Pentel v. Shepard

           UNITED STATES DISTRICT COURT                             
               DISTRICT OF MINNESOTA                                


Randolph Pentel,                   Case No. 18-cv-1447 (NEB/TNL)         
Kim Povolny,                                                             
Michelle Povolny, and                                                    
Michael Povolny,                                                         
On Behalf of Themselves and All Others                                   
Similarly Situated,                                                      

     Plaintiffs,                                                    

v.                                          ORDER                        

Michael Shepard,                                                         
in his individual capacity as an employee                                
of the City of Mendota Heights, and                                      

City of Mendota Heights,                                                 

     Defendants.                                                    


Charles V. Firth, Engelmeier & Umanah, PA, 706 Second Avenue South, Suite 1100, 
Minneapolis, MN 55402; and Jonathan A. Strauss, Lorenz F. Fett, Jr., Robin M. 
Wolpert, and Sonia L. Miller-Van Oort, Sapientia Law Group, 120 South Sixth Street, 
Suite 100, Minneapolis, MN 55402 (for Plaintiffs);                       

Elizabeth Peppin Ridley and Mark P. Hodkinson, Heley, Duncan & Melander, PLLP, 
8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN 55437 (for   
Defendant Michael Shepard);                                              

Jon K. Iverson, Stephanie A. Angolkar, and Susan M. Tindal, Iverson Reuvers Condon, 
9321 Ensign Avenue South, Bloomington, MN 55438 (for Defendant City of Mendota 
Heights); and                                                            

Oliver J. Larson, Assistant Attorney General, Minnesota Attorney General’s Office, 
445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for Respondent 
Minnesota Department of Public Safety).                                  
                   I. INTRODUCTION                                   

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on 
Plaintiffs Randolph Pentel and Michael Povolny’s1 Motion to Compel Discovery (ECF No. 
33).  A hearing was held on June 19, 2019.  (ECF No. 75.)  Charles V. Firth appeared on 
behalf of Plaintiffs; Mark P. Hodkinson appeared on behalf of Defendant Michael Shepard; 
Stephanie A. Angolkar appeared on behalf of Defendant City of Mendota Heights (“the 
City”); and Oliver J. Larson appeared on behalf of Respondent Minnesota Department of 
Public Safety (“DPS”).                                                    

                   II. BACKGROUND                                    
This  is  a  putative  class  action  for  alleged  violations  of  the  Driver’s  Privacy 
Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., and the Minnesota Government Data 
Practices Act (“MGDPA”), Minn. Stat. § 13.01 et seq., based on improper accesses of 
“private, personal and confidential drivers’ license information” by Shepard, a police 

officer formerly employed by the City.  (Compl. ¶¶ 1, 2, 35, ECF No. 1.)  
A. LEMS Database                                                     
In the performance of their duties, law enforcement officers have access to a number 
of different databases containing “license plate information and other private drivers’ 
license information regarding Minnesota drivers,” such as “names, dates of birth, driver’s 

license numbers, addresses, driver’s license photos, weights, heights, [and] various health 
and disability information.”  (Compl. ¶¶ 2, 24.)  These databases “may be accessed and 


1 Plaintiffs Kim and Michelle Povolny have settled their claims.  (See, e.g., ECF Nos. 46-55.) 
queried by different means, including entering a person’s name, license plate number, or 
driver’s license number.”  (Compl. ¶ 26; see also Compl. ¶ 25.)           

One  of  these  databases  is  the  Law  Enforcement  Message  Switch  (“LEMS”) 
database.    The  LEMS  database  is  managed  by  the  Minnesota  Bureau  of  Criminal 
Apprehension (“BCA”), a division of DPS.  (Decl. of Katherine A. Engler ¶ 4, ECF No. 
65; DPS Opp’n at 2, ECF No. 63.)  The LEMS database “was the original method of 
access” for this type of information “and was the only method of access for several 
decades.”  (Engler Decl. ¶ 4.)  At the hearing, counsel for DPS stated that the LEMS 

database dates back to the 1980s.  While there are other databases available, the “LEMS 
[database] is heavily used by law enforcement officers because it returns criminal history 
and other useful data that [other databases] do not.”  (Engler Decl. ¶ 5.) 
     1.  Determining the Source of a LEMS Access                     
The “LEMS [database] is typically accessed through terminals in police stations and 

via devices in squad cars.”  (Engler Decl. ¶ 4.)  Unlike other databases, use of the LEMS 
database is not tied to the identity of a particular user.  Instead, use of the LEMS database 
is tied to the access device and the agency to which it is registered.  When the LEMS 
database is accessed, the agency identifier, device identifier, date and time of the access, 
type of query, and information returned are logged.  This means that audits for use of the 

