Danielson v. Huether et al

Filing 84

ORDER granting in part 58 Motion for Protective Order; denying 62 Motion for Reconsideration ; and granting 83 Motion to Amend Objections to the Defendant's Motion fora Protective Order. Signed by Chief Judge Roberto A. Lange on 6/3/2020. (CLR) Modified on 6/3/2020 delivered to Plaintiff via USPS (CLR).

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

BRUCE DANIELSON,

4;I8-CV-04039-RAL

Plaintiff,
ORDER DENYING MOTION FOR
RECONSIDERATION AND GRANTING IN
PART MOTION FOR PROTECTIVE

vs.

MIKE HUETHER,

ORDER

Defendant.

In December 2018, this Court entered an Opinion and Order Granting in Part Defendants'

Motion to Dismiss. Doc. 22. In that 44-page Opinion and Order, this Court explained why pro se
Plaintiff Bruce Danielson had a elaim under 42 U.S.C. § 1983 for alleged First Amendment

retaliation against former Sioux Falls Mayor Defendant Michael Huether and why Danielson had
stated no viable elaims against other Defendants he named—^David Pfeifle, Marty Jaekley, Heather
Hitterdal, City of Sioux Falls, State of South Dakota, and John Doe—for alleged civil conspiracy

and alleged discriminatory treatment of Danielson. Doc. 22. The parties have since begun
diseovery, and this Court has issued an order quashing some of Danielson's subpoenas. Now

pending before this Court is a motion for reeonsideration by Danielson and a motion for a
proteetive order by the State ofSouth Dakota(State) and the City of Sioux Falls (City).
I.

Motion for Reconsideration of Order Quashing Subpoenas

On Deeember 27, 2019, the City filed a motion to quash subpoenas Danielson served on

non-parties Greg Neitzert, Stacy Kooistra, and Shawn Pritchett. Doc. 52. Neitzert is an elected

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member of the Sioux Falls City Council and maintains a website with the address
www.sfmeetings.org. Doc. 54 at

1-2. Although the website used to be open to the public,

Neitzert installed a login wall in July 2019, in part because he no longer has time to maintain the

site. Doc. 54 at ]f 4. According to Neitzert's affidavit, all of the information available on his
website is publicly available on the official website for the City Sioux Falls. Doc. 54 at^ 3. Stacy
Kooistra is the City Attorney for Sioux Falls while Shawn Pritchett is the City's Finance Officer.
The subpoena to Neitzert listed fifteen subpoena production topics, including
"Documentation of all identities, such as IP address or user ID or email address, who either did,

or were authorized to, or attempted to access the website www.sfmeetings.org from April 14"^,
2015 to present including metadata identities as required to establish relationships to identify
users;""Any communications with any persons referencing either directly or indirectly the website
www.sfimeetings.org;" and "Any communications with any person referencing an actual or

potential campaign contribution to candidate Greg Neitzert,future political roles for Greg Neitzert,
or desire to contribute to or support a campaign by Greg Neitzert as candidate for political office."
Doc. 53-1 at 9-10.

The subpoenas served on Kooistra and Pritchett were identical. They listed twenty-nine

production topics including "All physical assault or stalking complaints by city employees during
the tenure ofMike Huether and the outcome;""All documents pertaining to policies governing the

ownership of intellectual property created as a result of City employment including ownership of
letters, records, emails, legal records, notes, patents, calculations and other intellectual property;"

and "Copies of any communications, including metadata and contents, with member [sic] of the
Attorney General's office or DCI Agents regarding" thirteen different people firom April 14th,
2015, to November 10th, 2015. Doc. 53-2 at 8-10.

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The City argued that the subpoena to Neitzert should be quashed in its entirety because the

production topics were burdensome and irrelevant to the issues remaining before the Court.
Kooistra and Pritchett made this same argument about production topics 4, 5, 6, 9, 10, 11,12, 13,

18, 19, and 29.'
This Court granted the motion to quash in a January 22,2020 order, finding that Danielson
had failed to respond to the motion within the twenty-one day period and that the Neitzert subpoena

and certain topics in the Kooistra and Pritchett subpoenas were unduly burdensome and irrelevant.
Doc. 55. On January 23, 2020, the clerk of court filed Danielson's nineteen-page "Objection" to

the motion to quash. Doc. 57. The certificate of service included at the end of Danielson's
objections says that Danielson placed the document in the mail on January 21, 2020. Doc. 57 at
19.

