trial to continue the trial date. Before requesting a modification of the Scheduling Order, the parties must meet and confer to attempt to reach agreement on a suitable extension of time.

5. Petitioner's motion for sanctions is denied. IT IS SO ORDERED.




I. Background

On April 24, 2019, G&I IX OIC, LLC ("G&I") filed a property tax petition as to property taxes payable in 2019, for the subject property (PID #27-029-24-11-0160) located at 900 Second Avenue South in Minneapolis, Minnesota (the "Oracle Building").[2]

The Scheduling Order in this case, filed on May 11, 2020, established a discovery cutoff date of March 15, 2021, [3] and an expert report exchange date of April 12, 2021.[4] It also required parties to object to the competency of an expert or to the admissibility of any portion of an expert report by June 1, 2021.[5] On June 1, 2021, G&I filed objections to the County's expert report as well as a motion in limine seeking to exclude the County's expert report in its entirety on relevance grounds, [6] and in the alternative, to exclude specific pages of the report on foundational grounds as well as based on the Minnesota Government Data Practices Act (the "Data Practices Act" or the "DPA").[7]

On September 1, 2021, G&I amended its motion in limine[8] and filed a supplemental memorandum.[9] Regarding the DPA, G&I contends the County failed to produce certain data in discovery, and that such data is nonpublic within the meaning of the DPA, and its admission into


evidence would violate the DPA.[10] On that basis, G&I seeks to exclude specific pages of the County's expert report.[11] G&I also seeks to exclude the confidential portions of the County's ACE sheets and assessor sale verification notes on the grounds those proposed exhibits were not previously disclosed in discovery and constitute nonpublic assessor's data within the meaning of the DPA.[12]

The County filed a response on September 8, 2021, [13] and a hearing on G&I's motion was held on September 15, 2021.[14] G&I supplemented the record on September 20, 2021 to provide the court a copy of the County's expert report.[15]

II. Governing Law

A. Motions in Limine

The purpose of motions in limine is to prevent "injection[s] into trial of matters which are irrelevant, inadmissible and prejudicial." Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d 414, 418 (Minn.App. 2003) (quoting Black's Law Dictionary 1013 (6th ed. 1991)). Motions in limine are typically brought at the beginning of trial, but may also be brought during


trial when evidentiary issues are anticipated by the parties. See, e.g., State v. Smallwood, 594 N.W.2d 144, 149 (Minn. 1999).

The Minnesota Rules of Civil Procedure and Evidence will govern tax court trials "where practicable." Minn. Stat. § 271.06, subd. 7 (2020). This court is authorized to adopt, by administrative rules, procedures for the conduct of its trials. Id.; see also Minn. R. ch. 8610 (2019) (the "Tax Court Rules"). The Tax Court Rules do not include any specific rules governing discovery or the admission of expert testimony. Gale v. Cnty. of Hennepin, 609 N.W.2d 887, 890-91 (Minn. 2000) (addressing application of Rules to expert testimony in this court and stating that the "Rules of Civil Procedure concerning discovery of expert testimony provide guidance as to what disclosures were required by the county in this case").

The Minnesota Rules of Civil Procedure provide for pretrial discovery in civil matters. See generally Minn. R. Civ. P. 26; Gale, 609 N.W.2d at 890-91. Expert disclosures are governed by Rule 26.01(b)(1)-(2), which requires the disclosure to an adverse party of the identity of all witnesses expected to provide expert testimony at trial, and a written report, which must contain, among other items:

(A) a complete statement of all opinions the witness will express and the basis and reasons for them
(B) the facts or data considered by the witness in forming them
(C) any exhibits that will be used to summarize or support them[.]

Minn. R. Civ. P. 26.01(b)(2)(A)-(C). Pretrial discovery of facts known and opinions held by experts, however, is limited. Minn. R. Civ. P. 26.02(e)(1)(A).

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion


Id. Discovery of documents and other written things, in other words, may ordinarily not be had without leave of court. See Minn. R. Civ. P. 26.02(e)(1)(B) (authorizing discovery by other means upon motion). "[A]ssessor's records, including market data, are discoverable" in property tax litigation. See Gale, 609 N.W.2d at 890 (citing Minn. Stat. § 278.05, subd. 3 (1998)).

Rule 37 generally authorizes the court to enforce the discovery rules and prevent prejudice to a party or the proceeding by the failure of a party to comply with discovery requirements. In the case of a party that disobeys an order to provide or permit discovery, available sanctions include denying the noncomplying party the ability to introduce the requested information at trial. See Minn. R. Civ. P. 37.02(b)(2). In the case of a party that fails to provide evidence or identify a witness as required by Rule 26.01 or 26.05, "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Minn. R. Civ. P. 37.03(a).

"The objective of [the] rules of discovery is to encourage the exchange of relevant information by the parties prior to trial and to discourage and prevent unjust surprise and prejudice at trial, especially where the testimony of expert witnesses is concerned." Gale, 609 N.W.2d at 891 (citing Shymanski v. Nash, 312 Minn. 304, 307, 251 N.W.2d 854, 856 (1977); Am. Standard Ins. Co. v. Le, 551 N.W.2d 923, 925 n.3 (Minn. 1996) (observing that "'trial by ambush' fell out of favor in the courts of this state over 50 years ago")).

B. Third-party interests: The Data Practices Act

The DPA "regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities." Energy Policy Advocates v. Ellison, 963 N.W.2d 485, 490 (Minn.App. 2021) (quoting KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 788 (Minn. 2011) (quotation omitted)). The purpose of the DPA is "to reconcile the rights of data subjects to protect personal information from indiscriminate disclosure with the right of the public


to know what the government is doing." Id. The DPA "also attempts to balance these competing rights within a context of effective government operation." Montgomery Ward & Co., Inc. v. Cnty. of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990) (quoting Donald A. Gemberling & Gary A. Weissman, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act-From "A" to "Z", 8 Wm. Mitchell. L. Rev. 573, 575 (1982)). In undertaking this balancing, in the property tax context, "the state or its subdivision should be as concerned as a taxpayer that property and taxpayers be fairly and equitably treated." Id. at 308.

In property valuation cases, a petitioner does not have "unfettered access" to all information about other property to which the County had access when completing a property assessment. CANPAC Owner LLC v. Cnty. of Hennepin, No. 27-CV-15-07909 et al., 2017 WL 5617315, at *3 (Minn. T.C. Sept. 22, 2017) (citing EOP-Nicollet Mall, L.L.C. v. Cnty. of Hennepin, Nos. 29743 & 28793, 2005 WL 3107971, at *3 (Minn. T.C. Nov. 16, 2005)). Specifically,...

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