LEMS  database  do  not  return  information  showing  accesses  by  a  particular  law 
enforcement officer.  Rather, audits show only that the information was accessed by a 
particular device registered to a particular agency.  (See Engler Decl. ¶ 4; Aff. of Kelly 
McCarthy ¶ 7, ECF No. 58; Ex. 4 at 1 to Aff. of Jonathan A. Strauss, ECF No. 37-3.) 
Accordingly, determining whether a specific law enforcement officer, i.e., Shepard, 
performed any one access of the LEMS database reflected in these audit returns is a 

multistep process.  Because use of the LEMS database is not tied to the identity of a 
particular user, the City must undergo a series of crosschecks to determine whether Shepard 
was in fact the officer querying the LEMS database for each access.  First, the City must 
contact its IT provider to determine which of its officers “was signed into the device at the 
time of the query.”  (McCarthy Aff. ¶ 7.)  Second, the City “check[s] the schedule to make 
sure the officer signed in was working on the date and time of the query.”  (McCarthy Aff. 

¶ 7.)  Third, the City “check[s] squad assignment sheets to ensure the device was located 
in the squad the officer was assigned to.”  (McCarthy Aff. ¶ 7.)  This process is complicated 
by the fact that “[d]evices can be moved between squads[ and], therefore, [the City] . . 
often ha[s] to find an additional verification source such as reports or citations written 
around the same time.”  (McCarthy Aff. ¶ 7.)  For each access, the process can “take 

anywhere from a few minutes to an hour to verify this information.”  (McCarthy Aff. ¶ 7.) 
     2.  LEMS Audit Returns                                          
LEMS audit data is also less “user-friendly” than audit data from other databases.  
The “average LEMS audit return” for a single access/search is two to three pages, and the 
data returned is difficult to decipher.  (Engler Decl. ¶ 8; see Pls.’ Mem. in Supp. at 4-5, 

ECF No. 36; see, e.g., Ex. 6 to Strauss Aff., ECF No. 39.)                
In addition, some of the information in the LEMS database—for example, federal 
criminal history information—is protected from disclosure by federal law.  (See Engler 
Decl. ¶¶ 5, 9; DPS Opp’n at 4.)  See, e.g., 28 C.F.R. § 20.33 (dissemination of criminal 
history record information).2  An excerpted LEMS audit return submitted to the Court 
states in no uncertain terms, and often multiple times per page, that “THIS RETURN IS 

OF FEDERAL DATA.  THE FBI IMPOSES RESTRICTIONS ON THE RELEASE OF          
THIS DATA.”3  (Ex. 6 passim to Strauss Aff.)  This LEMS audit return also reflects that 
the “query [w]as . . . sent to . . . the FBI,” (Ex. 6 at 11 to Strauss Aff.), and appears to show 
queries of the National Crime Information Center (“NCIC”), (Ex. 6 passim to Strauss 
Aff.).4                                                                   
The  NCIC  is  “the  computerized  information  system,  which  includes 

telecommunications lines and any message switching facilities that are authorized by law, 
regulation, or policy approved by the Attorney General of the United States to link local, 
state, tribal, federal, foreign, and international criminal justice agencies for the purposes of 
exchanging NCIC related information.”  28 C.F.R. § 20.3(n).  “The NCIC includes, but is 
not limited to, information in the [Interstate Identification Index System],” id., which is 

“the cooperative federal-state system for the exchange of criminal history records, and 
includes the National Identification Index, the National Fingerprint File, and to the extent 
of their participation in such system, the criminal history repositories of the states and the 
FBI,” id. § 20.3(m).  (See Law Enforcement’s Use of State Databases at 5, Office of the 
Legislative Auditor, State of Minn., Ex. A to Compl., ECF No. 1-1 [hereinafter Legislative 

Auditor’s Report] (“The Federal Bureau of Investigation provides BCA access to federal 

2 The citation to the federal regulation was provided to the Court at the hearing. 
3 The excerpted LEMS audit return was filed under seal.  The quotation of and reference to generalized information 
and terminology contained in the audit return goes only to the fact that federal information was queried and in no 
way speaks to the existence or absence of information responsive to the query. 
4 See supra n.3.                                                          
databases; BCA in turn makes these available to law enforcement agencies.”); see also id. 
at 4 (listing federal data sources, including the “Interstate Identification Index”).) 

