Stormo v. City of Sioux Falls et al

Filing 159

ORDER denying 120 Motion to Modify the Summary Judgment Order; granting 123 Motion to Compel; denying 123 Motion for Sanctions; denying 123 Motion for Default Judgment; granting in part and denying in part 139 Motion to Compel; granting in part and denying in part 141 Motion to Compel; denying 141 Motion for Sanctions; denying 139 Motion for Sanctions; granting 144 Motion for Protective Order. Signed by U.S. District Judge Karen E. Schreier on 2/19/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ERIC STORMO,

4:12-CV-04057-KES
Plaintiff,

vs.
CITY OF SIOUX FALLS, R. SHAWN
TORNOW, DAVE MUNSON, MIKE
HUETHER, PAT KNEIP, DOUG
BARTHEL, JOHN DOE,

ORDER DENYING MOTION TO
MODIFY, GRANTING IN PART AND
DENYING IN PART MOTIONS TO
COMPEL, AND GRANTING MOTION
FOR PROTECTIVE ORDER

Defendants.
INTRODUCTION
Plaintiff, Eric Stormo, filed this pro se lawsuit naming the City of Sioux
Falls, R. Shawn Tornow, Dave Munson, Mike Huether, Pat Kneip, Doug
Barthel, and John Doe as defendants. Stormo moves this court to modify its
November 21, 2012 summary judgment order (Docket 120) and to compel
defendants to produce or reproduce discovery (Docket 123; Docket 139;
Docket 141). Defendants move for an order protecting Mayor Huether from
being deposed. Docket 144. For the following reasons, Stormo’s motions are
denied in part and granted in part, and defendants’ motion is granted.
FACTUAL BACKGROUND
Stormo filed his original complaint in April 2012. Docket 1. He alleged
that defendants violated his federal civil rights from 2005 to the present

because of his status as a landowner and landlord. Id. The court granted
defendants’ motion for summary judgment in part. Docket 27. Stormo then
filed a second amended complaint with additional claims. Docket 34.
Discovery is ongoing and fraught with complications. Stormo has filed
numerous motions, often raising unrelated, irrelevant, or indecipherable
arguments. Defendants have neither responded to all of Stormo’s discovery
requests adequately nor complied with all of the court’s orders sufficiently.
DISCUSSION
I.

Stormo’s Motion to Modify the Summary Judgment Order
(Docket 120) Is Denied
Stormo filed a motion presenting numerous arguments that the court

should reverse its November 21, 2012 decision to grant summary judgment on
certain claims. Docket 120. First, he argues that summary judgment should
not have been granted based on his failure to file a Notice of Harm under SDCL
3-21-2. Docket 120 at 2. But this is not the reason the court granted summary
judgment. The court granted summary judgment because most of Stormo’s
claims were barred by the statute of limitations. Docket 27 at 8-10.
Second, Stormo argues that his state-law claims should not have been
dismissed because SDCL 15-2-15.2 only applies to federal civil rights claims.
Docket 120 at 3. His claims, however, were dismissed under SDCL 15-2-14(3)
and 15-2-15(1), see Docket 27 at 8-10, both of which apply to state-law claims.
Third, Stormo argues that the court should not have granted summary
judgment because defendants did not argue that his claims were barred by the
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statute of limitations. Docket 120 at 7. Defendants’ arguments are immaterial.
Stormo was required by South Dakota law to bring his claims within the period
defined by the statute of limitations. He failed to do so. The claims are therefore
barred. Stormo’s motion to modify the summary judgment order that was
entered three years ago is denied.
II.

Stormo’s Motion To Compel (Docket 123) Is Granted
Stormo moves the court to compel defendants to produce documents he

requested in “Document Request 1.” Docket 123 at 2. He alleges defendants
have not completed requests 8, 9, 15, 21, 36, 37, 45, 46, 53, and 54. Id. While
the court sustained objections to all of these requests, it narrowed the scope of
the requests and ordered defendants to respond. Docket 60. Stormo’s
argument for the necessity of the information is vague and is based on claims
that were dismissed when the court granted defendants’ motion for summary
judgment. Docket 123 at 5-6.
In response to this motion, defendants claim that they answered these
requests. Docket 133. Defendants filed an affidavit from Paul M. Bengford.
Docket 134. Bengford is an Assistant City Attorney for the City of Sioux Falls
and claims that defendants have already “produced all known documents that
are responsive to Plaintiff’s production requests and that relate to the sole
claims remaining in this case, all of which arise from the April 2009 seizure of
Plaintiff’s lift.” Id. at 1-2. As previously discussed in this court’s January 26,
2016 order, Stormo’s remaining claims include more than just the 2009
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seizure. See Docket 149. Therefore, Stormo’s motion is granted. Defendants are
ordered to respond to document requests 8, 9, 15, 21, 36, 37, 45, 46, 53, and
54 as they relate to the surviving claims.
III.

