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Stormo v. City of Sioux Falls

United States District Court, D. South Dakota

August 4, 2014

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

ORDER

KAREN E. SCHREIER, District Judge.

Pending before the court are various matters, including plaintiff's objections to the magistrate judge's order (Docket 37), defendants' motions for sanctions (Dockets 38, 43), plaintiff's motions to compel (Dockets 42, 50), plaintiff's request for hearing (Docket 45), and defendants' motion for protective order (Docket 46). The court will address each pending matter herein.

I. Plaintiff's Objections to Magistrate Judge's Order

Stormo filed a motion to compel on July 23, 2013 (Docket 30), which this court referred to United States Magistrate Judge John E. Simko (Docket 33). On September 11, 2013, Magistrate Judge Simko issued an order granting in part and denying in part Stormo's motion to compel. Docket 36. Stormo has since filed objections to the order, requesting that this court vacate the magistrate judge's decision. Docket 37.

Pursuant to 28 U.S.C. ยง 636(b)(1)(A), this court may reconsider any pretrial matter determined by the magistrate judge "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." Stormo has iterated numerous objections to the magistrate judge's order, most persuasively arguing that the order failed to account for the claims asserted in his second amended complaint. Because the magistrate judge did not take into consideration Stormo's second amended complaint-a filing which Stormo properly requested, to which defendants did not object, and which this court permitted-the court finds that the magistrate judge erred in his review of Stormo's motion to compel. Accordingly, the court vacates the magistrate judge's decision and issues the following rulings[1]:

1. REQUEST: All information required by the rules to be disclosed.

RULING: Objection SUSTAINED. This request is too broad. It fails to limit its reach to matters which cannot be obtained from some other source that is more convenient, less burdensome, or less expensive. See Fed.R.Civ.P. 26(b)(2)(C)(1).

2. REQUEST: Any and all City Documents including laws, statutes, ordinances, police manuals, policy manuals or statements, general and special orders, command or operational memos, advice or directives governing the operation of the City of Sioux Falls, the Sioux Falls Police Department, the Sioux Falls Fire Department which the Defendants plan or intend to use as a Defense.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

3. REQUEST: Any and all Documents, reports, evidence or other information, whether in physical or electronic form or other form, whether held by or accessible to the City of Sioux Falls or any of its subdivisions, officials, employees or agents including the police department which was retained as a result of any of the Notices of Harm or other retention requests filed by Plaintiff, Plaintiff's wife or Plaintiff's parents.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

4. REQUEST: Any and all Documents, reports, or other information, whether in physical or electronic form or other form, whether held by or accessible to the City of Sioux Falls or any of its subdivisions, officials, employees or agents including the police department which contains or makes direct or indirect reference to the case files for the citations and court cases named, or any other repositories referencing the properties, cases, citations, named in the Complaint including those reports or other sources of information used to form the basis for probable cause.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

5. Any and all Documents, reports, or other information, whether in physical or electronic form or other form, whether held by or accessible to the City of Sioux Falls or any of its subdivisions, including the police department containing or making direct or indirect reference to Plaintiff's name, Plaintiff's wife's name, Plaintiff's parents name, or any derivation or pseudonym thereof including but not limited to Social Security Numbers, code-names or other identifiers.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

6. REQUEST: Withdrawn.

7. REQUEST: The results of examinations, analysis or tests on all physical, electronic or other evidence seized from Plaintiff, his properties, Plaintiff's wife, her properties or Plaintiffs parents and Plaintiff's parents properties.

RULING: Objection SUSTAINED. Plaintiff has failed to demonstrate how this information would tend to prove or disprove any of the claims presented in his second amended complaint.

8. REQUEST: Any and all Documents, photographs, recordings, videos, transcripts, summaries, movies, diagrams, chain of custody Documents, memorandum or other things derived from the physical scene or evidence in any of the cases, citations or properties referenced in the Complaint.

RULING: Objection SUSTAINED. This request is too broad. Nonetheless, defendants must produce the requested documents insofar as those documents relate to alleged incidents which involve plaintiff and plaintiff's property.

9. REQUEST: Any and all investigative reports, including internal investigations of complaints resulting from any of the incidents named in Plaintiff's Complaint.

RULING: Objection SUSTAINED. This request is too broad. Nonetheless, defendants must produce the requested documents insofar as those documents relate to alleged incidents which involve plaintiff and plaintiff's property. Defendants must prepare and provide to plaintiff a privilege index regarding any withheld or redacted information.

10. REQUEST: Any and all Documents, photographs, recordings, reports, copies or videos or other records or notes however made of the Plaintiff's property, Plaintiff's image, or Plaintiff's voice, and same for Plaintiff's wife or Plaintiff's parents.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

11. REQUEST: Any and all Documents from the City to the judges or administrative personnel of the 2nd Judicial Circuit and vice-versa documenting or referencing the procedures, parties and practices of the City before the court. The response may be limited to letters addressed to or mentioning Defendants or Code Enforcement or condemnation or Plaintiff, Plaintiff's wife or Plaintiff's parents.