In early February of2020, Danielson filed a motion under Federal Rule of Civil Procedure
60(b) asking this Court to reconsider its order quashing Danielson's subpoenas. Doc. 62. Among
other things, Danielson argued that his objections were timely because he mailed them on January

21, 2020. This argument is incorrect. The City mailed Danielson the motion to quash the

subpoenas on December 27, 2019.^ Doc. 64 at 2; Doc. 52 at 2; Doc. 53 at 7; Doc. 65-11. Service
of the motion to quash was complete upon mailing. Fed. R. Civ. P. 5(b)(2)(C); Treanor v. MCI

Telecomms. Corp., 150 F.3d 916,918(8th Cir. 1998). Under Civil Local Rule 7.1, Danielson had
twenty-one calendar days to serve and file a response to the motion to quash. D.S.D. Civ. LR

7.1(B)("On or before 21 calendar days after service of a motion and brief, unless otherwise

'Kooistra and Pritchett have responded and produced documents under all the other topics except

topic 21. They intend to respond to topic 21 if and when Danielson stipulates to a protective order.
^The certificate ofservice attached to the motion to quash says the motion was mailed on December
26, 2019, but one ofthe City's briefs says the motion was mailed on December 27, 2019.

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specifically ordered by the court, all opposing parties must serve and file a responsive brief...
The day of mailing does not eount, Fed. R. Civ. P. 6(a)(1)(A), so Danielson's response would
normally have been due on January 17, 2020. Because the City served Danielson with the motion
by mail, however, Danielson had three additional days to file his response. Fed. R. Civ. P. 6(d).
Sinee January 20, 2020, was a legal holiday, Danielson's response was due on January 21, 2020.

Fed. R. Civ. P. 6(a)(1)(B)&(C). Although Danielson argues that his response was timely beeause
he mailed it on January 21, 2020, filing was not eomplete until the elerk reeeived his response.

See Mclntosh v. Antonino. 71 F.3d 29, 36(1st Cir. 1995)("When papers are mailed to the clerk's
offiee, filing is eomplete only upon the clerk's receipt ofthem."). The clerk ofeourt did not reeeive

Danielson's response until January 23, 2020, Doe. 57, which means the response was untimely,
see Torras Herreria v Construeciones. S.A. v. M/V Timur Star. 803 F.2d 215, 216(6th Cir. 1986)

("Filings reaching the clerk's offiee after a deadline are untimely, even if mailed before the
deadline."). As this Court stated in its order granting the motion to quash, Danielson's failure to
file a timely response is a suffieient reason to grant the motion. Nevertheless, this Court has
considered Danielson's arguments about why he eonsidered the requests in the subpoena as

relevant, and nothing in his response or his motion for reeonsideration convinces this Court that

the subpoenas were relevant and not unduly burdensome. As sueh, Danielson's motion for
reconsideration is denied.
II.

Motion for Protective Order

The State and the City filed a Motion for Protective Order under Rules 26(c) and

45(d)(3)(A)(iii) of the Federal Rules of Civil Procedure. Doc. 58. They seek a proteetive order
limiting the diselosure of eertain doeuments and argue that other documents Danielson requests

are privileged. Danielson filed a response to the motion for a proteetive order. Doe. 66, as well as

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a surreply to the motion, Doc. 72-1. Very recently, he filed a motion to amend his initial response
to the motion for a protective order. Doc. 83. This Court grants Danielson's motion to file his
amended response and has considered the amended response in ruling on the motion for a
protective order.

Rule 26(c) grants a district court authority, for good cause, to issue a protective order and
provides a list of potential remedies to protect a party "from aimoyance, embarrassment,

oppression, or undue burden or expense." Fed. R. Civ P. 26(c)(1). These remedies include
prohibiting disclosure or discovery and placing limits on the same. Id Rule 45 states that courts
"must quash or modify" subpoenas that "require[] disclosure of privileged or other protected
matter, if no exception or waiver applies." Fed. R. Civ. P. 45(d)(3)(A)(iii). "Both Rules 45 and

26 authorize the court to modify a subpoena duces tecum when its scope exceeds the boundaries
ofpermissible discovery or otherwise violates the parameters of Rule 45." Hahn v. Hunt. No. 15I

2867,2016 WL 1587405, at *2(E.D. La. Apr. 20, 2016).
A. Police Records,Investigative Reports, and Security Camera Locations

The State asks this Court for a protective order concerning Topics 2, 3, and 4 of the

subpoena directed to it. Topics 2 through 4 concern the South Dakota Division of Criminal
Investigation's (DCI) investigation of Danielson's claim that Huether assaulted him during an

April 2015 City meeting in the Carnegie Town Hall meeting room. Doc. 59-1 at 7-8. The City
of Sioux Falls asks for a protective order for Topic 21 of the subpoena directed to it. Topic 21

seeks "[bjlueprints of Carnegie Library and building showing locations of all cameras which were

installed as of April 14"^, 2015." Doc. 53-3 at 11.
The State and City argue that these topics require disclosure ofpolice records,investigative

reports,"and/or official documents ofthe City of Sioux Falls." Doc. 60 at 3—4. According to the