Stormo’s Motion To Compel (Docket 139) Is Granted in Part and
Denied in Part
Stormo moves this court to compel defendants to provide electronically

stored information in its native format, metadata for these documents, and an
index explaining information about the documents. Under Federal Rule of Civil
Procedure 34(b)(2)(E), when
producing documents or electronically stored information: (i) A
party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond
to the categories in the request; (ii) If a request does not specify a
form for producing electronically stored information, a party must
produce it in a form or forms in which it is ordinarily maintained
or in a reasonably usable form. . . .
A.

Native Format

Stormo moves this court to compel defendants to reproduce documents
in their native format. Docket 139 at 1. He claims that he made a general
request for all electronically stored information in its native format at the time
of his initial document request. Id. at 2. He does not, however, explain what is
wrong with the format in which defendants have produced the documents.
Therefore, the motion to compel is denied as it concerns his request to
reproduce documents in their native format.

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B.

Metadata

Stormo moves this court to compel defendants to provide metadata for all
documents and electrically stored information that they have produced. Id. at
6-7. In Document Request 3 at number 9, Stormo requested, “All Documents
or meta data [sic] which log or audit trail the time and date entries were made
or changed, or the data which was entered or changed, for any city controlled
computer records system . . . .” Docket 139-2. Stormo argues that metadata
would allow him to discover whether the data is “forensically sound,”
specifically: when it was created, accessed, or modified. Docket 139 at 7.
Defendants argue that providing Stormo the metadata would be overly
burdensome and state that they have no system that tracks the metadata
Stormo seeks. Docket 153 at 3. Therefore, in order to provide the metadata,
defendants would have to go through each document and retrieve the metadata
from the program with which the document was created. Id.
Defendants also contend that they previously objected to this request. Id.
at 2-3; see also Docket 139-2. In response to Stormo’s request, defendants
merely stated “Overly Burdensome Request.” Docket 139-2. Stormo argues that
defendants did not carry their burden to show that the request was
burdensome because they have done nothing more than state a boilerplate and
cursory objection. See Continental Ill. Nat'l Bank & Trust Co. of Chicago v.
Caton, 136 F.R.D. 682, 684–85 (D.Kan. 1991) (“All discovery requests are a
burden on the party who must respond thereto. Unless the task of producing
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or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.”).
Defendants’ response may fail to articulate how this discovery is
extraordinary or unusual, but Stormo has failed to show the metadata’s
relevancy to his claims. His motion to compel argues that he wants the
metadata to be sure that the documents were not created for or altered in
anticipation of litigation. Docket 139 at 7. Stormo has not explained why he
thinks defendants might have done this. There is no indication that they have
altered the documents. Stormo fails to convince the court that the metadata is
relevant to his claims, the request falls outside of the parameters of discovery,
and therefore, his motion to compel is denied as it concerns his request for
metadata.
C.

