Mick v. Gibbons et al
Filing
130
MEMORANDUM AND ORDER: For the reasons set forth herein, NSP's motion to quash, Filing No. 125, is denied. NSP shall comply with the deposition subpoena served upon it on January 23, 2024 and located at Filing No. 126-1. Ordered by Magistrate Judge Jacqueline M. DeLuca. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN S. MICK, Personal
Representative of the Estate of Print
Zutavern, Deceased;
4:22CV3025
Plaintiff,
MEMORANDUM AND ORDER
vs.
DEPUTY BARRETT GIBBONS, in his
individual and official capacities;
DEPUTY LAWRENCE STUMP, in his
individual and official capacities;
SHERIFF DAN OSMOND, in his
individual and official capacities;
COUNTY OF CUSTER, a Nebraska
political subdivision; TRP. BRANDON
WILKE, in his individual capacity; and
JOHN/JANE DOE, training supervisor of
the Nebraska State Patrol, in his/her
individual and official capacities;
Defendants.
This matter is before the Court on non-party Nebraska State Patrol’s (“NSP”)
motion to quash. Filing. No. 125. For the reasons stated herein, the motion will be
denied.
BACKGROUND
On December 28, 2023, Plaintiff filed a Notice of 30(b)(6) Videoconferencing
Deposition on an unspecified “Defendant.” The notice instructed the unspecified
“Defendant” to produce for testimony:
each officer, director, agent and/or other person most knowledgeable in
training (including continuing education after completion of the NSP Training
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Academy) for NSP law enforcement officers (to include Defendant Brandon
Wilkie) effective as of February 2, 2023, in the following topics:
a. Responding to persons experiencing a mental health crisis;
b. Response to and resolution of events involving barricaded
subjects/suspects;
c. Use of force (non-lethal and lethal);
d. Police service dogs and dog handling, including in tactical events;
e. Special Weapons and Tactics and/or SWAT; and
f. Video recording devices (body-worn, dashboard, robot).
Filing No. 110.
On January 4, 2024, NSP provided Plaintiff’s counsel a written objection to
the notice of deposition. Filing No. 117. The parties conferred and, soon thereafter,
requested a teleconference with the Court, which occurred on January 19. During
the teleconference, Plaintiff’s counsel informed the Court of her intention to serve
a subpoena on NSP (as opposed to a deposition notice) to include the same or
similar topics. She sent NSP the subpoena on January 24 and, days later, NSP
notified counsel of its objections.
During the January 19 teleconference, the Court advised the parties that,
should NSP assert the same objections to the third-party subpoena as it did the
deposition notice, it could proceed directly to motion practice. Accordingly, on
January 30, NSP filed a motion to quash. NSP asserts the same argument in
response to Plaintiff’s subpoena as it did to the Rule 30(b)(6) deposition notice—
namely, sovereign immunity.
ANALYSIS
As an instrumentality of the State, NSP argues sovereign immunity shields
it from third-party discovery requests like the subpoena at issue here. Filing No.
127. In making this argument, NSP relies on the Eighth Circuit Court of Appeals’
decision in Alltel Comms, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012). In
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DeJordy the Eighth Circuit quashed a subpoena holding that the discovery was
subject to Indian tribal immunity. Id. at 1105.
But as NSP acknowledges, the Eighth Circuit has expressly permitted thirdparty discovery requests on state entities, which is the issue present here. See
Filing No. 127, p. 4 citing Missouri Dep’t of Nat. Res., 105 F.3d 434 (8th Cir. 1997)
(“Missouri DNR”). Nonetheless, NSP argues the issue now before the Court is
more akin to that presented in DeJordy than that presented in Missouri DNR. In
the alternative, NSP argues that, should this Court conclude Missouri DNR is
controlling upon this issue, the Eighth Circuit should overrule such finding. 1
The Eleventh Amendment states: “[t]he judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend XI. Generally, in the
absence of consent, a suit against the State or one of its agencies is prohibited by
the Eleventh Amendment. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19
(8th Cir. 1995). Here, NSP contends that a third-party subpoena qualifies as a “suit”,
and thus, sovereign immunity affords it protection. Filing No. 127.
