United States District Court, D. South Dakota, Southern Division
ORDER ON DEFENDANTS’ MOTION TO QUASH DOCKET NO.
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
Standards Applicable to Discovery
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
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
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, ...