Index

Stormo moves this court to compel defendants to label and index the
provided discovery pursuant to the requirements of Federal Rule of Civil
Procedure 34(b)(2)(E)(i). Docket 139 at 4. He claims that defendants have not
produced documents and electronically stored information “as they are kept in
the usual course of business,” or, in the alternative, “organize[d] and label[led]
them to correspond to the categories in the request . . . .” Fed. R. Civ. P.
34(b)(2)(E)(i). He states, “In each instance, the Defendants have responded with
a jumbled group of documents which is not labeled or indexed in any manner.”
Docket 139 at 2. He claims that removing the documents from their original
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files made it impossible to determine the information about the custodian and
source of the documents. Id. at 3. It is also not clear to which request each
document is responsive. Id. at 4.
Defendants argue that they have produced documents in an organized
fashion and in the form kept in the ordinary course of business. Docket 153 at
5. Beyond this assertion, defendants do not explain how they complied with
Rule 34(b)(2)(E)(i).
Defendants also argue that the concerns underlying Rule 34(b)(2)(E)(i)
are not implicated by Stormo’s document requests. Id. Defendants, unlike
defendants in other cases where courts found indexes necessary, produced one
box (1,300 pages) of documents. Id. Defendants essentially argue that this case
involves the number of documents that is both too few to index but too many to
provide metadata. The court disagrees. Stormo’s index request is reasonable
and required by the rules, and the smaller amount of documents will make it
easier to index.
Defendants argue that Stormo has not claimed he was prevented from
“reviewing or using” the documents, and that if he found he was, he should not
have waited a year to complain. Id. at 5-6. Stormo’s motion, however, does
make this claim. See Docket 139 at 3 (stating it is impossible to determine the
information about the custodian and source of the documents). Further,
Stormo’s “minimum” request makes it clear that he cannot tell to which
document request each document responds. See Id. at 4.
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Finally, defendants argue that Rule 34 only requires “the documents be
organized and labeled in order to correspond to the categories in the applicable
requests for production[,]” and need not “be produced in the form Plaintiff has
requested.” Docket 153 at 6 n. 2. Stormo requests only “a) the bates number or
other identifier of the document; b) the name of the person who is custodian of
the document; c) the original source and author of the document; and d) the
document request number and request number of any requests that the
document is responsive to” for each document. Docket 139 at 4. Supplying this
information is not overly burdensome on defendants. Therefore, Stormo’s
motion to compel is granted as it concerns preparation of an index that
supplies the information described above.
While the court grants Stormo’s motion to compel defendants to produce
an index, it does not find any of Stormo’s requested sanctions necessary.
Discovery has already been extended pursuant to this court’s order. Docket
155. All other requested forms of sanctions are inappropriate and therefore
denied.
IV.

Stormo’s Third Motion to Compel (Docket 141) Is Granted in Part
and Denied in Part
Stormo moves to compel defendants to provide adequate responses to

interrogatories and to perform a reasonable inquiry for all discovery.
Docket 141 at 1. Defendants argue that their responses are adequate and that
they are not required to provide or inquire more. Docket 152 at 1-2. Stormo
raises a number of objections to defendants’ responses in his motion and
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attachment. Docket 141; Docket 141-3. He makes the same objections to
multiple responses, and to the extent that the holding to all similar objections
are the same, the court will rule on them as a group.
As a preliminary matter, there has been confusion in this case as to what
claims remain. See Docket 149. Stormo complains that defendants continue to
respond to his discovery requests as if his only remaining claim is the 2009
confiscation of his lift. Docket 141 at 9-10. Defendants agree that in light of the
court’s order clarifying the remaining claims, they must review their answers to
Stormo’s interrogatories and supplement additional information to the extent
necessary. Docket 152 at 2 n. 1. Therefore, Stormo’s motion is granted as it
concerns defendants’ review and supplementation of their discovery production
given Stormo’s amended complaint.
To be clear, however, this does not mean that all of Stormo’s interactions
with defendants is now within the boundaries of discovery. As Stormo states,
“the context of the several year disagreement between the parties” is not now
discoverable. As always, discovery must be relevant to a party's claim or
defense. Fed. R. Civ. P. 26(b)(1).
A.