Criminal history information maintained by the FBI is generally restricted to certain 
agencies  and  uses,  and  access  to  this  information  is  subject  to  cancellation  if 
“disseminat[ed]  .  .  .  outside  the  receiving  departments,  related  agencies,  or  service 
providers.”  28 C.F.R. § 20.33(a), (b), (d); see id. § 20.38 (sanction for noncompliance); 
see also id. § 20.30 (state criminal justice agencies subject to regulations governing federal 
systems and exchange of criminal history record information to the extent they use such 

systems).  (See also Legislative Auditor’s Report at 6 n. a (“The Federal Bureau of 
Investigation provides the [BCA] with access to federal databases and has created policies 
overseeing their access and use.”).)                                      
At the hearing, counsel for DPS explained that when LEMS data has been sought in 
the past, the BCA reviews the data and performs the necessary redactions.  Counsel for 

DPS further explained that this is a labor-intensive process.  The data is first assembled 
into a document, which then must be physically reviewed for protected information.  (See 
Engler Decl. ¶ 9.)  In a prior case DPS’s counsel was involved in, it took weeks for the 
BCA to review and redact a LEMS audit return that was between 600 and 800 pages long. 
B. DPS Subpoena for LEMS Accesses                                    

In mid-January 2019,5 Plaintiffs subpoenaed DPS for LEMS audit returns showing, 
in relevant part, individuals other than Plaintiffs that Shepard looked up by name or license 


5 At the hearing, Plaintiffs confirmed that a prior subpoena issued to DPS in September 2018 was not before the 
Court.  (See Pls.’ Mem. in Supp. at 4; Ex. 7 to Strauss Aff., ECF No. 37-5.) 
plate number from May 25, 2014 to November 3, 2017.6  (Ex. 1 to Decl. of Oliver J. Larson, 
ECF No. 64 at 4-10.)  At the time Plaintiffs subpoenaed DPS, the City had agreed to assist 

Plaintiffs in sorting through the LEMS audit returns to determine which accesses were 
performed by Shepard.  (Ex. 11 at 1 to Strauss Aff., ECF No. 37-8.)       
     1.  Burden to DPS/BCA                                           
DPS objected7 on grounds that the requested LEMS audit returns would be unduly 
burdensome because of the volume of responsive information and the amount of redaction 
required to remove “sensitive data” protected from disclosure under federal law.  (See Ex. 

3 at 1 to Aff. of Susan M. Tindal, ECF No. 59-3; see also Ex. 13 to Strauss Aff., ECF No. 
37-10; Engler Decl. ¶¶ 7-10.)  To estimate the volume of information responsive to 
Plaintiffs’ subpoena, the BCA gathered LEMS audit returns for the City for one day.  
(Engler Decl. ¶ 8.)  The audit returns for the sample day were approximately 200 pages 
long.  (Engler Decl. ¶ 8.)  Based on the BCA and counsel for DPS’s experience, the sample 

audit returns were in line with expectations as “[a]n average LEMS audit return is 2-3 pages 
per search, and if the City . . . was running 70-100 searches a day, a number that seems 
reasonable, that would produce a volume of audit returns in the neighborhood of 211 
pages.”  (Engler Decl. ¶ 8; see Ex. 12 to Strauss Aff., ECF No. 37-9.)    