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State and City, these topics are protected from disclosure by SDCL §§ 1-27-1.5(5), 23-5-7, 23-510, and 23-5-11. Sections 1-27-1.5(5) and 23-5-11 exempt certain information from disclosure to

the public under South Dakota's Public Records Act. Mercer v. S.D. Attorney Gen. Office. 864
N.W.2d 299, 304(S.D. 2015). Section 1-27-1.5(5) exempts

[r]ecords developed or received by law enforcement agencies and
other public bodies charged with duties of investigation or
examination of persons, institutions, or businesses, if the records
constitute a part of the examination, investigation, intelligence
information, citizen complaints or inquiries, informant
identification, or strategic or tactical information used in law
enforcement training.

SDCL § 1-27-1.5(5). Section 23-5-11 exempts "confidential criminal justice information," SDCL

§ 23-5-11, which is defined in relevant part as "criminal identification information compiled

pursuant to chapter 23-5, criminal intelligence information, criminal investigative information,^.
. . and criminal justice information otherwise made confidential by law," SDCL § 23-5-10(1). In
Mercer v. South Dakota Attomev General Office, the Supreme Court of South Dakota held that

§§ 1-27-1.5(5) and 23-5-11 prohibited disclosure of records from the DCl's investigation of the
death of a public official. 864 N.W.2d at 304.

Danielson's claims are predominantly federal, so federal common law governs any
assertion of privilege by the State and City. Lvkken v. Bradv. No. CIV. 07-4020-KES, 2008 WL
2077937, at *4 (D.S.D. May 14, 2008); Ponce v. Citv of Onawa. No. l:03-cv-30064, 2004 WL

7332831, at *1 (S.D. Iowa Oct. 6, 2004). But state privileges are still relevant. Lvkken.2008 WL
2077937, at *4. Indeed, courts have entered protective orders limiting the disclosure of police

^"Criminal investigative information" means "information associated with an individual, group,
organization, or event compiled by a law enforcement agency in the course of conducting an
investigation ofa crime or crimes. This includes information about a crime or crimes derived from

reports ofofficers, deputies, agents,informants, or investigators or from any type ofsurveillance."
SDCL § 23-5-10(4).

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records and investigative files based on state privileges or statutes. See Zokaites v. Citv of Sioux
Falls, 19-CV-4183-KES (D.S.D. 2019), Docs. 12, 18 (text orders granting a protective order for
Sioux Falls Police and Animal Control records based on SDCL § 1-27-1.5(5)); Ponce. 2004 WL

7332831, at *3 (limiting disclosure of a law enforcement officer's investigative file to the parties
in the case given Iowa's qualified privilege attending such files). Courts have also granted
protective orders based on public safety concerns. Blair v. Citv of Omaha. No. 8:07CV295,2011
WL 148120, at *3 (D. Neb. Jan. 18, 2011)(limiting disclosure of a police manual over concems
that the manual's release would compromise police operations and endanger public safety).
Good cause exists for the protective order requested here. Importantly, the order will not

prejudice Danielson's ability to prosecute his claims; it allows Danielson access to the records he
seeks and permits him to share these records subject to the protective order with witnesses,

consultants, experts, and his attorney should he chose to hire one. Doc. 58-1 at 2. At the same
time, the order protects the State's interest in keeping police records and investigative reports
confidential and the City's interest in maintaining security in the Carnegie Building. That is the
appropriate balance in this case.
B. Attorney-Client Privilege

Danielson's subpoena to the State requests the following:
5.
Any communications and/or communications
records such as phone call logs or email logs or scheduling notes

between persons identified as relevant in #2'^ above including any
reference to Bruce Danielson, or investigation ofthe allegations.

6.
Any information referencing Danielson's complaint
and investigation provided to Mike Huether's attorney James Moore
or other members of Woods Fuller law firm.

''Topic 2 lists the following as "relevant persons": Bruce Danielson, Lorie Hogstad, Michael
Huether, Jon Klemme,Brett Mathison, Sue Quanbeck Etten, John Schaeffer, Marty Jackley, David
Pfeifle, Jim Severson, James Moore, Doug Barthel, Heather Hitterdal, and employees of the
Attorney General's Office, including the DCI. Doc. 59-1 at 7.

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Doc. 59-1 at 8. Danielson's subpoena lists the timeframe for his request as running from April 14,
2015, to the present. Doc. 59-1 at 4.

The City and State argue that the attorney-client privilege prevents diselosure of

communications to or from attorneys James Moore and David Pfeifle requested in Topic 5^ as well
as the communieations Danielson seeks in Topic 6. James Moore is the defense attorney in this

case. He represents Huether, but he also represented David Pfeifle, Marty Jaekley, Heather
Hitterdal, the City of Sioux Falls, and the State before this Court entered an opinion and order
dismissing Danielson's elaims against these parties. David Pfeifle was the City Attorney when
Huether allegedly assaulted Danielson.