Defendants Performed an Adequate Inquiry

Stormo moves the court to compel defendants to perform an adequate
inquiry to respond to his interrogatories and other discovery requests and to
provide new answers to each interrogatory. Docket 141 at 2. The crux of his
argument is that none of the defendants nor everyone else present when his lift
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was confiscated were interviewed. Id. There is no requirement in the federal
rules or case law that defendants’ counsel interview all defendants or all
individuals who were present during the confiscation of the lift in 2009.
Stormo appears to quote the rule regulating requests for admissions by
demanding that defendants perform a “reasonable inquiry.” See Fed. R. Civ. P.
36(a)(4). He also quotes this court’s discussion of rule 34, which concerns
production of documents. This court explained that a party must “conduct a
reasonable inquiry into the factual basis of its responses to discovery and,
based on that inquiry, a party responding to the production request is under
an affirmative duty to seek that information reasonably available to it from its
employees, agents, or others subject to its control.” McElgunn v. CUNA Mut.
Grp., No. CIV.06-5061KES, 2008 WL 2717872, at *2 (D.S.D. July 10, 2008)
(citing A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal.
2006)).
Stormo does not point to a provision in the rule concerning
interrogatories or case law that requires that defendants interview all named
defendants or all individuals who were at the site where the lift was confiscated
in 2009. But, even if there were, the court finds defendants’ response adequate.
Defendants replied to interrogatory 6 with a list of people they sought
information from to respond to Stormo’s discovery requests. Docket 141-2. This
list is fairly extensive, but Stormo complains that none of the defendants are on
the list. There is no requirement that defendants’ counsel interview defendants.
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Defendants claim they had no personal knowledge to help counsel respond to
any of Stormo’s discovery requests. Interrogatory 6 asks for people who
contributed substantive information. Id. Therefore, if defendants were
interviewed and did not have any personal knowledge of relevant matters, their
names would not end up on the list.
In interrogatory 1, Stormo asks for a custodial history of his lift. Docket
141-3 at 3. He argues that defendants’ response was not adequately researched
because defendants did not interview people who were present on the day his
lift was confiscated such as police officers or city employees who attached the
lift to a truck to transport it. Id. This does not affect the adequacy of
defendants’ inquiry. Their response gives a full explanation of where the lift has
been held since it was confiscated. Stormo’s complaint is not that the response
was inadequate but that it did not reflect the facts as he wanted them to be or
believes they are. Stormo states that the reason certain people were not
interviewed was “presumably . . . to conceal that someone not shown in the
photographs such as the Mayor or Defendant Tornow was present.” Id. at 3-4.
His speculation does not mean that defendants’ inquiry into his interrogatories
was inadequate. For these reasons, Stormo’s motion is denied as it concerns
the adequacy of defendants’ inquiry into his discovery requests.
B.

Defendants’ Use of the Word “Seizure” Is Not Inappropriate

Stormo moves this court to compel defendants to use the full meaning of
the word seizure, rather than only the physical meaning of the word. The result
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would be that defendants’ response to his interrogatories would be inadequate
because “seizure” of the lift, by Stormo’s definition, encompasses basically
every interaction he has had with defendants. He cites the holding in United
States v. Jacobsen, 466 U.S. 109, 113 (1984): “A ‘seizure’ of property occurs
when there is some meaningful interference with an individual's possessory
interests in that property.” Stormo believes this would include actions such as
defendants taking photos of his property or making false statements about the
property. Docket 141 at 11. Even if Stormo’s understanding of the word seizure
was correct, these actions did not interfere with his possessory interest.
Therefore, his motion to compel is denied as it concerns defendants’ use of the
word seizure.
C.

Defendants Did Not Answer in an Obstructive Manner

Stormo moves this court to compel defendants to answer in an
unobstructive manner. He argues that defendants’ answered in an obstructive
manner “by interjecting conclusory statements, ipse dixit, extraneous opinion,
irrelevancies and other non-responsive statements in their answers to the
interrogatories.” Docket 141 at 12. As an example, defendants stated in one
answer that the boom trailer was in disrepair. Id. Stormo argues that this is
“not a fact observed with senses,” defendants are not qualified to make the
comment, and the comment was irrelevant. Id. The court finds neither this nor
any other response is obstructive in the manner Stormo complains of here.

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Therefore, Stormo’s motion to compel is denied as it concerns the general
obstructiveness of defendants’ answers.
D.

Defendants Did Not Answer in the “Wrong Form”

Stormo moves this court to compel defendants to answer his
interrogatories in the form he requests. The basis of this argument is that
Stormo believes defendants have not provided all of the material facts to
respond to his interrogatories. As discussed above, the examples Stormo gives
rely on his unfounded assumption that there are facts that defendants are not
disclosing in order to hide their various misdeeds. The responses also do not
disclose the facts as Stormo believes them to be. Defendants are not required
to do more than they have done. Therefore, Stormo’s motion to compel is
denied as it concerns the form of defendants’ responses.
E.