6 The subpoena also sought the production of additional records.  The only issue before the Court is the LEMS audit 
returns showing individuals other than Plaintiffs that Shepard looked up by name or license plate number from May 
25, 2014 to November 3, 2017.  At the hearing, in response to questioning from the Court, it appears that there may 
be a dispute as to whether all of the LEMS audit data for Plaintiffs has been provided.  Counsel for DPS represented 
that the LEMS audit data for Plaintiffs has been produced through January 31, 2018.  A portion of the LEMS audit 
data was first produced in response a MGDPA request and the remainder (encompassing the period of time after the 
prior request through the termination of Shepard’s access to the databases) was produced on June 12, 2019.  Any 
dispute as to the completeness of Plaintiffs’ LEMS audit data has not been briefed and is not before the Court. 
7 In their memorandum, Plaintiffs inadvertently stated that DPS did not timely object to the subpoena.  (See, e.g., 
Pls.’ Mem. in Supp. at 2, 13.)  Plaintiffs subsequently corrected the mistake by letter.  (ECF No. 62.) 
Extrapolating the sample audit returns for a single day to the three-and-a-half-year 
period requested by Plaintiffs, the BCA estimated that Plaintiffs’ subpoena would result in 

approximately 102,200 searches and 306,600 pages of LEMS audit returns, which would 
then have to be reviewed and redacted.  (Engler Del. ¶ 9.)  The BCA estimated that “it 
would take hundreds, if not thousands, of hours to redact the restricted federal criminal 
data from these returns.”  (Engler Decl. ¶ 9.)  At the hearing, counsel for DPS also 
explained that the BCA had not attempted to retrieve this much LEMS audit data before 
and there were logistical concerns over assembling the sheer volume of audit returns in a 

useful way.                                                               
     2.  Burden to the City                                          
After  receiving  the  BCA’s  estimate  about  the  volume  of  LEMS  audit  data 
potentially responsive to Plaintiffs’ subpoena, the City withdrew its prior offer to sort 
through the LEMS audit returns to determine which accesses were performed by Shepard 

on grounds of undue burden.  (Ex. 14 to Strauss Aff., ECF No. 37-11.)  In light of the 
multistep process the City must undergo to determine whether any one particular access 
was performed by Shepard, the City estimates that “[e]ven if it took 2 minutes an access to 
determine whether Shepard made the access, it would take 20 months at 7 hours a day of 
uninterrupted work” to review the LEMS audit returns and “cost the City approximately 

$153,380 - $190,952.”  (McCarthy Aff. ¶ 7.)  The City notes that, as part of an internal 
investigation, it took approximately 3 months to review the data associated with roughly 
270 accesses.  (McCarthy Aff. ¶¶ 1-2.)                                    
                III. MOTION TO COMPEL                                
Plaintiffs seek to compel non-party DPS to provide the LEMS audit returns for an 

approximately three-and-a-half-year period to the City, to have the City then determine 
which accesses were made by Shepard, and then for the City to identify to Plaintiffs those 
accesses made by Shepard and the identity of the individuals accessed.  Plaintiffs also 
request that the Court order the City to notify individuals who were the subjects of accesses 
included in a 2017 disciplinary action against Shepard under Minn. Stat. § 13.055, subd. 
2(a).8                                                                    

A. Legal Standard                                                    
In general, “[p]arties may obtain discovery regarding any nonprivileged matter that 
is relevant to any party’s claim or defense and proportional to the needs of the case . . . .”  
Fed. R. Civ. P. 26(b)(1).  “‘The parties and the court have a collective responsibility to 
consider  the  proportionality  of  all  discovery  and  consider  it  in  resolving  discovery 

disputes.’”  Vallejo v. Amgen, Inc., 903 F.3d 733, 742 (8th Cir. 2018) (quoting Fed. R. Civ. 
P. 26 advisory committee’s note to 2015 amendment).  “[A] court can—and must—limit 
proposed discovery that it determines is not proportional to the needs of the case.”  Id. 


8 The Court has treated Plaintiffs’ motion as one to compel compliance with the subpoena issued to DPS and the 
notification requirements of Minn. Stat. § 13.055, subd. 2(a).  In their supporting memorandum, Plaintiffs assert that 
the City has “not adequately respond[ed]” to an interrogatory and two requests for production of documents.  (Pls.’ 
Mem. in Supp. at 7.)  These requests appear to seek the identification of individuals whose information was obtained 
by Shepard and for whom the City has determined the access was impermissible (and documents related thereto) as 
well as documents related to compliance with state notification laws.  While Plaintiffs include the text of these 
discovery requests (Pls.’ Mem. in Supp. at 6-7; Exs. 9, 10 to Strauss Aff., ECF Nos. 37-5, 37-6), they do not explain 
how the City’s answers or responses were deficient.  A motion to compel must contain “a concise statement of why 
the disclosure, answer, response, production, or objection is insufficient, evasive, incomplete, or otherwise 
improper.”  D. Minn. LR 37.1(d).  Given that Plaintiffs have failed to explain how the City’s answers or responses to 
these discovery requests were deficient, the Court has interpreted Plaintiffs’ motion as seeking the LEMS audit 
returns as outlined herein and notification under Minn. Stat. § 13.055, subd. 2(a). 
(quotation omitted).  Considerations bearing on proportionality include “the importance of 
the issues at stake in the action, the amount in controversy, the parties’ relative access to 

