Peterson v. City of Minot et al

Filing 43

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 35 Motion to Compel Enforcement of Subpoena; granting 34 Motion to Quash Subpoena. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Joshua Peterson,
Plaintiff,
vs.
City of Minot, a municipal corporation,
et. al.,
Defendants.

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ORDER RE MOTIONS TO QUASH
SUBPOENA AND TO ENFORCE
THE SUBPOENA

Case No.1:16-cv-271

Before the court is plaintiff’s motion to quash a subpoena issued by defendant to plaintiff’s
parents requiring that his parents produce plaintiff’s computer (which is in their possession while
plaintiff is in jail) to defendant’s police department, purportedly so that defendant can have the
computer forensically examined for possible relevant information. Also, before the court is
defendant’s motion to compel enforcement of the subpoena.
The court concludes that plaintiff has standing to bring his motion as the owner of the
computer. The court further concludes that defendant does not have the right to go on a fishing
expedition to examine the computer for whatever might suit its interest. Consequently, the subpoena
to plaintiff’s parents will be quashed.
That being said, given the particular circumstances of the case and the fact that we are still
a long way prior to trial, the court will allow defendant to make a very targeted request to the
plaintiff for discovery of additional information that may be on the computer that is not cumulative
of what defendant has already obtained from plaintiff during his deposition. Plaintiff’s counsel can
then respond accordingly, either by objecting (but not on the basis that discovery has closed) or
providing responsive information that is on the computer, if any. Any disputes can be resolved by
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motion, but only after first following the procedure for informal resolution of the disputes through
a phone call to the undersigned as required by our Local Rules.
Defendant’s counsel is concerned that the information it wants to obtain may have already
been deleted and that it will take a forensic examination of the computer to see if that is the case and
whether any deleted information is still recoverable. Defendant’s counsel, however, is jumping the
gun. The above procedure will be followed first. Then, if there are no legitimate objections and if
the response is that information was not found that was responsive to the particularized requests,
defendant can then seek a court order allowing a forensic examination of the computer. At that
time, the court will address whether it will permit a forensic examination, after considering the
defendant’s need for the particular information, the proportionality requirements of Fed. R. Civ. 26,
and likelihood that any of the sought after information would have been on the computer in the first
instance. From what the parties have described to the court so far, the court has its doubts about the
latter.
Based on the foregoing, the court hereby ORDERS as follows:
1.

Plaintiff’s Motion to Quash Subpoena (Doc. No. 34) is GRANTED and the
subpoena to plaintiff’s parents for production of plaintiff’s computer is quashed.

2.

Defendant’s Motion to Compel Enforcement of Subpoena (Doc. No. 35) is
DENIED.

3.

Defendant may make a request to plaintiff for production of documents targeted
specifically to additional relevant information not otherwise obtained during
plaintiff’s deposition, but must do so within the next ten (10) days. Plaintiff shall
then have (20) days to respond.

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4.

Plaintiff’s attorneys shall take possession of plaintiff’s computer and hold it until the
entry of final judgment in this action unless otherwise ordered by the court.

Dated this 8th day of January, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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