Defendants’ Answers Were Not Contradicted Elsewhere

Stormo moves this court to compel defendants to provide new responses
because their responses to his interrogatories contradict other information they
provided. The court finds that defendants’ responses do not contradict each
other. As an example, Stormo states, “Defendants say no one had custodial
responsibility for the lift and yet in an email to Shawn Tornow the Director of
Public Works Cotter (Bates 839 - See Appendix E) says he will take possession
of the ‘abandoned utility truck.’ ” Docket 141-3 at 4. Stormo provides the
email. It does not, however, say that Mark Cotter “will take possession” of
anything. Docket 141-6. Further, the answers are consistent with the
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documents because the email describes the place where the City says the lift
has been stored. None of the other examples shows a contradiction between
defendants’ answers and other documents or discovery responses. Therefore,
Stormo’s motion to compel is denied as it concerns defendants’ allegedly
contradictory responses.
F.

Defendants’ Responses Were Not Misdirection

Stormo moves this court to compel defendants to provide new responses
because their answer to interrogatory 1 is “incomplete and attempts
misdirection.” Docket 141-3 at 4. This argument is a mixture of other
arguments and minor issues. Stormo claims that the answer to interrogatory 1
is not responsive because the City of Sioux Falls as an entity cannot operate
the lift. Id. A human must have done that. Id. This is duplicative of the
adequate inquiry argument in section A. As discussed above, the court does
not find defendants’ inquiry to be inadequate. Therefore, Stormo’s motion to
compel is denied as it concerns defendants’ alleged attempts at misdirection.
G.

Defendants’ Responses Do Not Interject Inadmissible Facts

Stormo moves this court to compel defendants to provide new responses
to his interrogatories because their answers contain inadmissible facts. As an
example, Stormo claims that Tornow is employed by the city. Id. at 11. He
claims that, while Tonrow may not be going to work or working on the issue at
hand, there is no evidence that he is not currently employed by the city
because it has not been published on the City’s website. Id. The court does not
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find this or any other response objected to on the same grounds inadequate in
any way. Therefore, Stormo’s motion to compel is denied as it concerns
defendants’ “interjection of inadmissible facts.”
H.

Stormo’s Request That the Court Sanction Defendants Is
Denied

Stormo moves the court to hold defendants in contempt, sanction
defendants in numerous ways, and grant him a default judgment. Docket 141
at 16-21. Because the court finds most of defendants’ responses adequate and
none of them sanctionable, the court declines to sanction defendants or grant
Stormo this relief.
I.

Defendants’ Responses to Interrogatories 4 and 7 Are
Inadequate

Stormo moves this court to compel defendants to respond to his
interrogatories by doing more than directing him to documents. Defendants
claim that they have the right under Federal Rule of Civil Procedure 33(d) to
respond by referring to documents they produced to Stormo. Docket 152 at 2.
Under the Federal Rules,
If the answer to an interrogatory may be determined by examining,
auditing, compiling, abstracting, or summarizing a party's
business records (including electronically stored information), and
if the burden of deriving or ascertaining the answer will be
substantially the same for either party, the responding party may
answer by:
(1) specifying the records that must be reviewed, in sufficient detail
to enable the interrogating party to locate and identify them as
readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to
examine and audit the records and to make copies, compilations,
abstracts, or summaries.
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Fed. R. Civ. P. 33(d).
Interrogatory 4 asked defendants to
“Identify all persons who are likely to have personal knowledge of
any fact alleged by Plaintiff and state the subject matter of the
personal knowledge possessed by each such person. A complete
answer would consider allegation of facts in the complaint or
subsequent amendments, supplements or motions, regardless of
whether said personal knowledge is alleged to support, or
contradict or is neutral to the alleged fact.”
Docket 141-3 at 7. Defendants responded by merely stating, “See Documents
submitted in Request to Produce[.]” Stormo argues that this does not meet the
requirements of Rule 33(d).
Interrogatory 7 asks defendants to “identify each and every material
reason including ordinances, facts, policies, statutes, and instructions from
management which justified each and every enforcement actions taken again
[sic] Plaintiff.” Id. at 12. Defendants’ response merely states, “Information has
already been provided and is included in the documents provided in the
Request for Production of Documents.” Id.
Defendants did not comply with Rule 33. They did not “specify[] the
records that must be reviewed, in sufficient detail to enable the interrogating
party to locate and identify them as readily as the responding party could . . . .”
Fed. R. Civ. P. 33(d). In fact, defendants did not even attempt to specify the
records at all. This is inadequate. Therefore, Stormo’s motion to compel is
granted as it concerns defendants’ failure to specify the documents that
respond to interrogatories 4 and 7.
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J.

