Murphy et al v. Minnesota Department of Human Services et al

Filing 160

ORDER. 1. Defendant's appeal (Doc. No. 109 ) of Magistrate Judge Becky R. Thorsons October 4, 2017 Order and Opinion on Plaintiffs' Motion to Compel Regarding Temporal Scope and Terms for Searching Electronically Stored Information (ESI) is OVERRULED. 2. Magistrate Judge Becky R. Thorson's October 4, 2017 Order and Opinion on Plaintiffs' Motion to Compel Regarding Temporal Scope and Terms for Searching Electronically Stored Information (ESI) (Doc. No. 102 is AFFIRMED consistent with this Order. (Written Opinion). Signed by Judge Donovan W. Frank on 12/14/2017. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tenner Murphy, by his guardians Kay and
Richard Murphy; Marrie Bottelson; Dionne
Swanson; and on behalf of others similarly
situated,

Civil No. 16-2623 (DWF/BRT)

Plaintiffs,
v.

ORDER

Emily Johnson Piper in her Capacity
as Commissioner of the Minnesota
Department of Human Services,
Defendant.

INTRODUCTION
This matter is before the Court upon Defendant’s appeal of Magistrate Judge
Becky R. Thorson’s October 4, 2017 Order and Opinion on Plaintiffs’ Motion to Compel
Regarding Temporal Scope and Terms for Searching Electronically Stored Information
(ESI) (“Order”) (Doc. No. 102). Plaintiffs filed a response to Defendant’s objections on
November 1, 2017. (Doc. No. 118.)
DISCUSSION
I.

Legal Standard
The Court must modify or set aside any portion of the Magistrate Judge’s order

found to be clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a); Local Rule 72.2(a). This is an “extremely deferential” standard. Reko v.
Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). “A finding is

‘clearly erroneous’ when although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996)
(quoting Chase v. Comm’r of Internal Revenue, 926 F.2d 737, 740 (8th Cir. 1991)). “A
magistrate judge’s ruling is contrary to law when it either fails to apply or misapplies
pertinent statutes, case law or rules of procedure.” Coons v. BNSF Ry. Co., Civ.
No. 15-4282, --- F. Supp. 3d ---, 2017 WL 3382311, at *5 (D. Minn. Aug. 7, 2017)
(citing Edeh v. Midland Credit Mgmt., Inc., 748 F. Supp. 2d 1030, 1043 (D. Minn.
2010)).
II.

The Magistrate Judge’s Order and Defendant’s Objections
In the October 4, 2017 Order, Magistrate Judge Thorson addressed disputes

between Plaintiffs and Defendant regarding (1) search terms for conducting electronic
discovery and (2) the temporal scope applicable to particular discovery requests.
Defendant objects to the Order as it relates to both issues, and Plaintiffs argue that
Defendant has not met her burden to prevail on these objections. The Court summarizes
the Magistrate Judge’s conclusions and Defendant’s objections to the Order, below.
A.

Search Terms

First, Magistrate Judge Thorson considered the proper search terms to be applied
to Plaintiffs’ discovery requests. 1 The Magistrate Judge considered Defendant’s

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As Magistrate Judge Thorson explained in the October 4, 2017 Order, this dispute
was originally brought before the Court in the context of Plaintiff’s previous Motion to
Compel Discovery. (Doc. No. 102 at 3 (citing Doc. Nos. 65, 68).) In the August 21,
(Footnote Continued on Next Page)
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argument that utilizing Plaintiffs’ search terms would result in an undue burden but
determined that Defendant had not met her burden to preclude discovery on this basis. In
particular, the Magistrate Judge discussed Defendant’s lack of specificity regarding the
claimed burden and noted that “[g]iven the issues in this case, it is not surprising that
nearly 100,000 documents could be discoverable.” (Doc. No. 102 at 4.) Thus, the
Magistrate Judge “order[ed] the parties to adopt the Plaintiffs’ proposed search terms.”
(Id.)
Defendant argues that the Magistrate Judge’s Order is contrary to law because she
failed to adequately analyze proportionality and relevance with respect to the search
terms dispute. In addition, Defendant asserts that the Magistrate Judge clearly erred in
concluding that Defendant had not established an undue burden because “[i]t is
overburdensome on its face to review tens of thousands of electronic records.” (Doc.
No. 109 at 4.) Defendant emphasizes that her proposed search terms would yield
approximately 17,000 documents whereas Plaintiffs’ proposed terms which were adopted
by the Magistrate Judge yield more than 70,000 documents. Discovery, Defendant urges,
should not be used to permit parties to conduct “a ‘fishing expedition.’” (Id. (quoting
Carlson Cos. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1089 (D. Minn. 1973)).)

