Stormo v. City of Sioux Falls et al

Filing 96

ORDER granting in part and denying in part 75 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 8/31/2015. (CG)

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 ON PLAINTIFF’S
MOTION TO COMPEL
[DOCKET NO. 75]

Defendants.

INTRODUCTION
This matter is before the court on plaintiff Eric Stormo’s second amended
complaint alleging claims against defendants under various theories. See
Docket No. 34. Following the district court’s resolution of an earlier motion to
compel by Mr. Stormo (see Docket No. 60 resolving motion at Docket No. 30),
Mr. Stormo now files another motion to compel defendants to produce certain
documents as to which defendants claim privilege. See Docket No. 75.
Defendants resist Mr. Stormo’s motion. See Docket No. 78. Mr. Stormo’s
motion was referred to this magistrate judge for resolution pursuant to 28
U.S.C. § 636(b)(1)(A) and the October 16, 2014 standing order of the Honorable
Karen E. Schreier, district judge.

FACTS
In order to understand what claims are before the court, it is necessary
to understand the procedural history of this case. Mr. Stormo filed his original
complaint with the court on April 2, 2012 asserting a wide range of claims
against defendants spanning a long period of time. See Docket No. 1.
Defendants rather quickly filed a motion for summary judgment in their favor
on April 13, 2012, arguing that Mr. Stormo’s claims were barred by the
applicable statute of limitations and that Mr. Stormo had failed to give notice of
the suit to local governmental entities. See Docket No. 16.1
While briefing was still ongoing on the summary judgment motion and
before the court had ruled on that motion, Mr. Stormo filed a motion to amend
his complaint. See Docket No. 26. This motion went unopposed by
defendants.
The district court granted in part and denied in part defendants’
summary judgment motion. See Docket No. 27. The court found that the
statute of limitations had run on all but a handful of Mr. Stormo’s claims. Id.
Specifically, as to Mr. Stormo’s constitutional/civil rights claims, the court
granted summary judgment on all claims except one: the claim that
defendants or their agents engaged in a warrantless search and seizure of
Mr. Stormo’s personal property in violation of Mr. Stormo’s constitutional

Defendants’ original motion was a motion to dismiss for failure to state a
claim under FED. R. CIV. P. 12(b)(6). However, because defendants made
reference to materials outside the pleadings, the court converted the motion to
one for summary judgment. See Docket No. 20.
1

