Danielson v. Huether, 4:18-CV-04039-RAL

• Decision Date: 21 January 2021
• Docket Number: 4:18-CV-04039-RAL
• Court: U.S. District Court — District of South Dakota
• Parties: BRUCE DANIELSON, Plaintiff, v. MIKE HUETHER, Defendant.

BRUCE DANIELSON, Plaintiff, v. MIKE HUETHER, Defendant.

4:18-CV-04039-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

January 21, 2021

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DENYING MOTIONS TO STRIKE

Plaintiff Bruce Danielson, proceeding pro se, sued the State of South Dakota, South Dakota's then Attorney General Marty Jackley, the City of Sioux Falls (City), the City's former Mayor Mike Huether, and two City employees. Doc. 1. Danielson alleged that the Defendants violated 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act, and state law. Doc. 1. Among other things, Danielson claimed that Huether assaulted him during an April 14, 2015 public City meeting in the Carnegie Town Hall and attempted to intimidate or provoke him after four other City Council meetings. In December 2018, this Court entered a lengthy opinion dismissing most of Danielson's complaint.¹ The only claims to survive were against Huether—a First Amendment retaliation claim based on Huether's alleged assault and intimidation ofDanielson after the four City Council meetings and claims under state law concerning this same conduct. Doc. 22.

Huether has now moved for summary judgment, Doc. 90, and Danielson has submitted a brief and other filings opposing the motion, including ten motions to strike affidavits, Docs. 107-116, 118-20, 123. Two of the elements Danielson must show to succeed on his First Amendment retaliation claim are that Huether's alleged assault was motivated at least in part by Danielson's protected activity and that Huether's encounters with him after the City Council meetings would chill the speech of a person of ordinary firmness. This Court grants Huether's motion for summary judgment because no reasonable jury could find in Danielson's favor on either of these elements.

I. Motions to Strike

Huether filed affidavits from ten individuals to support his motion for summary judgment: himself, James Moore, Jerry Jongeling, Kenny Anderson Jr., Lorie Hogstad, Dean Karsky, Tracy Turbak, Sue Quanbeck Etten, Jon Klemme, and Heather Hitterdal. Docs. 93, 94, 96-103. Danielson moved to strike all ten of these affidavits. Docs. 107-116. He argues that the affidavits are untimely and beyond the scope of disclosure and that admitting them would violate the best evidence rule and spoliation principles. He also makes arguments specific to certain affidavits.

A. The affidavits were not untimely or beyond the scope of disclosure.

Citing Rule 37(c) of the Federal Rules of Civil Procedure, Danielson argues that all the affidavits must be struck because Huether did not disclose them until after discovery ended. Broadly speaking, Rule 26 of the Federal Rules of Civil Procedure requires initial disclosure of witnesses and documents that the disclosing party "may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii). Rule 26(e) imposes a duty to supplement or correct these initial disclosures if they end up being incorrect or incomplete and "the additional or correctiveinformation has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1)(A). Rule 37(c) gives teeth to Rule 26. It authorizes sanctions, including exclusion of evidence or witnesses left out of required disclosures, unless the failure to disclose "was substantially justified or is harmless."² Fed. R. Civ. P. 37(c)(1).

Contrary to Danielson's belief, the affidavits used to support Huether's motion for summary judgment did not need to be disclosed before the discovery deadline. Burton v. Blue Cross & Blue Shield of Kansas City, No. 13-2099-JTM, 2014 WL 3767683, at *2 (D. Kan. July 31, 2014) ("The plaintiff has presented no authority suggesting the requirement to timely disclose documents under Rule 26 somehow precludes a party from offering subsequently-obtained affidavits in support of a summary judgment motion."); Dupee v. Klaff's, Inc., 462 F. Supp. 2d 233, 235 n.2 (D. Conn. 2006) ("[A]ffidavits appearing to have been created for summary judgment purposes are not required to be disclosed during discovery (as they likely did not exist then) . . . ."). Indeed, all but one of the affidavits Danielson moves to strike were created after discovery ended, and therefore could not have been disclosed before the deadline.

