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Peterson v. City of Minot

United States District Court, D. North Dakota

October 17, 2018

Joshua Peterson, Plaintiff,
v.
City of Minot, a political subdivision, and Officer Brandon Schmitt, a Minot Police Officer, in his individual capacity Defendants.

          ORDER (AMENDED) GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL

          Charles S. Miller, Jr., Magistrate Judge

         Before the court is a motion by defendants to compel discovery from plaintiff's laptop computer. This is the second time a discovery issue with respect to this computer has come before the court.

         I. BACKGROUND

         During the early morning hours of August 30, 2014, plaintiff, an admitted methamphetamine addict and drug dealer, drove into an area behind several commercial establishments located on the periphery of downtown Minot, North Dakota. Brandon Butler, also an admitted methamphetamine user and purported drug-dealing associate of plaintiff, was a passenger. Plaintiff pulled his vehicle up to the back entrance of Minot Welding Company and proceeded to burglarize the establishment while Butler remained in the vehicle.

         While in Minot Welding, plaintiff observed a Minot police vehicle pull up across the street from the front side of the building. Recognizing he might be in trouble, plaintiff exited out the back to where his vehicle was parked. As police officers converged on the area in back of the business establishments, plaintiff pulled his vehicle away in attempted flight. As he was doing so, defendant Schmitt fired five rounds from relatively close range into the side of the vehicle, several of which struck plaintiff and Butler. Plaintiff was seriously injured and rendered a paraplegic. Butler was not so seriously injured.

         Following these events, plaintiff was not incarcerated while he recovered from his injuries and underwent some rehabilitation. Later, and after accumulating new charges, he was sentenced to prison and is still serving his sentence.

         Plaintiff initiated this action against the City of Minot and Officer Schmitt in his individual capacity, alleging that Schmitt violated his federal constitutional rights by using excessive force. Plaintiff also asserts state law claims of battery and negligence.

         During the taking of depositions in this case, defendants became aware that plaintiff had a laptop computer that was then being held by his parents. Prior to that, plaintiff's then spouse, who was separated from plaintiff and has now since divorced him, had possession of the computer for a period of time after plaintiff went to prison, before turning it over to plaintiff's parents. Relevant to what follows, it appears plaintiff used the computer for some period of time following the incident that is the subject of this action and so did plaintiff's ex-spouse while she had possession of it.

         After learning of the laptop, defendants sought to inspect the computer-if not outright gain possession of it-by serving a Rule 45 subpoena upon plaintiff's parents directing them to produce the computer at the Minot Police Department. When plaintiff's counsel complained about this in a letter, defendants' counsel stated in response that they intended to ship the computer to an expert in Minneapolis for examination and that plaintiff's attorneys could have someone in attendance for the examination. Nothing was offered in terms of any limitation upon the extent of the search. Plaintiff then moved to quash the subpoena and defendants moved to enforce it-claiming that they had the right to an unfettered inspection of the computer. In a prior order dated January 8, 2018, the court (1) granted plaintiff's motion to quash the subpoena, and (2) denied defendants' motion to compel enforcement of it. The court, however, did require that plaintiff's counsel take possession of the computer to insure that any information on it was properly preserved. The court then went on to state:

The court further concludes that defendant does not have the right to go on a fishing expedition to examine the computer for whatever might suit its interest. Consequently, the subpoena to plaintiff's parents will be quashed.
That being said, given the particular circumstances of the case and the fact that we are still a long way prior to trial, the court will allow defendant to make a very targeted request to the plaintiff for discovery of additional information that may be on the computer that is not cumulative of what defendant has already obtained from plaintiff during his deposition. Plaintiff's counsel can then respond accordingly, either by objecting (but not on the basis that discovery has closed) or providing responsive information that is on the computer, if any. Any disputes can be resolved by motion, but only after first following the procedure for informal resolution of the disputes through a phone call to the undersigned as required by our Local Rules.