Defendants’ Response to Interrogatory 2 Is Inadequate

Stormo moves this court to compel defendants to provide an adequate
response to interrogatory 2. Docket 141-3 at 5. Interrogatory 2 states, “For
each and every enforcement activity as defined herein, which is within the
scope of this interrogatory, identify each and every person who materially
participated in the enforcement activity and provide a full description of their
role in the enforcement activity.” Id. Defendants responded: “Shawna
Goldammer - Zoning Enforcement Manager[,] R. Shawn Tornow- Assistant City
Attorney[, and] Rich Steffen Street Maintenance Supervisor[.]” Stormo argues
that he asked for roles, but these are titles. Id. at 6. He wanted to know what
duty each individual performed such as supervised other employees or took
pictures, etc. Id. He provided examples in his request. Docket 141-4 at 2-7.
Defendants’ response is inadequate. While Stormo’s suggestions or
instructions are beyond the pale (five pages long for interrogatory 2),
defendants’ response to Stormo’s asking for too much was to give him too little.
Apparently, defendants know the answer to Stormo’s question, they listed the
employees who worked on enforcement against Stormo, and they know what
those employees generally did in relation to that enforcement. Even worse,
because defendants only listed three employees, listing their duties would have
been extremely simple. The decision not to offer that information was
unreasonable, and their response is inadequate. Defendants must provide
Stormo with the general duties of the employees who worked on his
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enforcement actions. Therefore, Stormo’s motion to compel is granted as it
concerns defendants’ response to interrogatory 2.
V.

Defendants’ Motion For Protective Order (Docket 144) Is Granted
Defendants move this court to grant a protective order. Docket 144. A

party may move for a protective order under Fed. R. Civ. P. 26(c)(1). For good
cause, the court may issue a protective order forbidding the discovery. Fed. R.
Civ. P. 26(c)(1). Stormo seeks to depose defendant Mayor Huether. Docket 144.
Defendants argue that they should be granted a protective order because
Mayor Huether is a high ranking government official, has no personal
knowledge of the facts of the case, and was not mayor at the time relevant to
this case. Stormo contends that Mayor Huether is not a high ranking official.
He also argues that Mayor Huether has not shown he has no personal
knowledge of the claims, that the information he seeks is not available from a
lower ranking employee, and the deposition would not interfere with
government administration.
A.

Mayor Huether Is a High Ranking Official

The parties disagree whether Mayor Huether is currently a high ranking
official. Mayor Huether is the mayor of the City of Sioux Falls. Docket 144.
Other district courts have found that a mayor is a high ranking government
official. Buono v. City of Newark, 249 F.R.D. 469 (D.N.J. 2008). This court
agrees. As mayor, Huether has greater duties and time constraints than an
average witness. In re U.S., 197 F.3d 310, 313 (8th Cir. 1999) (quoting In re
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U.S. (Kessler), 985 F.2d 510, 512 (11th Cir. 1993)). Mayor Huether is the type
of official who “would spend ‘an inordinate amount of time tending to pending
litigation’ ” if the courts did not limits these depositions. Lederman v. New York
City Dep't of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (quoting
Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)). This court finds
that he is a high ranking official for purposes of the protective order.
B.