(Footnote Continued From Previous Page)
2017 Order on this Motion, the Magistrate Judge denied Plaintiffs’ Motion without
prejudice with respect to search terms and directed the parties to meet and confer on this
topic. (Id. at 3-4 (citing Doc. No. 78).) With the Court’s permission and after failing to
resolve the disputed search terms, the parties thereafter submitted supplemental briefs
addressing this issue. (Id. at 4 (citing Doc. Nos. 80, 83).)

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In contrast, Plaintiffs assert that the Magistrate Judge properly determined that
Plaintiffs’ search terms should be utilized in light of the relevance of the proposed terms
and the corresponding burden to Defendant. Plaintiffs emphasize that their proposed
search terms are necessary to avoid missing relevant documents. Plaintiffs suggest that
“it is to be expected that a large number of relevant documents will be in DHS’s
possession” in light of the statewide scope of this class action litigation. (Doc. No. 118 at
11-12.) Plaintiffs contest Defendant’s arguments that the requested discovery is facially
overburdensome or will result in a fishing expedition. Finally, Plaintiffs contend that the
Magistrate Judge correctly found that Defendant had not established the alleged undue
burden.
B.

Temporal Scope

Second, Magistrate Judge Thorson evaluated the appropriate temporal scope
pertaining to Plaintiffs’ written discovery requests. 2 The Magistrate Judge was
“persuaded that Plaintiffs’ temporal limits are appropriate” because the requested
discovery was both relevant and proportional. (Doc. No. 102 at 6-7.) Specifically, the
Magistrate Judge concluded that “Plaintiffs have explained why the temporal scope

2

The temporal scope issue also first arose in connection with Plaintiff’s previous
Motion to Compel. (Id. at 5 (citing Doc. No. 65).) The parties’ limited briefing on this
issue, however, precluded the Magistrate Judge from adequately determining the
appropriate time frame for all discovery requests; instead, the Magistrate Judge only
determined the issue with respect to Interrogatory Nos. 1, 2, and 9 and Document
Request No. 1. (Id. at 5-6 & n.3 (citing and quoting Doc. No. 78).) The parties then
reargued this issue following a subsequent motion by Plaintiffs. (Id. at 6 (citing Doc.
Nos. 86-90, 100).)

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should reach back to 2009 for Document Requests 2, 7, 8, 9, 10, 11, 15, and 16.” 3 (Id. at
7.) The Magistrate Judge acknowledged Defendant’s argument that information from
2009 is not relevant in an official-capacity suit seeking prospective relief, but determined
that “Defendant’s argument . . . does not rebut Plaintiff’s showing that responsive
documents created between 2009 and the lawsuit are relevant to the underlying claims
and defense in order to establish that Plaintiffs are entitled to the relief sought.” (Id. at
7-8.) The Magistrate Judge further concluded that Defendant had not met her burden to
establish that the application of Plaintiffs’ proposed scope of discovery dating back to
2009 would be an undue burden, noting that this time frame would only result in 2,619
more documents to review than the 2013 date proposed by Defendant. 4
With respect to temporal scope, Defendant argues that the Magistrate Judge’s
Order is contrary to law because the Magistrate Judge did not conduct an adequate

3

The Court notes that Plaintiffs did not specifically move for an order addressing
temporal scope with respect to Document Request No. 10. (See Doc. No. 86.) However,
Document Request No. 10 is cross-referenced in Defendant’s answers to other Document
Requests for which Plaintiffs did move for a determination of temporal scope. (See, e.g.,
Doc. No. 86; Doc. No. 70 (“Burke Aff.”) ¶ 7, Ex. F at 4-5 (concerning Document
Request No. 15, responding in part that “Defendant refers Plaintiffs to Response to
Request No. 10”).)