As noted above, the Eighth Circuit has already considered an argument like
NSP’s in Missouri DNR. There, the district court denied a state agency’s motion to
quash subpoenas duces tecum served on it by litigants in a case in which the state
agency was not a party. In re Missouri Dep’t of Nat. Res., 105 F.3d at 435. The
agency then proceeded to seek a writ of mandamus directing the district court to
vacate its order arguing, in part, that the subpoenas infringed upon Missouri’s
sovereign immunity. Id. at 435-36. The Eighth Circuit denied that request,
concluding “[g]overnmental units are subject to the same discovery rules as other
In a footnote, NSP “acknowledges that this Court cannot overrule or disregard controlling Eighth Circuit
precedent” and advises that it “presents this argument to clearly preserve the issue.” NSP is correct. This
Court cannot ignore Eighth Circuit precedent and, as such, this order will focus upon whether the matter
at hand is governed by DeJordy or Missouri DNR rather than this Court’s prediction of what the Eighth
Circuit will do or should do if presented with the issue before the Court.
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persons and entities having contact with the federal courts.” Id. at 436 (citing
United States v. Procter & Gamble, 356 U.S. 677, 681 (1958)). The Court went as
far as to say “[t]here is simply no authority for the position that the Eleventh
Amendment shields government entities from discovery in federal court.” Id.
Missouri DNR, at the time of this order, remains good law in the Eighth Circuit and
is binding in this case.
To avoid Missouri DNR’s holding, NSP argues this court should apply the
conclusion set forth in DeJordy. But these two cases are easily distinguishable. In
DeJordy, the Ogalala Sioux Tribe moved to quash third-party subpoenas based on
tribal immunity. DeJordy, 675 F.3d at 1102. The district court denied the motion to
quash, relying on Missouri DNR. Id. at 1104. The Eighth Circuit reversed, holding
that “[a]lthough Eleventh Amendment precedents are instructive, tribal immunity,
‘is not congruent with that which the Federal Government, or the States, enjoy.’”
Id. at 1104 (quoting Three Affiliated Tribes of Fort Berthold Reservation v. Wold
Eng’g, 476 U.S. 877, 890 (1986)). The Eighth Circuit declined to speculate whether
sovereign immunity provides protection against “disruptive third-party subpoenas
that would clearly be barred in a State’s own courts.” DeJordy, 675 F.3d at 110405.
This Court does not conclude, as NSP urges, that DeJordy overrules or
questions the holding in Missouri DNR. See also McGehee v. Nebraska Dep't of
Corr. Servs., No. 4:18CV3092, 2019 WL 1227928 (D. Neb. Mar. 15, 2019), aff'd,
968 F.3d 899 (8th Cir. 2020), reh'g granted and opinion vacated (Oct. 5, 2020), on
reh'g, 987 F.3d 785 (8th Cir. 2021), and vacated and remanded, 987 F.3d 785 (8th
Cir. 2021). Rather, the Eighth Circuit reached two different conclusions based on
two incongruent immunities.
As a final matter, the State argues that sovereign immunity applies if a
subpoena compels a state agency to “act in a manner different from that in which
the agency would ordinarily choose to exercise its public function,” or threatens the
state’s autonomy. Filing No. 127 at p. 6 citing DeJordy, 675 F.3d at 1103. Applying
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this reasoning here, the State contends that Plaintiff’s subpoena, if enforced, would
disrupt its autonomy by forcing it to do something it otherwise would not do—
namely, prepare and produce witnesses for testimony. 2
The Court disagrees. A subpoena, by its very nature, compels a party to do
something it would not otherwise do. Thus, if that were the standard, the outcome
in Missouri DNR would be different. But Missouri DNR’s holding is clear: “[t]here is
simply no authority for the position that the Eleventh Amendment s hields
government entities from discovery in federal court.” 105 F.3d at 436.
For the reasons explained above, the holding in Missouri DNR controls and
the motion is denied.
CONCLUSION
For the reasons set forth herein, NSP’s motion to quash, Filing No. 125, is
denied. NSP shall comply with the deposition subpoena served upon it on January
23, 2024 and located at Filing No. 126-1.
IT IS SO ORDERED.
Dated this 6th day of February, 2024.
BY THE COURT:
s/ Jacqueline M. DeLuca
United States Magistrate Judge
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To the extent NSP argues compliance would be an undue burden under the Federal Rules of Civil
Procedure, the Court finds the information sought to be relevant, reasonably narrowed in scope, and
cannot be obtained from some other source. See Fed . R. Civ. P. 26 and 45.
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