RULING: Objection SUSTAINED. "[T]he procedures, parties and practices of the City before the court" are not relevant to plaintiff's action.

12. REQUEST: Any and all photographs, videos, recordings, reports, transcripts, summaries, copies or other records or notes, however made, of the aural, written, and email communications of Plaintiff, Plaintiff's wife or Plaintiff's parents regardless of the format or method used to create or store the documents.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

13. REQUEST: Copies of any and all records, filings, communications, requests or other means whereby an officer, employee, agent, contractor or subcontractor of the City of Sioux Falls or anyone acting on its request or behalf sought to or did obtain warrants or other authority of any type including Title III wiretaps, national security letters, arrest warrants, wiretaps, surreptitious entry warrants, Title II warrants, subpoenas, or requested the use of any other lawful or unlawful means to obtain or attempt to obtain the contents of any communications, or attempted to or did determine the channels of communications, or attempted to or did access electronic or electronically stored communications, or electronics communications history, or attempted to or did obtain physical positioning information of Plaintiff, Plaintiff's wife or Plaintiff's parents, or attempted to or did intercept aural communications of Plaintiff, Plaintiff's wife or Plaintiff's parents, or attempted to or did obtain access to the property of Plaintiff, Plaintiff's wife or Plaintiff's parents.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

14. REQUEST: Any documentation memorializing instructions, requests, demands, work orders or other requests for action by one City subdivision to another or to an external party and referencing Plaintiff, Plaintiff's property or for Plaintiff's wife or Plaintiff's wife's property or Plaintiff's parents or parent's property.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

15. REQUEST: Any and all written or otherwise recorded statements or notes memorializing statements of witnesses to any of the incidents referred to by case or citation number or property address in Plaintiff's Complaint including those witnesses providing a basis for probable cause.

RULING: Objection SUSTAINED. This request is too broad. Nonetheless, defendants must produce the requested documents insofar as those documents relate to alleged incidents which involve plaintiff and plaintiff's property.

16. REQUEST: Any and all records, reports, Documents, or other writings or things memorializing complaints alleging a constitutional violation, or violation of law or policy against the City including against any police officer, law enforcement officer, prosecuting attorney, Code Enforcement Officer, zoning Code Enforcement Officer, health Code Enforcement Officer, building Code Enforcement Officer, fire code inspector or any persons fulfilling such roles that were filed with or maintained by the City of Sioux Falls complaining of conduct under color of law or as a law enforcement officer or as otherwise acting while in the employment of the City of Sioux Falls or while acting as agent or contractor or subcontractor to same.

RULING: Objection SUSTAINED. This request is too broad. Plaintiff has failed to demonstrate how this information would tend to prove or disprove any of the claims presented in his second amended complaint.

17. REQUEST: Withdrawn.

18. REQUEST: Withdrawn.

19. REQUEST: Withdrawn.

20. REQUEST: Withdrawn.

21. REQUEST: 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 Plaintiff'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 name parties.

RULING: Objection SUSTAINED insofar as the request pertains to documents protected by the work product doctrine or the attorney client privilege. Any documents claimed to be privileged need to be identified on a privilege log that is then disclosed to plaintiff. Defendants must produce all other requested documents related to the claims set forth in plaintiff's unopposed second amended complaint.

22. REQUEST: Any and all records including purchase orders, invoices and other records documenting the acquisition of surreptitious entry aids including but not limited to lock picking equipment, surreptitious entry or locksmithing training, or the acquisition of contractors or subcontractors to perform surreptitious entry.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

23. REQUEST: Any and all records or other evidence documenting or referencing the warranted, unwarranted or surreptitious entry to properties owned or controlled by Plaintiff, Plaintiff's parents or Plaintiff's wife.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

24. Any documentation authorizing, prohibiting or otherwise governing the authorized and unauthorized possession of burglary tools, lock picking or locksmithing equipment or other surreptitious entry equipment by officials, employees, contractors or subcontractors of the City of Sioux Falls.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

25. REQUEST: Any and all documentation authorizing or discussing the circumstances of authorization whereby City of Sioux Falls officials, employees or others acting under color of law from the City authorized to possess and employ lock picking or other surreptitious entry equipment on duty.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

26. REQUEST: All documentation documenting access, and results of access to commercial databases including but not limited to credit bureaus, marketing databases, commercial databases or other subscription data repositories where inquiry was directed at Plaintiff, Plaintiff's wife or Plaintiff's parents or the property owned or controlled by those parties or at financial accounts owned or controlled by those parties or by any other identified associated with those parties by any City of Sioux Falls law enforcement official, official, employee, agent, contractor or subcontractor. Access records include invoices.

RULING: Objection OVERRULED. Based on plaintiff's unopposed second amended complaint, the evidence requested may be relevant to plaintiff's claims.

27. REQUEST: Any and all documentation including purchase orders, invoices, search requests, search results and other records documenting the acquisition of real estate title, mortgage or other real estate searches by any City of Sioux Falls law enforcement officer, official, employee, agent, contractor or subcontractor.

RULING: Objection SUSTAINED. This request is too broad. Plaintiff has failed to demonstrate how this information would tend to prove or disprove any of the claims ...

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