Generally speaking, the attorney-client privilege prevents disclosure of confidential
communications between a client and his or her attomey "made for the purpose of facilitating the

rendition of legal services to the elient." United States v. Yielding, 657 P.3d 688, 707 (8th Cir.

2011). Danielson argues that the State and City have not met their burden to show that the
attomey-elient privilege applies to the requested eommunications.

See Fed. R. Civ. P.

26(b)(5)(A)(ii) & 45(e)(2)(A)(ii). The information a party must provide when asserting the
attorney-client privilege can vary depending on the scope and nature of the discovery request. 8
Richard L. Marcus, Federal Practice and Procedure § 2016.1 (3d ed.). Here, Topies 5 and 6 ofthe

subpoena to the State obviously eneompass communieations protected by the attomey-elient
privilege. After all, Danielson is requesting communications between the State and its attomey
Moore about this lawsuit. See In re Bieter Co.. 16 F.3d 929, 938 (8th Cir. 1994)(explaining that

when a client eommunieates with outside counsel,"it is prima facie eommitted for the sake oflegal

^The State will provide the communications between the other "relevant persons" listed in Topics
2 and 5 subject to a protective order.
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advice and is, therefore, within the privilege absent a clear showing to the eontrary"(cleaned up
and citation omitted)). Under these circumstanees, this Court can rule on the attorney-client
privilege question without requiring the State to provide information about eaeh communication it
had with Moore for the last five years. Communieations to or from Pfeifle are a different matter.
The subpoeana is directed to the State, and neither the State nor the City has explained why the

State possesses communieations about Danielson to or from Pfeifle, the City Attomey, that are
allegedly protected by the attorney-client privilege. This Court will give the State and City
fourteen days from the date ofthis Opinion and Order to explain why the attorney-client privilege

protects any communications between Pfeifle and the State eoneeming Danielson.
Communieations by Pfeifle in his role as city attomey with city officials or the attomey

representing any city officials would be privileged.
C. Work-Product Doctrine

Topic 7 of Danielson's subpoena to the State requests "[a]ny information referencing
Danielson's complaint and investigation provided to South Dakota Public Assurance." Doe. 59-1

at 8. The South Dakota Public Assurance Allianee(SDPAA)is the risk pool that provides liability
coverage to the City's employees. According to the City, the work-produet doctrine protects
"[cjommunications between the SDPAA and City employees about Danielson's eomplaint, which
necessarily oeeurred after Danielson's lawsuit was filed." Doc.60 at 7-8.

Rule 26(b)(3)(A) codified the work-product doctrine. It states that parties generally "may
not discover documents and tangible things that are prepared in anticipation oflitigation or for trial

by or for another party or its representative(including the other party's attomey, eonsultant, surety,
indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3)(A). Such materials may be discovered

only if they are otherwise within the scope of discovery, the requesting party shows substantial

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need for the materials, and the requesting party demonstrates undue hardship in obtaining the
materials by other means. Id.

Here, the very description of the documents Danielson seeks in Topic 7 shows that they

are protected by the work-product doctrine. Again,Danielson asks for information referencing his
complaint, which means that he seeks documents that the City sent its insurer after Danielson filed

this suit against the City and some of its employees. Courts agree that the work-product doctrine

prevents disclosure of such documents. Minn. Sch. Bds. Ass'n Ins. Tr. v. Emp'rs Ins. Co. of
Wausau, 183 F.R.D. 627, 631 (N.D. 111. 1999)("Communications to one's insurer made as a

consequence of pending litigation are privileged work product." (citation omitted)); Bredice v.
Doctors Hosp.. Inc., 50 F.R.D. 249,251 (D.D.C. 1970)("Reports from the insured to its insurance

carrier subsequent to the institution of a suit are in furtherance of and for the purpose of aiding in
the defense of its case and in the preparation of its attorney for trial. Such reports are part of the

attorney's 'work product' and are precluded from discovery."). Danielson has not shown
substantial need for the materials he requests in Topic 7, and the State need not produce them.
III.

Conclusion

For the reasons stated above, it is hereby

ORDERED that Danielson's Motion to Amend Objections to the Defendant's Motion for
a Protective Order, Doc. 83,is granted. It is further
ORDERED that Danielson's Motion for Reconsideration, Doc. 62, is denied. It is further

ORDERED that the City and State's Motion for a Protective Order, Doc. 58, is granted
except as to the commimications between Pfeifie and the State concerning Danielson.

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DATED this 3^*^ day of June, 2020.

BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE

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