Stormo Has Not Shown Exceptional Circumstances

“Fed. R. Civ. P. 26(c) requires that ‘good cause’ be shown for a protective
order to be issued. The burden is therefore upon the movant to show the
necessity of its issuance . . . .” Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d
1204, 1212 (8th Cir. 1973). But, in situations with a high ranking government
official, courts place the burden on the party seeking discovery to show
“exceptional circumstances.” In re U.S., 197 F.3d at 314 (citing Kessler, 985
F.2d at 512-13). Generally, “the standard for issuance of a protective order is
high. A motion seeking to prevent the taking of a deposition is regarded
unfavorably by the courts, and it is difficult to persuade a court to do so.” Raml
v. Creighton Univ., No. 8:08CV419, 2009 WL 3335929, at *2 (D. Neb. Oct. 15,
2009) (citing Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D.
431, 434 (M.D.N.C. 2001). Stormo argues that defendants failed to satisfy the
burden, but the burden is on him to show exceptional circumstances.
In re U.S. concerns a motion to quash subpoenas directing the US
Attorney General and Deputy Attorney General to testify in court. Lee, the
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defendant in the criminal case, sought discovery in support of the motion and
subpoenaed the officials. In re U.S., 197 F.3d at 311. After stating that the
officials were “high government officials,” the court explained that Lee must
establish at a minimum that the Attorney General and the Deputy
Attorney General possess information essential to his case which is
not obtainable from another source. This means both that the
discovery sought is relevant and necessary and that it cannot
otherwise be obtained. Without establishing this foundation,
‘exceptional circumstances’ cannot be shown sufficient to justify a
subpoena.
Id. at 314 (quoting Kessler, 985 F.2d at 512-13).
Other district courts have cited this case when determining whether to
grant an order to protect a high ranking government official from being
deposed. See S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep't Bd. of
Commissioners, No. 4:10-CV-2163 CEJ, 2011 WL 1899211 (E.D. Mo. May 19,
2011). In Lenderman, the district court stated that the party seeking the
deposition “must establish that: (1) the deposition is necessary to obtain
relevant information that cannot be obtained from any other source, and (2)
that the deposition will not significantly interfere with the ability of the official
to perform his or her governmental duties.” Id. at *2. The court, however, only
discussed what the party seeking the protective order failed to prove.
Other Circuits also require this showing from parties seeking to depose
government officials. See Lederman, 731 F.3d at 203 (“to depose a high-ranking
government official, a party must demonstrate exceptional circumstances
justifying the deposition”); Atlanta Journal & Constitution v. City of Atlanta Dep't
20

of Aviation, 175 F.R.D. 347 (N.D. Ga. 1997) (noting the policy that parties
seeking the testimony of highly placed federal government officials must
demonstrate that there is some extraordinary circumstance or special need).
1.

Mayor Huether Does Not Have Personal Knowledge

Stormo has not shown that Mayor Huether has personal knowledge of
his claims. Stormo is correct to say that Mayor Huether only states in his
affidavit that he has no knowledge concerning one of Stormo’s surviving claims,
rather than all of Stormo’s claims. Stormo argues that Mayor Huether has
personal knowledge relating to his claims and that Mayor Huether was
personally involved in code enforcement, Docket 150 at 3, or encouraged
subordinates to violate Stormo’s rights. Id. at 5. But it is undisputed that
Mayor Huether was not mayor when Stormo’s lift was seized in 2009. The
remaining claims in Stormo’s amended complaint concern things that
happened before 2010. All of the allegations involve matters that occurred
before Mayor Huether was elected, and Stormo only named Mayor Huether as a
defendant in his capacity as mayor. The only incident alleged in the amended
complaint that occurred after Mayor Huether’s election was a disagreement
between the City of Sioux Falls and Stormo’s mother. Docket 34 at ¶¶ 142,
154, 161, 198. This is not relevant to any of Stormo’s surviving claims. As a
result, it does not support the argument that Mayor Huether has personal
knowledge of the matter at hand.

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Stormo argues that Mayor Huether did not discipline any of the
employees who violated his rights before Mayor Huether was elected. Docket
150 at 3, 4. But none of Stormo’s remaining claims allege Mayor Huether’s
liability for failing to punish subordinates for alleged violations.
Stormo argues that Mayor Huether did not change city policy or his own
actions when Stormo filed his complaint. Id. at 4-5. But actions by a defendant
that were taken after a lawsuit is filed are not the basis for a claim in the
amended complaint and are likely not admissible evidence. While Stormo’s
second amended complaint added claims concerning wiretapping, fraud,
witness tampering and retaliation, none of those allegations addressed
city-wide policies. Therefore, evidence of Mayor Huether’s alleged failure to alter
city policies after Stormo filed his complaint is not relevant and does not show
that Mayor Huether has personal knowledge of the matter at hand.
Stormo also argues that Mayor Huether did not put certain procedures in
place after he became mayor. The court has the same response: this does not
pertain to any of Stormo’s remaining claims and does not support allowing his
deposition of Mayor Huether.
Stormo’s second amended complaint states claims arising from
incidences that occurred while Mayor Huether was in office. He claims that
City officials have violated federal wiretapping and communications laws by
their actions in relation to this lawsuit. Docket 34 at 364-67, 376-79. Stormo
does not allege that Mayor Huether was personally involved in these actions,
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only that he was mayor while they happened. This shows that Mayor Huether
is unlikely to have first-hand knowledge of the matter and suggests that
another deponent could provide the same, if not better, information without
interfering with government operations at such a high level.
Stormo argues that defendants cannot allege Mayor Huether has no
personal knowledge of the matter at hand because they have not interviewed
him. Docket 150 at 4. He claims that he submitted an interrogatory that asked
defendants “to name persons who gave management instructions and persons
with knowledge of material facts regarding this matter.” Id. Stormo attached
interrogatory questions that do not make this request. See Docket 150-1.
Stormo also argues that he asked who defendants interviewed in order to
respond to that interrogatory. Docket 150 at 4. He claims this should have
produced a list of people who potentially had knowledge of the matters
surrounding his claim. The interrogatory Stormo attached, however, asks for
the identity of “every person contributing substantive information to or
materially participating in the answering of interrogatories or identifying
Documents satisfying a discovery request for this case and a description of the
nature and subject matter of their contribution.” Docket 150-2. The fact that
Mayor Huether was not on this list is evidence that he does not have knowledge
of these matters because he was unable to contribute “substantive information”
or materially participate in answering the questions or identifying documents.