relevant information, the parties’ resources, the importance of the discovery in resolving 
the issues, and whether the burden or expense of the proposed discovery outweighs its 
likely benefit.”  Fed. R. Civ. P. 26(b)(1); see also Vallejo, 903 F.3d 742-43.  This Court 
“has very wide discretion in handling pretrial discovery.”  Hill v. Sw. Energy Co., 858 F.3d 
481, 484 (8th Cir. 2017) (quotation omitted).                             
B. LEMS Audit Returns                                                

“At any time, on notice to the commanded person, the [party serving a subpoena] 
may move the court for the district where compliance is required for an order compelling 
production or inspection.”  Fed. R. Civ. P. 45(d)(2)(B)(i).  “Subpoenas . . . are subject to 
the same constraints that apply to all of the other methods of formal discovery.”  Deluxe 
Fin. Servs., LLC v. Shaw, No. 16-cv-3065 (JRT/HB), 2017 WL 7369890, at *3 (D. Minn. 

Feb. 13, 2017) (quotation omitted).                                       
Rule 45 expressly requires a party to “take reasonable steps to avoid imposing undue 
burden or expense on a person subject to the subpoena.”  Fed. R. Civ. P. 45(d)(1).  The 
Court “must enforce this duty.”  Id.  As such, even relevant “discovery is not permitted 
where no need is shown, or compliance would be unduly burdensome, or where harm to 

the person from whom discovery is sought outweighs the need of the person seeking 
discovery of the information.”  Miscellaneous Docket Matter No. 1 v. Miscellaneous 
Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quotation omitted); see Fed. R. 
Civ.  P.  26(b)(1);  see  also  Deluxe  Fin.  Servs.,  2017  WL  7369890,  at  *4  (“These 
considerations are echoed in the proportionality factors set forth in . . . Rule 26(b)(1).”).  
“[C]oncern for the unwanted burden thrust upon non-parties is a factor entitled to special 

weight in evaluating the balance of competing needs.”  Miscellaneous Docket Matter No. 
1, 197 F.3d at 927 (quotation omitted).  Accordingly, any order compelling compliance 
with a subpoena “must protect a person who is neither a party nor a party’s officer from 
significant expense resulting from compliance.”  Fed. R. Civ. P. 45(d)(2)(B)(ii); see Fed. 
R. 45(d)(3)(A)(vi) (court must quash or modify a subpoena that subjects a person to undue 
burden).  In the end, “it is the collective responsibility of the parties and the Court to 

consider the proportionality of all discovery,” and the Court “must consider all of the 
information  brought  by  the  parties  to  reach  a  case-specific  determination  about  the 
appropriate scope of the subpoena.”  Deluxe Fin. Servs., 2017 WL 7369890, at *4; see 
Vallejo, 903 F.3d at 742.                                                 
Here, the LEMS audit returns Plaintiffs seek to compel would require an enormous 

amount resources to produce, creating a tremendous burden on both non-party DPS and 
the City.  For DPS, there are questions of technical feasibility related to assembly and 
production  as  well  as  the  substantial  amount  of  time  needed  not  only  to  amass  the 
information but then physically to review and redact hundreds of thousands of pages of 
audit returns for more than three years.  Then, for each of the thousands of accesses 

predicted, the City would need to perform a costly, time-consuming multistep process to 
determine whether the access was in fact made by Shepard.                 
Balanced against these heavy burdens is the highly speculative usefulness of this 
information to Plaintiffs’ claims.  Plaintiffs claim that the LEMS audit returns are “essential 
to a determination if Shepard obtained the driver’s license data of enough individuals for 
an impermissible reason to satisfy Rule 23(a)(1)’s numerosity requirement.”  (Pls.’ Mem. 

