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Sander v. City of Dickinson

United States District Court, D. North Dakota

April 24, 2017

Thomas Sander, Plaintiff,
v.
The City of Dickinson, North Dakota, Kylan Klauzer, Jeremy Moser, Terry Oestreich, and Does 1-10, Defendants.

          ORDER RE MOTIONS TO COMPEL (DOC. NOS. 55 & 56)

          Charles S. Miller, Jr., Magistrate Judge United States District Court

         Before 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).[1]

         In this 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.

         I. DISCUSSION

         A. Oestreich emails

         During the time period relevant here, defendant Oestreich was a detective for the Dickinson Police Department. He has since become the Sheriff for Stark County.

         In 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 wrote:

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 AM.

(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 ...

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