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The Magistrate Judge also declined to preemptively grant Defendant’s request to
preclude discovery of potentially privileged documents. In a footnote, Defendant raised
an objection to this conclusion, contending that “many of Plaintiffs’ document requests
by their very terms seek information protected by deliberative process privilege.” (Doc.
No. 109 at 6 n.3.) While Defendant may have a valid claim of privilege with respect to
some of the documents Plaintiffs seek to obtain, the Court agrees with the Magistrate
Judge’s conclusion that any claimed privilege with respect to particular discovery
requests can be addressed through the parties’ privilege logs and, if necessary, motion
practice to resolve a dispute.
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inquiry into whether Plaintiffs met their burden to establish relevance. In particular,
Defendant asserts that the Order “contains no discussion of why documents created
between January 1, 2009 and December 31, 2012 are relevant to Plaintiffs’ claim that
Defendant’s current policies are unlawful.” (Doc. No. 109 at 5.) Defendant also
contends that Plaintiff’s proposed time frame dating back to 2009 is not relevant and
argues that the Magistrate Judge erred in concluding otherwise. Because this case only
involves claims relating to Defendant’s current policy seeking prospective relief,
Defendant argues that prior policies are not relevant. Defendant also suggests that the
cases Plaintiffs rely upon to establish relevance, Lane v. Kitzhaber, 283 F.R.D. 587
(D. Or. 2012) and Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016), actually support
Defendant’s position. Finally, Defendant argues that even if this time frame were
relevant, the request to review 2,619 additional documents is not proportional under the
circumstances.
Plaintiffs argue that the Magistrate Judge correctly determined that Plaintiffs’
proposed time frame for discovery was relevant and proportional and properly concluded
that Defendant had not established that the imposition of this time frame was irrelevant or
would impose an undue burden. Plaintiffs note in particular that “the 2009 moratorium
on new corporate foster care licenses created the need for more alternative settings and
transition services.” (Doc. No. 118 at 9.) Plaintiffs assert that Defendant has failed to
rebut the relevance of this event and the corresponding time frame. Specifically,
Plaintiffs contend that Defendant’s argument that this case relates to only current policy
does not undermine Plaintiffs’ showing that “the time period between 2009 to the present
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is directly relevant to reasonable promptness, due process, integration mandate claims
and Defendant’s fundamental alteration defense.” (Id. at 10.)
III.

Analysis
Under Federal Rule of Civil Procedure 26, “[p]arties 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.” Fed. R. Civ. P. 26(b)(1). In evaluating the proper
scope of permissible discovery under this rule, the court should “consider[] 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.” Id. Information that meets these requirements is
discoverable even if it would not be admissible in evidence. 5 Id. A party opposing

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Rule 26(b)(1) was amended in 2015 to eliminate the statement that relevant
information is discoverable even if not admissible in evidence if it is “reasonably
calculated to lead to the discovery of admissible evidence.” See Fed. R. Civ. P. 26(b)(1)
advisory committee’s note to 2015 amendment. Although neither party has raised this
issue, the Court notes that the Magistrate Judge quoted this language from the former
version of Rule 26(b)(1) in the October 4, 2017 Order. (See Doc. No. 102 at 1-2.)
Plaintiffs have also referenced the prior version of the rule. (See, e.g., Doc. No. 118 at
12.)
The Magistrate Judge’s reference to the prior rule, however, does not materially
alter the relevance analysis at issue. Notably, “[c]ourts widely recognize that relevance is
to be broadly construed, even since the recent change in the rule.” Amador v. U.S. Bank
Nat’l Ass’n, Civ. No. 16-600, 2017 WL 5151680, at *5 (D. Minn. Nov. 6, 2017)
(citations omitted); see also Henry v. Morgan’s Hotel Grp., Inc., Civ. No. 15-CV-1789,
2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016) (“Under the amended Rule, [r]elevance
is still to be construed broadly to encompass any matter that bears on, or that reasonably
could lead to other matter that could bear on any party’s claim or defense.” (quotation
marks and citation omitted)). Furthermore, the Magistrate Judge appears to have
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discovery of electronically stored information “must show that the information is not
reasonably accessible because of undue burden or cost.” See Fed. R. Civ. P. 26(b)(2)(B).
In light of these governing standards and for the reasons outlined below, the Court
concludes that Magistrate Judge Thorson’s Order is neither clearly erroneous nor
contrary to law with respect to both search terms and the temporal scope of discovery.
A.