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rights when they entered his property on April 2 or 3, 2009 and seized a lift (a
piece of construction equipment). Id. at p. 7.
As to Mr. Stormo’s state law claims asserted under the court’s pendent
jurisdiction, the court likewise found that most of these claims were barred by
the statute of limitations. Id. at p. 8. The only claims to survive were
Mr. Stormo’s claims that defendants trespassed upon his property and
converted his property on April 2 or 3, 2009 when they seized his lift. Id. at
p. 9. Also, Mr. Stormo’s claim that defendants engaged in a civil conspiracy to
commit the aforementioned trespass and conversion survived. Id. at p. 10.
The court rejected defendants’ lack-of-notice argument as to Mr. Stormo’s one
remaining civil rights claim, and found a material issue of fact existed on the
question of notice as to the remaining pendent state law claims. Id. at
pp. 11-12.
The court granted Mr. Stormo’s motion to amend his complaint—to the
extent the amended complaint was consistent with the court’s ruling on
defendants’ summary judgment motion. Id. at pp. 12-13. Thereafter,
Mr. Stormo moved to amend his complaint a second time. See Docket No. 29.
Again, defendants never responded to the motion. Therefore, the court granted
Mr. Stormo’s motion and he subsequently filed a second amended complaint.
See Docket No. 34.
Mr. Stormo’s second amended complaint is a 71-page tome that, despite
the district court’s summary judgment ruling, continues to assert facts and
claims that fall outside the statute of limitations period. See Docket No. 34. It
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is clear Mr. Stormo made no attempt to incorporate the court’s summary
judgment ruling into the substance of his complaint, but rather kept his
original complaint largely intact and simply expanded it to add new facts,
allegations and claims. Compare Docket No. 1 with Docket No. 34. Generally,
Mr. Stormo’s claims consist of allegations that defendants have damaged him
through engaging in a pattern or practice of conduct directed at Mr. Stormo on
the basis of his status as a landlord and landowner. See Docket No. 34.
Mr. Stormo served defendants with various discovery requests, followed
by a motion to compel filed with the court when Mr. Stormo disagreed with
some of defendants’ responses to his discovery requests. The district court
resolved that motion to compel by granting some portions of it and denying
other portions. See Docket No. 60.
Mr. Stormo’s request for the production of documents number 9 asked
for “any and all investigative reports, including internal investigation of
complaints resulting from any of the incidents named in Plaintiff’s complaint.”
Id. at p. 4. The defendants objected as overbroad and asserted a claim of
privilege. Id. The court sustained the objection, ordered defendants to produce
the requested documents insofar as they related to incidents involving
Mr. Stormo or his property, and to prepare and provide to Mr. Stormo a
privilege index regarding any withheld or redacted information. Id.
Mr. Stormo’s request number 21 sought the following information:
All records documenting access and the results of access to NCIC,
NICS, CJIS, LEO, N-Dix or other nationally, regionally or locally
operated law enforcement data repositories where the inquiry was
directed at Plaintiff, Plaintiff’s wife or Plainitff’s parents, their
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property, their finances, their businesses or their vehicles by any
City of Sioux Falls law enforcement officer, official, employee,
agent, contractor, subcontractor or other party acting at the
request of or on behalf of one of the previously name [sic] parties.
Id. at p. 7. As to this request, too, the district court ordered defendants to
produce documents not privileged, and to prepare a privilege log as to
documents defendants claimed were privileged and produce the log to plaintiff.
Id.
Defendants did as the court requested, producing an initial privilege log
(see Docket No. 75-1), then an amended privilege log (see Docket No. 78-3), and
finally a second amended privilege log (see Docket No. 91-1). The second
amended privilege log is the log the court addresses since it is the most
complete and detailed of the logs produced.
DISCUSSION
The court ordered defendants to produce the withheld documents to the
court for in camera inspection. The court has now compared those documents
against defendants’ second amended privilege log. The following rulings are
made:
A.

City’s Privilege Log Documents 1-22
1.

Scope of Attorney-Client Privilege

City documents 1-22 are letters or emails from defendants’ current
counsel, or from city attorneys or legal assistants in the city attorney’s office to
various agency employees within the city. These documents either give legal
advice from the attorney to the non-lawyer, or they discuss responses the city
is making or plans to make to various matters touching on plaintiff’s lawsuit or
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the underlying city citations that were pending in state court, or they ask for
information to provide to plaintiff in one of the two legal forums. Defendants
assert these documents are protected by the attorney-client privilege.
Rule 501 of the Federal Rules of Evidence states the following about
claims of privilege in federal court actions:
The common law—as interpreted by United States courts in
the light of reason and experience—governs a claim of privilege
unless any of the following provides otherwise:
●

the United States constitution;