Danielson also argues that most of the affidavits should be struck because they "exceed the scope" of or are "broader than" the witness disclosures Huether provided. Danielson filed Huether's Rule 26 disclosures but does not explain how each witness's affidavit exceeds the scope of these disclosures. Rule 26(a) requires parties to disclose "each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). The rule does notrequire parties "to provide a detailed narrative of all the facts known to each witness; a brief description of the general topics of each witness' [sic] knowledge will suffice." Tift v. Ball, No. C07-0276RSM, 2007 WL 3047228, at *1 (W.D. Wash. Oct. 18, 2007) (citation omitted). Huether listed eight of the affiants—himself, Anderson, Hogstad, Karsky, Turbak, Quanbeck Etten, Klemme, and Hitterdahl—in his Rule 26 disclosures and briefly described the information these individuals possessed.³ This Court has reviewed the disclosures and the affidavits and finds that the affidavits do not exceed the scope of the brief descriptions Rule 26 required Huether to provide.

Danielson also argues that admitting the affidavits would prejudice him because he did not have an opportunity to cross examine the affiants. Despite having ample time for discovery, Danielson deposed no witnesses in this case and did not serve any written discovery beyond four subpoenas he issued in November and December of 2019. Doc. 106 at 2-3, 6. Although Danielson requested more time for discovery, this Court denied this request because he could not show that he had been diligent in trying to meet the discovery deadline. Doc. 106. Except for Jongeling and Moore, Danielson could have deposed all the affiants before discovery closed. His failure to do so is not a basis for striking the affidavits.

B. The best evidence rule does not apply, and Danielson is not entitled to sanctions for spoliation.

Anderson, Hogstad, Karsky, Turbak, Quanbeck Etten, and Hitterdal swore in affidavits that they did not see Huether strike Danielson during the April 14, 2015 meeting. Huether swore inhis affidavit that he did not strike Danielson. Danielson argues that these affidavits must be struck under the best evidence rule and spoliation principles because "the Defendants destroyed all of the videos from security or hidden cameras relating to the April 14th, 2015 incident."

Danielson's argument under the best evidence rule is a nonstarter. The best evidence rule only applies when the contents of a writing, recording, or photograph are sought to be proved. Fed. R. Evid. 1002 ("An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise."); Jackson v. Crews, 873 F.2d 1105, 1110 (8th Cir. 1989). It does not apply when witnesses testify about their personal knowledge of an event, even if a recording of the event happens to exist. United States v. McKenzie, 505 F. App'x 843, 846 (11th Cir. 2013) (per curiam); Waterloo Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648-49 (7th Cir. 2006); United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that the best evidence rule has "no application at all" when a tape recording of a conversation exists but a party seeks to call a participant in or observer of the conversation to testify about the conversation). The affidavits of Huether, Anderson, Hogstad, Karsky, Turbak, Quanbeck Etten, and Hitterdal were based on their first-hand knowledge of the April 14, 2015 meeting, not on their knowledge of any allegedly destroyed video. Because their affidavits were not based on the content of any video, the best evidence rule does not apply. That leaves Danielson's spoliation argument.

The only law Danielson cites for this argument is Blazer v. Gall, 1:16-CV-01046-KES, 2019 WL 3494785 (D.S.D. Aug. 1, 2019), a case in which this Court applied Federal Rule of Civil Procedure 37(e) to determine whether a party should be sanctioned for destroying electronically-stored video recordings. Rule 37(e) establishes sanctions courts may impose if electronically stored information (ESI) is lost, and describes the findings needed to justify these sanctions. Fed.R. Civ. P. 37(e). Possible sanctions under the rule include a presumption that the lost information was unfavorable to the offending party and a jury instruction to the same effect. Id.

However, this Court cannot impose any sanctions under Rule 37(e) unless Danielson first shows that (1) ESI was lost; (2) the ESI "should have been preserved in the anticipation or conduct of litigation"; (3) that the party responsible for preserving the ESI failed to take reasonable steps to do so; and (4) that the ESI cannot be "restored or replaced through additional discovery." Id.; see also Blazer, 2019 WL 3494785, at *3 (listing these predicate elements of Rule 37(e)); Borum v. Brentwood Vill., LLC, 332 F.R.D. 38, 43 (D.D.C. 2019) (stating that the party alleging spoliation under Rule 37(e) bears the burden of proof). Courts apply the preponderance-of-the-evidence standard to motions for sanctions under Rule 37(e). Ellis v. Hobbs Police Dep't, No. 17-1011 KWR/GBW, 2020 WL 1041688, at *5 (D.N.M. Mar. 4, 2020) (applying preponderance of evidence standard to motion for spoliation sanctions under Rule 37(e)); Putscher v. Smith's Food & Drug Ctrs., Inc., No. 2:13-CV-1509-GMN-VCF, 2014 WL 2835315, at *6-7 (D. Nev. June 20, 2014) (applying preponderance of the...