Search Terms

The Court concludes that the Magistrate Judge’s Order is not clearly erroneous or
contrary to law with respect to the parties’ search terms dispute. The Court reaches this
conclusion in light of the demonstrated relevance of each of Plaintiffs’ proposed search
terms and Defendant’s failure to adequately support her claimed burden in utilizing those
search terms. In particular, the Court finds that the terms relating to individualized
housing options, integrated settings, and person-centered transition planning are directly
relevant to Plaintiff’s integration mandate and reasonable promptness claims. For clarity,
the Court interprets the Magistrate Judge’s October 4, 2017 Order to adopt the search
terms proposed in Plaintiffs’ supplemental brief on this issue. (See Doc. 102 at 4, 9
(citing Doc. No. 80).) To the extent Plaintiffs proposed a specific application of these
search terms to particular discovery requests in their Memorandum in Support of Motion

(Footnote Continued From Previous Page)
appropriately focused on whether the information sought was pertinent to the parties’
claims and defenses and whether the requested discovery was proportional under the
circumstances. Thus, the Magistrate Judge’s reference to the prior version of the rule
does not alter the Court’s consideration of Defendant’s objections.
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to Compel Discovery Regarding Temporal Scope, (see Doc. No. 88), the Court concludes
that this proposal is not encompassed in the Magistrate Judge’s October 4, 2017 Order.
B.

Temporal Scope

The Court also finds that the Magistrate Judge did not clearly err or act contrary to
law in adopting Plaintiffs’ proposed temporal scope for discovery dating back to
January 1, 2009. The Court agrees with Defendant that the Eleventh Amendment bars
federal courts from holding state actors liable for past conduct in an official-capacity suit
seeking prospective relief. See, e.g., Green v. Mansour, 474 U.S. 64, 71-74 (1985)
(concluding that a federal court may not issue “a declaratory judgment that [a state actor]
violated federal law in the past” in the absence of a continuing or threatened future
violation). However, Plaintiffs are not seeking to impose such liability here. Plaintiffs
request prospective declaratory and injunctive relief, and they do not seek to hold
Defendant liable for prior conduct based on information dating back to 2009. Rather, as
Plaintiffs have consistently articulated in their briefing on this issue, they seek discovery
beginning in January 1, 2009 to support their claims for prospective relief and to rebut
Defendant’s fundamental alteration defense.
The Court agrees with Magistrate Judge Thorson that Plaintiffs have adequately
demonstrated that this temporal scope is relevant. In 2009, the state imposed a
moratorium on the development of new corporate foster care facilities. (See Doc. No. 70
(“Burke Aff.”) ¶ 10 , Ex. I.) In Plaintiffs’ Amended Complaint, Plaintiffs identify this
event as relevant to their claims and suggest that “Defendants have known, since at least
2009, that individuals receiving Disability Waiver services need access to individualized
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housing as an alternative to [Community Residential Setting (“CRS”)] facilities.” (Doc.
No. 33 ¶ 66.) Plaintiffs have explained why evidence from the time period following this
event until the present is relevant. In particular, such evidence is relevant to support
Plaintiffs’ claim that more integrated alternatives to CRS facilities are feasible and to
oppose Defendant’s contention that Plaintiffs’ requested relief would constitute a
fundamental alteration to the State’s Disability Waiver services system. Defendant has
not demonstrated that such information is not relevant and has failed to establish that
responding to discovery within this temporal scope would be an undue burden.
Giving proper deference to the Magistrate Judge’s October 4, 2017 Order and for
the reasons stated, the Court denies Defendant’s appeal and affirms Magistrate Judge
Becky R. Thorson’s October 4, 2017 Order consistent with this Order.
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendant’s appeal (Doc. No. [109]) of Magistrate Judge Becky R.

Thorson’s October 4, 2017 Order and Opinion on Plaintiffs’ Motion to Compel
Regarding Temporal Scope and Terms for Searching Electronically Stored Information
(ESI) is OVERRULED.
2.

Magistrate Judge Becky R. Thorson’s October 4, 2017 Order and Opinion

on Plaintiffs’ Motion to Compel Regarding Temporal Scope and Terms for Searching
Electronically Stored Information (ESI) (Doc. No. [102] is AFFIRMED consistent with
this Order.
Dated: December 14, 2017

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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