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Because of these reasons, Stormo has failed to show the “exceptional
circumstances” necessary to allow him to depose Mayor Huether.
2.

It Is Immaterial That Mayor Huether’s Affidavit Did Not
Propose Alternative Deponents or Present Evidence That
His Deposition Would Interfere With Government
Business

Stormo also argues that the protective order should not be granted
because defendants’ motion and Mayor Huether’s affidavit did not propose a
different deponent and did not offer evidence that the deposition would
interfere with the administration of the government. Stormo argues that Mayor
Huether is liable because he oversaw allegedly illegal acts. But the court finds
that the people who allegedly committed those acts could be deposed, and they
are all lower level government officials. Also, Stormo attached a list of people to
his opposition who provided information to answer his interrogatories. He is
aware who has information regarding the matter at hand. These people are
much more likely than Mayor Heuther to have the information Stormo seeks.
Stormo argues that defendants’ motion and Mayor Huether’s affidavit did
not present evidence that the deposition would interfere with the
administration of the government. This is self-evident. Mayor Huether is the
highest ranking official in the municipal government for the largest city in the
state and taking a day to be deposed would interfere with the city’s business.
Therefore, the court agrees with defendants that this would interfere with the
administration of city government.

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For the reasons above, defendants motion for a protective order is
granted.
CONCLUSION
Stormo moves this court to modify its summary judgment order (Docket
120) and compel defendants to produce or reproduce discovery (Docket 123;
Docket 139; Docket 141). He argues that defendants’ responses are inadequate
for a number of reasons. The court denies his motion to modify the summary
judgment order and grants in part and denies in part his motions to compel.
Defendants move for an order protecting Mayor Huether from being deposed.
Because the court finds that Mayor Huether is a high ranking government
official without personal knowledge of the matter, this motion is granted.
Therefore, it is ORDERED
1. Stormo’s motion to modify the summary judgment order (Docket 120)
is denied.
2. Stormo’s motion to compel production of documents (Docket 123) is
granted to the extent it concerns claims raised in his amended
complaint that survive. Defendants are ordered to re-evaluate their
responses to document requests 8, 9, 15, 21, 36, 37, 45, 46, 53, and
54 and supplement them if necessary.
3. Stormo’s motion to compel (Docket 139) is granted to the extent it
requests an index for discovery production in the manner discussed

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in this opinion and denied to the extent it requests production of
documents in their native format and production of metadata.
4. Stormo’s motion to compel (Docket 141) is denied to the extent it
concerns the adequacy of defendants’ inquiry into discovery requests,
the meaning of the word seizure, the obstructive manner of
defendants’ answers, the “form” of defendants’ answers, the
defendants’ attempts to misdirect, defendants’ injections of
inadmissible facts, and granted to the extent it requests defendants
do more than direct him to produced documents in response to
interrogatories 4 and 7 and relates to the adequacy of defendants’
response to interrogatory 2.
5. Stormo’s requests for default judgment and sanctions are denied.
6. Defendants’ motion for a protective order (Docket 144) is granted.
Dated February 19, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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