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Amisi v. Melick

United States District Court, D. South Dakota, Southern Division

June 3, 2016





         This matter is before the court pursuant to plaintiff Holiness Amisi’s complaint pursuant to 42 U.S.C. § 1983 alleging defendants violated her Fourth and Fifth Amendment constitutional rights while acting under color of state law. See Docket No. 1. Ms. Amisi also asserts common law state claims of assault, battery, negligence and negligent infliction of emotional distress pursuant to the court’s supplemental jurisdiction. Id. Defendants have filed a motion to quash or in the alternative for a protective order concerning a subpoena duces tecum which Ms. Amisi served on the South Dakota Highway Patrol. See Docket No. 37. The presiding district judge, the Honorable Lawrence L. Piersol, referred defendants’ motion to this magistrate judge for ruling. See Docket No. 40.


         Ms. Amisi’s complaint stems from an incident which occurred on January 15, 2014, involving Ms. Amisi, a minor at the time, and defendant Tom Melick, an employee of defendant SuTran, Inc. At its most basic, Ms. Amisi alleges Melick used excessive force in breaking up a physical altercation of which Ms. Amisi alleges she was the victim.

         Prior to working for SuTran, Melick was employed by the South Dakota Highway Patrol from 1985 until 2002. In between the Highway Patrol employment and Melick’s employment with SuTran, he held various jobs in sales, repossession, serving process, driving bus, and in security. Dates for these other jobs were not given. SuTran did not request or receive Melick’s personnel file from the Highway Patrol at the time it hired Melick.

         Last fall, Ms. Amisi served a subpoena duces tecum on the Highway Patrol seeking a copy of Melick’s personnel file from his time as an employee of that entity. Defendants objected and filed a motion to quash. See Docket No. 16. The parties reached a mutual agreement concerning that subpoena and defendants’ motion, so the court denied the motion as moot. See Docket No. 24. Defendants agreed to provide Ms. Amisi with a copy of Melick’s application for employment with the Highway Patrol and with the civil and criminal case numbers of some litigation Melick had been involved in. See Docket No. 38-4.

         After receiving this information, Ms. Amisi served defendants with a request for the production of Melick’s Highway Patrol personnel file. See Docket Nos. 38-2, 38-3. Defendants agreed to produce certain (unspecified) records from that file, but not the entirety of the file. See Docket No. 38, p. 2, ¶ 6.

         On April 7, 2016, Ms. Amisi again served the Highway Patrol with a subpoena duces tecum seeking Melick’s personnel file. See Docket No. 38-1. The subpoena seeks “a complete and comprehensive copy of the personnel records of Trooper Tom Melick. The response to this subpoena shall include but is not limited to any reports and records of all internal investigations of the conduct of Trooper Melick, whether on or off duty, any record concerning the discharge of Trooper Melick’s service weapon whether on or off duty, counseling referrals, psychological or psychosocial exams, tests [sic] results or reports, including examiner’s notes, any other disciplinary or human resources investigation materials on file." Id.

         Defendants now move to quash the April 7 subpoena duces tecum. Defendants argue that the information sought is too remote in time from the incident forming the basis of Ms. Amisi’s claims to be relevant. Defendants also argue that the information sought is not reasonably calculated to lead to the discovery of admissible evidence and that the request is overly broad. Defendants also argue Ms. Amisi is estopped from seeking a copy of Merick’s Highway Patrol personnel file because on two prior occasions she entered into agreements to accept less than the complete file. Finally, defendants argue the subpoena seeks only to annoy and embarrass Melick and, for that reason, is improper.

         The South Dakota Highway Patrol filed a response indicating it supports defendants’ motion to quash, but will abide by any order the court may enter as to the subpoena. The Highway Patrol points out that employee personnel files are protected as confidential under state law.

         Ms. Amisi notes that her negligence claims against SuTran and the City of Sioux Falls center around those entities’ failure to properly hire, train, and supervise Melick. Thus, Ms. Amisi asserts the information in Melick’s personnel file may be relevant if it shows facts which indicate Melick was an inappropriate candidate for the position the other defendants hired him to hold. It may also be relevant as to whether Melick required special training or supervision before being allowed to carry out his job duties for the other defendants. Ms. Amisi believes the requested documents may show Melick discharged his service revolver to shoot his neighbor’s dog and that the Highway Patrol fired Melick or asked him to resign for improper actions on his part. Ms. Amisi asserts that any concerns as to confidentiality are assuaged by the protective order entered in this case.

         The parties in this case stipulated to the entry of a protective order in this case. See Docket Nos. 29 and 32. Under the terms of that order, “confidential information" is defined as including specifically “any document in Defendant Tom Melick’s personnel file from the South Dakota Highway Patrol." See Docket No. 29 at p.2, ¶ 3. In the stipulation, the parties agree that confidential information will only be used for the purposes of this litigation. Id. at ¶ 2. Confidential information may be produced only to counsel of record for the parties, attorneys appearing in or working on this litigation, including regular and temporary employees, contractors and agents; experts or consultants hired to assist in the preparation of this case by any attorney in the case; photocopying, graphic production services, computer services, or litigation support services hired by the parties or their counsel to assist in the litigation; parties’ employees (current and former) and agents for purposes related to this litigation; the court and its staff; and any other person to whom the court authorizes disclosure. Id. at pp. 2-3, ¶4.

         Under the protective order, if confidential information is disclosed to any person, that person must be told the information is confidential and they must sign an acknowledgement that they have been given a copy of the protective order and agree to abide by its terms. Id. at p. 3, ¶5. Inadvertent disclosure of confidential information, including material protected by the attorney-client privilege and the work-product doctrine, does not waive confidentiality. Id. at ¶¶6, 7.

         Confidential information submitted to the court must be filed under seal. Id. at p. 4, ¶8. Any party may designate material as confidential information. Id. at p. 5, ¶10. If the other party disputes the designation, the disputing party must file a motion with the court and seek the court’s determination of confidentiality. Id. The producing party need not produce the document until the court resolves the issue. Id.

         At the end of this litigation, all confidential materials must be destroyed or returned to the producing party. Id. at ¶11. The receiving party must certify to the producing party that the materials were either destroyed or returned. Id. The protective party allows any party to seek even more protections for confidential information should that be necessary. Id. at p. 5, ¶ 14.


         A. Standards Applicable to Discovery

         Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery in civil cases pending in federal court:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.

See Fed.R.Civ.P. 26(b)(1). Rule 26 contains specific limitations relative to electronic discovery and other objections to providing discovery:

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify the conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, ...

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