●

a federal statute; or

●

rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of decision.
See FED. R. EVID. 501.
Plaintiff bases his claims on 42 U.S.C. § 1983, so jurisdiction in his case
is based on the presence of a federal question under 28 U.S.C. § 1331.
Therefore, federal law, not state law, supplies the rule of decision. Since
federal law supplies the rule of decision, state law does not govern the question
of privilege. See FED. R. EVID. 501; Hollins v. Powell, 773 F.2d 191, 196 (8th
Cir. 1985). Federal law governs federal claims even if state law claims are
asserted in the same action pursuant to the court’s supplemental jurisdiction.
Mem. Hosp. v. Shadur, 664 F.2d 1058, 1061 n.3 (7th Cir. 1981).
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449
U.S. 383, 389 (1981). The privilege exists for the protection of the client and
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shields “confidential communications between a client and [his or] her attorney
made for the purpose of facilitating the rendition of legal services to the client.”
United States v. Yielding, 657 F.3d 688, 706-07 (8th Cir. 2011).
Proposed Rule of Evidence 503 was never enacted by Congress, but the
Eighth Circuit has said it provides “a useful starting place for an examination
of the federal common law of attorney-client privilege.” See Id. at 707 (quoting
In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 915 (8th Cir. 1997)
(internal quotation omitted)). Rule 503 provides in pertinent part as follows:
(a) Definitions. As used in this rule:
(1)
A “client” is a person, public officer, or corporation,
association, or other organization or entity, either public or private,
who is rendered professional legal services by a lawyer, or who
consults a lawyer with a view to obtaining professional legal
services from him [or her].
(2)
A “lawyer” is a person authorized, or reasonably
believed by the client to be authorized, to practice law in any state
or nation.
(3)
A “representative of the lawyer” is one employed to
assist the lawyer in the rendition of professional legal services.
(4)
A communication is “confidential” if not intended to be
disclosed to third persons other than those to whom disclosure is
in furtherance of the rendition of professional legal services to the
client or those reasonably necessary for the transmission of the
communication.
(b) General rule of privilege. A client has a privilege to refuse to
disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client, (1) between
[themself] or [their] representative and [their] lawyer or [their]
lawyer’s representative, or (2) between their lawyer and the
lawyer’s representative, or (3) by [themselves] or [their] lawyer to a
lawyer representing another in a matter of common interest, or (4)
between representatives of the client or between the client and a
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representative of the client, or (5) between lawyers representing the
client.
(c) Who may claim the privilege. The privilege may be claimed
by the client, . . . The person who was the lawyer at the time of the
communication may claim the privilege but only on behalf of the
client. His [or her] authority to do so is presumed in the absence
of evidence to the contrary.
See Proposed FED. R. EVID. 503.2
The attorney-client privilege acts to seal not only the lips of the attorney,
but also the lips of any staff persons employed by or working with the attorney.
Id. Thus, emails to legal assistants in an attorney’s office from the client, and
emails to the client from the legal assistant, are protected by the privilege if
they otherwise fit within the attorney-client privilege. Id. Here, the court has
no trouble reaching the conclusion that the attorney-client privilege protects
the documents withheld from discovery and BATES stamped 1-22.
A city attorney can clearly be an “attorney” within the meaning of the
privilege. Hollins, 773 F.2d at 196-97. Also, employees within city
departments who have conversations with the city attorney or their legal
assistant for purposes of obtaining legal advice are clearly “clients” within the
meaning of the privilege. Id.; see also Proposed FED. R. EVID. 503 (defining
“client” as “person, or public officer”). And the subject of the communications
in documents 1-22 are clearly for the purpose of seeking or giving legal advice.
The court concludes the attorney-client privilege protects these documents.
Proposed Rule 503 uses exclusively male pronouns—“him” and “his.” This
author has changed the pronoun to a generic “their” or “themselves” in order
not to exclude one-half of all practicing lawyers and clients from the scope of
the rule.
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2.

Waiver of the Attorney-Client Privilege

Plaintiff asserts that defendants have waived the attorney-client
privilege by insufficiently asserting that privilege in response to discovery
requests and by insufficiently supporting their claim of privilege once it was
asserted. Thus, plaintiff alleges defendants have implicitly, rather than
explicitly, waived.
Rule 502 of the Federal Rules of Evidence was adopted in 2007 and
addresses waiver of the attorney-client privilege. That rule states in pertinent
part as follows:
(b) Inadvertent Disclosure. When made in a federal proceeding or
to a federal office or agency, the disclosure does not operate as a
waiver in a federal or state proceeding if:
(1)

the waiver is inadvertent;

