Stormo v. City of Sioux Falls, 4:12-CV-04057-KES
| Decision Date | 31 August 2015 |
| Docket Number | 4:12-CV-04057-KES |
| Court | U.S. District Court — District of South Dakota |
| Parties | ERIC STORMO, Plaintiff, v. CITY OF SIOUX FALLS, R. SHAWN TORNOW, DAVE MUNSON, MIKE HUETHER, PAT KNEIP, DOUG BARTHEL, JOHN DOE, Defendants. |
ORDER ON PLAINTIFF'S MOTION TO COMPEL
INTRODUCTION
This matter is before the court on plaintiff Eric Stormo's second amended complaint alleging claims against defendants under various theories. See Docket No. 34. Following the district court's resolution of an earlier motion to compel by Mr. Stormo (see Docket No. 60 resolving motion at Docket No. 30), Mr. Stormo now files another motion to compel defendants to produce certain documents as to which defendants claim privilege. See Docket No. 75. Defendants resist Mr. Stormo's motion. See Docket No. 78. Mr. Stormo's motion was referred to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A) and the October 16, 2014 standing order of the Honorable Karen E. Schreier, district judge.
FACTS
In order to understand what claims are before the court, it is necessary to understand the procedural history of this case. Mr. Stormo filed his original complaint with the court on April 2, 2012 asserting a wide range of claims against defendants spanning a long period of time. See Docket No. 1. Defendants rather quickly filed a motion for summary judgment in their favor on April 13, 2012, arguing that Mr. Stormo's claims were barred by the applicable statute of limitations and that Mr. Stormo had failed to give notice of the suit to local governmental entities. See Docket No. 16.1
While briefing was still ongoing on the summary judgment motion and before the court had ruled on that motion, Mr. Stormo filed a motion to amend his complaint. See Docket No. 26. This motion went unopposed by defendants.
The district court granted in part and denied in part defendants' summary judgment motion. See Docket No. 27. The court found that the statute of limitations had run on all but a handful of Mr. Stormo's claims. Id. Specifically, as to Mr. Stormo's constitutional/civil rights claims, the court granted summary judgment on all claims except one: the claim that defendants or their agents engaged in a warrantless search and seizure of Mr. Stormo's personal property in violation of Mr. Stormo's constitutionalrights when they entered his property on April 2 or 3, 2009 and seized a lift (a piece of construction equipment). Id. at p. 7.
As to Mr. Stormo's state law claims asserted under the court's pendent jurisdiction, the court likewise found that most of these claims were barred by the statute of limitations. Id. at p. 8. The only claims to survive were Mr. Stormo's claims that defendants trespassed upon his property and converted his property on April 2 or 3, 2009 when they seized his lift. Id. at p. 9. Also, Mr. Stormo's claim that defendants engaged in a civil conspiracy to commit the aforementioned trespass and conversion survived. Id. at p. 10. The court rejected defendants' lack-of-notice argument as to Mr. Stormo's one remaining civil rights claim, and found a material issue of fact existed on the question of notice as to the remaining pendent state law claims. Id. at pp. 11-12.
The court granted Mr. Stormo's motion to amend his complaint—to the extent the amended complaint was consistent with the court's ruling on defendants' summary judgment motion. Id. at pp. 12-13. Thereafter, Mr. Stormo moved to amend his complaint a second time. See Docket No. 29. Again, defendants never responded to the motion. Therefore, the court granted Mr. Stormo's motion and he subsequently filed a second amended complaint. See Docket No. 34.
Mr. Stormo's second amended complaint is a 71-page tome that, despite the district court's summary judgment ruling, continues to assert facts and claims that fall outside the statute of limitations period. See Docket No. 34. Itis clear Mr. Stormo made no attempt to incorporate the court's summary judgment ruling into the substance of his complaint, but rather kept his original complaint largely intact and simply expanded it to add new facts, allegations and claims. Compare Docket No. 1 with Docket No. 34. Generally, Mr. Stormo's claims consist of allegations that defendants have damaged him through engaging in a pattern or practice of conduct directed at Mr. Stormo on the basis of his status as a landlord and landowner. See Docket No. 34.
Mr. Stormo served defendants with various discovery requests, followed by a motion to compel filed with the court when Mr. Stormo disagreed with some of defendants' responses to his discovery requests. The district court resolved that motion to compel by granting some portions of it and denying other portions. See Docket No. 60.
Mr. Stormo's request for the production of documents number 9 asked for "any and all investigative reports, including internal investigation of complaints resulting from any of the incidents named in Plaintiff's complaint." Id. at p. 4. The defendants objected as overbroad and asserted a claim of privilege. Id. The court sustained the objection, ordered defendants to produce the requested documents insofar as they related to incidents involving Mr. Stormo or his property, and to prepare and provide to Mr. Stormo a privilege index regarding any withheld or redacted information. Id.
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, theirproperty, 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 name [sic] parties.
Id. at p. 7. As to this request, too, the district court ordered defendants to produce documents not privileged, and to prepare a privilege log as to documents defendants claimed were privileged and produce the log to plaintiff. Id.
Defendants did as the court requested, producing an initial privilege log (see Docket No. 75-1), then an amended privilege log (see Docket No. 78-3), and finally a second amended privilege log (see Docket No. 91-1). The second amended privilege log is the log the court addresses since it is the most complete and detailed of the logs produced.
DISCUSSION
The court ordered defendants to produce the withheld documents to the court for in camera inspection. The court has now compared those documents against defendants' second amended privilege log. The following rulings are made:
A. City's Privilege Log Documents 1-22
City documents 1-22 are letters or emails from defendants' current counsel, or from city attorneys or legal assistants in the city attorney's office to various agency employees within the city. These documents either give legal advice from the attorney to the non-lawyer, or they discuss responses the city is making or plans to make to various matters touching on plaintiff's lawsuit orthe underlying city citations that were pending in state court, or they ask for information to provide to plaintiff in one of the two legal forums. Defendants assert these documents are protected by the attorney-client privilege.
Rule 501 of the Federal Rules of Evidence states the following about claims of privilege in federal court actions:
See FED. R. EVID. 501.
Plaintiff bases his claims on 42 U.S.C. § 1983, so jurisdiction in his case is based on the presence of a federal question under 28 U.S.C. § 1331. Therefore, federal law, not state law, supplies the rule of decision. Since federal law supplies the rule of decision, state law does not govern the question of privilege. See FED. R. EVID. 501; Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985). Federal law governs federal claims even if state law claims are asserted in the same action pursuant to the court's supplemental jurisdiction. Mem. Hosp. v. Shadur, 664 F.2d 1058, 1061 n.3 (7th Cir. 1981).
"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege exists for the protection of the client andshields "confidential communications between a client and [his or] her attorney made for the purpose of facilitating the rendition of legal services to the client." United States v. Yielding, 657 F.3d 688, 706-07 (8th Cir. 2011).
Proposed Rule of Evidence 503 was never enacted by Congress, but the Eighth Circuit has said it provides "a useful starting place for an examination of the federal common law of attorney-client privilege." See Id. at 707 (quoting In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 915 (8th Cir. 1997) (internal quotation omitted)). Rule 503 provides in pertinent part as follows:
To continue reading
Request your trial