United States District Court, D. North Dakota
ORDER RE MOTIONS TO COMPEL (DOC. NOS. 55 &
Charles S. Miller, Jr., Magistrate Judge United States
the court is (1) plaintiff's motion seeking an order
requiring that the City of Dickinson (“City”)
either produce specific documents and other intangible items
or admit that it failed to preserve the items (Doc. No. 55),
and (2) plaintiff's motion to compel a supplemental
answer to plaintiff's Interrogatory No. 5 for failure to
preserve what is termed here as the “J.G.
document.” (Doc. No. 56).
action, plaintiff has sued the City of Dickinson as well as
several of its current and former police investigators for a
variety of claims arising out of their having arrested
plaintiff and causing him to be charged with committing arson
of a local private Catholic school of which he was then the
principal. After the state district court suppressed
plaintiff's confession on grounds of one or more of
defendants having violated Miranda, the State's
Attorney dismissed the charge, concluding there was not
sufficient evidence to proceed. Plaintiff contends that his
confession was the subject of undue coercion and that, prior
to his confession having been wrongfully coerced, he had
steadfastly maintained his innocence in response to
questioning by the City's investigators.
the time period relevant here, defendant Oestreich was a
detective for the Dickinson Police Department. He has since
become the Sheriff for Stark County.
reporta authored by Oestreich while working as a detective
for the City, he clearly indicated he was recipient of
several emails while working on the investigation that is the
subject of this case. In one report, he stated:
On Monday afternoon March 3, 2014, I met with Monsignor
Schumacher and the Dickinson Catholic School Board at St.
Wenceslaus Rectory. I was asked to come to their meeting as
they had obtained some additional information. Mr. Holgard
received information concerning a tweet message from David
Perkorny. Fr. Hochhalter also received a message concerning a
tweet message Cole Wilhelm it had made. I had these
messages e-mailed to me. Copies of these messages were given
to Det. Moser.
(Doc. No. 53-1, p. 29) (italics added). In another report, he
On Monday June 2, 2014 I was asked to follow up on an e-mail
which Mrs. Heather Schieno mentioned in her interview with
Det. Moser. Mrs. Schieno told of an email which Thomas Sander
sent to Trinity High School Staff on Sunday night March 2,
2014 at approximately 2358 Hrs. She stated she remembered
getting this email.
On Monday June 2, 2014 I contacted Mrs. Schieno who stated
she does not have this e-mail saved. She stated that Mrs.
Janel Schiff had this e-mail saved. Mrs. Schieno stated she
would contact Mrs. Schiff and have her forward a copy of this
e-mail to me. A short time later I received an e-mail in
which Mrs. Schiff forwarded the email in question to me.
This e-mail is dated March 3, 2014 with a time sent as 1246
(Doc. No. 53-1, p. 47) (italics added). Plaintiff contends
the City has not produced the emails referenced in the
Oestreich reporst in response to his document requests and
demands that the City either produce the referenced emails or
acknowledge it has failed to preserve them and respond to
plaintiff's Interrogatory No. 5. Plaintiff's
Interrogatory No. 5 reads:
INTERROGATORY NO. 5: If any
documents or categories of documents responsive to any of the
following Requests for Production were formerly within your
possession, custody, or control but have been lost,
misplaced, destroyed, deleted, transferred, conveyed, leased,
or for any reason are no longer available for production,
separately state the following with respect to each document:
a. The author of the document;
b. The address of the recipient of the document;
c. The nature of the document with sufficient particularity
to enable it to be ...