(2)
the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
(3)
the holder promptly took reasonable steps to rectify
the error, including (if applicable) following Federal Rule of Civil
Procedure 26(b)(5)(B).
See FED. R. EVID. 502(b).
Defendants’ actions took place in “a federal proceeding,” therefore Rule
502(b) applies. Defendants “took reasonable steps to prevent disclosure,”
including withholding the documents and invoking the privilege. Finally,
defendants followed Federal Rule of Civil Procedure 26(b)(5)(B), though their
first effort in this regard was definitely lacking.
Defendants’ first privilege log identified the date and time (if appropriate)
of each of the documents being withheld as well as the author of the document
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and the person to whom the communication was sent. See Docket No. 75-1.
Four of the documents listed in the log were authored by city attorneys Shawn
Tornow or Paul Bengford, persons who were known to plaintiff to be city
attorneys. Id. Seven documents were written by Kathy Rockwell, a legal
assistant in the city attorney’s office, though Ms. Rockwell’s title was not given.
Id. The emails were sent to Shawna Goldammer, the Zoning Enforcement
Manager; LuAnn Ford in the Department of Health; Kevin Smith, Assistant
Director of Planning and Zoning; Kelly Boysen, Property Maintenance Manager;
and Dave McElroy. Id. Titles of the recipients of Ms. Rockwell’s email were not
given. Id. Other entries are similarly generally identified. Id. A number of the
documents were written by city employees to Ms. Rockwell. Id. The last three
documents identified in defendants’ first log were authored by Gary Thimsen,
present counsel for defendants in this litigation. Id. Two of Mr. Thimsen’s
letters were written to a city attorney, Paul Bengford. Id.
After this first effort, defendants filed an amended privilege log. See
Docket No. 78-3. This amended log expanded on the first by identifying
documents through BATES stamped numbers, identifying the position or title
held by the authors and recipients of various documents, expanded the
description of the document, and identified the grounds on which the
document was being withheld. Id.
Defendants produced a second amended privilege log at the court’s
request which, in addition to the information presented in the amended log,

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also tied each document being withheld to a particular discovery request being
made by plaintiff. See Docket No. 91-1.
Rule 26(b)(5) of the Federal Rules of Civil Procedure, to which FED. R.
EVID. 502(b) makes reference, provides:
(5) Claiming Privilege or Protecting Trial-Preparation
Materials.
(A) Information Withheld. When a party withholds
information otherwise discoverable by claiming that the
information is privileged or subject to protection as trialpreparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed—
and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the
claim.
See FED. R. CIV. P. 26(b)(5).
Defendants satisfied Rule 26(b)(5) eventually. Their first effort failed to
give plaintiff a description of the nature of the document and failed to identify
the persons involved by title. However, plaintiff clearly knows defendant
Tornow is a lawyer and that Mr. Thimsen is a lawyer. The court presumes
plaintiff knows the titles or roles many of the other persons identified in the
documents too.
And even if defendants’ first privilege log was insufficient, they clearly
were not intending to waive the attorney-client privilege. They explicitly
invoked the privilege and took reasonable steps to ensure nondisclosure. That
is all FED. R. EVID. 502(b) requires. Following their initial efforts, defendants
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twice amplified the detail in their log to provide plaintiff with the information
needed to assess the claim of privilege. The court rejects plaintiff’s assertion
that defendants have inadvertently waived the attorney-client privilege by
failing to prepare an adequate privilege log. The court denies plaintiff’s motion
to compel as to documents BATES stamped 1-22.
B.

City’s Privilege Log Documents 23-41
City documents BATES stamped 000023-41 are documents involved in a

disciplinary matter involving defendant Tornow before the South Dakota State
Bar Disciplinary Board. They arose out of a formal complaint against Tornow
filed by plaintiff’s mother, Rosalyn Stormo. Defendants assert these
documents are confidential pursuant to SDCL § 16-19-99.
Section 16-19-99 provides that all proceedings involving allegations of
misconduct or disability of an attorney shall be kept confidential, subject to
various exceptions that do not apply here.3 See SDCL § 16-19-99. All
participants must keep the proceedings confidential and failure to do so by any
person shall subject that person to contempt by the South Dakota Supreme
Court. Id.

One of the exceptions to the required confidentiality is if the disciplinary
board files a formal complaint against an attorney with the South Dakota
Supreme Court. See SDCL § 16-19-99. There was a disciplinary complaint
against defendant Tornow that did become public through this exception. See
In re Discipline of Tornow, 2013 S.D. 61, 835 N.W.2d 912. However, this
public disciplinary matter against Tornow arose out of a complaint filed against
him by the City Attorney for the City of Sioux Falls, not the complaint filed by
plaintiff’s mother. Therefore, the proceedings involving the complaint filed by
plaintiff’s mother are still confidential under § 16-19-99.
3

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Plaintiff has not demonstrated that any of the exceptions to
confidentiality under § 16-19-99 apply in this case and none appear to be
applicable to the court. Accordingly, the court agrees with defendants that the
disciplinary matters arising out of Rosalyn Stormo’s complaint against Tornow
are protected and confidential. Defendants will not be required to turn these
documents over to plaintiff.
C.