(Doc. No. 43).

         Following the court's order, defendants did make what they styled as a “Request for Discovery of Additional Information From Joshua Peterson's Laptop.” The individually numbered requests describe a number of possible locations on the computer for electronic information (e.g., email, social media, file exchange, messaging, photo, and internet browser programs) and then asks for virtually all files and other information at these locations, including deleted information. The individual requests are as follows:

REQUEST NO. 1: Please produce any and all Viber history and records, including deleted history, from the subject laptop. See attached page 43 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of Viber on the subject laptop.
REQUEST NO. 2: Please produce any and all messaging or communication applications or programs records from the subject laptop, including deleted or purged items. See attached page 44 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of “other form of communication [on subject laptop] besides his cell phone.”
REQUEST NO. 3: Produce all resident email account (e.g., Outlook) records from the subject laptop, including usernames, sent items, received items, subject lines, for and from lines, dates of activity, email content, contacts list, and deleted or purged items. See attached page 45 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of the subject laptop to communicate through email, including after the subject incident.
REQUEST NO. 4: Please produce all third-party web-based email account (e.g. Google, Hotmail, Yahoo) records from the subject laptop, including usernames sent items, received items, subject lines, to and from lines, dates of activity, email content, contact lists, and deleted or purged items. See attached page 45 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of the subject laptop to communicate through email, including after the subject accident, and page 44 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of at least one “gmail” email account and page 45 of Raquel Peterson's deposition transcript regarding Joshua Peterson's use of the subject laptop to communicate through email, including after the subject incident.
REQUEST NO. 5: Please produce any and all internet history from any browser used on the subject laptop, including deleted or purged history.
REQUEST NO. 6: Please produce any and all photos and/or videos on the subject laptop, including deleted or purged photos and/or videos. See attached page 46 of Raquel Peterson's deposition transcript stating that at least one deletion of the subject laptop has occurred since the subject incident.
REQUEST NO. 7: Please produce any and all social media records from the subject laptop, including deleted and/or purged records, contact lists, and friends lists.
REQUEST NO. 8: Please produce all user created files, including deleted files, and the dates they were deleted. See attached page 46 of Raquel Peterson's deposition transcript stating that at least one deletion of the subject laptop has occurred since the subject incident.
REQUEST NO. 9: Please provide any and all records from data destruction programs. or indications of data destruction.
REQUEST NO. 10: Please provide any and all records of transferring of files between the subject laptop and any external electronic device or data storage unit. See pp. 223-224 of Joshua Peterson's deposition transcript acknowledging that he has transferred files between the subject laptop and other electronic devices.

(Doc. No. 69-1).

         While there are no limitations set forth in the individual requests with respect to subject matter or time, the defendants did state the following in the predicate to the requests:

         SCOPE OF DOCUMENTS REQUESTED AND TO BE PRODUCED

"Subject incident" or "incident'' is described as the incident occurring on August 30, 2014 when plaintiff Joshua Peterson was in the vicinity of 400 4th Avenue Northeast, at and/or near Minot Welding Company, Minot, ND, as described in the Complaint and Jury Trial Demanded (doc. 1) elated July 22, 2016 (hereinafter "Subject Complaint"). For purposes of these requests, the following requests are limited to responsive documents and/or files, including deleted files, from 30 days prior to the subject incident until 30 days after the subject incident. ''Responsive documents" include any and all forms of documents, files, or electronically stored information (''EST''), including deleted and/or purged documents, related to: methamphetamine possession, use and/or trafficking of methamphetamine, including all references to the same by street names or slang, such as, but not limited to, "meth", ''crystal", and "rock''; communications that Joshua Peterson had with witnesses and/or potential witnesses, for purposes of the requests "witnesses and/or potential witnesses'' is limited to the following: Megan Owens, Brandon Butler, the persons that Brandon Butler testified that he visited in the early morning hours on August 30, ...

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