City City’s Privilege Log Documents 42-94
City documents BATES stamped 42-63 and 68-73 are all public records

apparently filed in the lawsuit against either plaintiff or his mother, Rosalyn
Stormo, in state court which form part of the predicate for plaintiff’s claims in
this lawsuit. The documents were either authored by plaintiff or his mother
and filed in a public docket, or they were authored by defendants and filed in a
public docket, or they were authored by the state court judge and filed in a
public docket. Document BATES stamped 74 is a citation to Rosalyn Stormo
issued by the City of Sioux Falls which apparently was bound up in this state
court lawsuit.
Defendants claim the privilege of SDCL § 16-19-99, discussed above, for
these documents. While the documents may have been filed with the
disciplinary board for purposes of either supporting or refuting Rosalyn
Stormo’s disciplinary complaint against Tornow, the documents themselves
originated with a public state court docket. Simply because they later were
entered as exhibits in a protected proceeding does not render the documents

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themselves confidential. The court orders defendants to produce documents
BATES stamped 42-63, and 68-74.
Documents BATES stamped 64-66 are simply copies of selected portions
of the Sioux Falls Code of ordinances. Those are not protected and must be
produced.
Document BATES stamped 67 appears to be an explanation provided by
Rosalyn Stormo to accompany an exhibit of a CD she provided to the
disciplinary board ostensibly of a recording of a hearing that took place in state
court. The document is not protected by SDCL § 16-19-99, the only ground
urged by defendants. Documents BATES stamped 75-77 appear to be exhibits
submitted to the disciplinary board by either Rosalyn Stormo or Tornow. They
consist of, respectively, a photograph of a vehicle in front of a structure, an
invoice to Rosalyn from the city, and a copy of a notice of violation of city
ordinance from the city to Rosalyn. These documents are not inherently part of
the disciplinary action. They do not acquire protection just because they were
submitted as exhibits in that action. Defendants shall produce documents
BATES stamped 67 and 75-77.
Document BATES stamped 78-81 are public opinions issued by state
court judges in the underlying state court action giving rise to plaintiff’s claims
herein. They are not protected by SDCL § 16-19-99. Defendants shall produce
these documents.

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Documents BATES stamped 82-91 are documents publicly filed in a
small claims action brought by the city against Rosalyn Stormo. These are not
protected. Defendants shall produce these documents.
Documents BATES stamped 92-94 are copies of the procedural rules
applicable to disciplinary actions before the state bar disciplinary board. These
are public rules available to anyone. Defendants shall produce these
documents.
Documents BATES stamped 95-103 are police summary reports from the
Sioux Falls Police Department concerning various juveniles. Each document is
stamped with the statement: “This report is a confidential record of the Sioux
Falls Police Dept. This report, in accordance with SD state law, cannot be
disclosed except to law enforcement personnel.” Defendants provided copies of
these documents to plaintiff with the names and identifying information of the
juveniles redacted.
These documents do not appear to be relevant to the claims plaintiff has
asserted in this case in any way. On that basis alone the court will not require
defendants to produce unredacted versions of the documents. But in addition,
because the documents deal with juveniles, none of whom appear to be related
in any way to plaintiff or plaintiff’s claims, the information about the juveniles
named in the documents is deserving of confidentiality absent some showing of
extraordinary need by plaintiff. The court notes that plaintiff is apparently
satisfied with having received the redacted version of documents 95-103 as he
stated that “responsive documents [have been] provided [by defendants] and
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[documents 95-103 are] not in dispute at this time.” See Docket No. 92 at p.1;
Docket No. 95 at p.7. Accordingly, plaintiff’s motion to compel as to
documents 95-103 is denied as moot.
CONCLUSION
Plaintiff Eric Stormo’s motion to compel [Docket No. 75] is granted in
part and denied in part as follows:
●

the motion is DENIED as to documents BATES stamped 1-41;

●

the motion is GRANTED as to documents BATES stamped 42-94;

●

the motion is DENIED AS MOOT as to documents BATES stamped

95-103.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson

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v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED August 31, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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