in Supp. at 13-14.)  But, even if the City and DPS perform all of the work requested, the 
end result would simply be raw access information.  Plaintiffs would merely know that 
Shepard accessed an individual’s information in the LEMS database at a particular point.  
The LEMS audit returns will not speak to the purpose for Shepard’s access—permissible 
or otherwise.                                                             
As DPS points out, “[P]laintiffs must show more than just driver’s license searches 

by . . . Shepard” to sustain a claim under the DPPA.  (DPS Opp’n at 6 (citing McDonough 
v. Anoka Cty., 799 F.3d 931, 948 (8th Cir. 2015); Tichich v. City of Bloomington, 835 F.3d 
856, 866 (8th Cir. 2016)).  Plaintiffs “must show that these searches were conducted 
without a lawful purpose.”  (DPS Opp’n at 6.)  Thus, even if the Court were to grant 
Plaintiffs’ motion, the LEMS audit returns requested “will shed little light on the question 

of how many people had their data wrongfully accessed by Shepard[]” because Plaintiffs 
will have difficulty differentiating wrongful accesses from lawful accesses.  (DPS Opp’n 
at  6.)   Again,  the LEMS audit  returns  will  merely  reflect  Shepard’s  accesses—both 
permissible and impermissible.  In fact, Plaintiffs’ counsel acknowledged as much prior to 
subpoenaing  DPS.    (Ex.  11  at  2  to  Strauss  Aff.  (noting  Plaintiffs  would  need  to 

“[d]etermine which accesses by Shepard were not for a permissible purpose, possibly 
through further written discovery and depositions of your clients, to establish individual 
claims and meet Rule 23 requirements”).                                   
In the end, the LEMS audit returns themselves “will . . . be of little use to determine 
the numerosity of [P]laintiffs’ proposed class,” i.e., individuals whose data was accessed 
for an impermissible purpose.  (DPS Opp’n at 6.)  While “Plaintiffs are well-positioned to 

argue why Shepard’s search of their own data was improper[, t]hey are not well-positioned 
to speculate as to why his search of other people[’s] data may have been improper.”  (DPS 
Opp’n at 6.)  Plaintiffs are essentially engaging in a costly fishing expedition, the fruits of 
which  will  require  considerable  extra  time  and  expense  to  chase  down  Plaintiffs’ 
suspicions.  See Fed. R. Civ. P. 1, 26(b)(1).                             
Plaintiffs also assert that “[w]ithout the identities of these individuals, the federal 

rights of the class members would be lost.”  (Pls.’ Mem. in Supp. at 14.)  Plaintiffs do not 
explain this blanket assertion, but later state that the City is “running out the clock on those 
individuals.”  (Pls.’ Mem. in Supp. at 16.)  Plaintiffs cannot use personal information from 
state motor vehicle records to solicit participation in this lawsuit.  Maracich v. Spears, 570 
U.S. 48, 59-73 (2013).  Individuals may request audits of accesses to their driver’s license 

information if they themselves suspect or are concerned that their information may have 
been accessed for an impermissible purpose.  (See Legislative Auditor’s Report at 35-37 
(discussing individual inquiries regarding access to driver’s license information).)  And, if 
Plaintiffs prevail on Count II of their Complaint, the City may well be required to inform 
individuals whose information was impermissibly accessed by Shepard of those accesses.  

See infra Section III.C.  Further, individuals may also bring their own claims under the 
DPPA  if  they  believe  their  information  was  accessed  for  an  impermissible  purpose.  
Plaintiffs have not persuasively articulated with any sort of specificity how the rights of 
other individuals rise and fall with the LEMS audit returns at issue.     
Based on the foregoing, the Court concludes that the LEMS audit returns requested 
by Plaintiffs are not proportional to the needs of this case when taking into account the 

massive burden to non-party DPS and the City, the speculative probative value of the data 
in resolving the issues in this litigation, and the increased delay and expense that would 
result.  These are the very types of considerations mandated by Rule 26(b)(1).  Therefore, 
Plaintiffs’ motion is denied with respect to the LEMS audit returns.      
C. Notification Under Minn. Stat. § 13.055, Subd. 2(a)               
Lastly, pursuant to the Court’s “inherent authority,” (Pls.’ Mem. in Supp. at 16), 

Plaintiffs request that the Court order the City to notify individuals who were the subjects 
of accesses included in a disciplinary action against Shepard under Minn. Stat. § 13.055, 
subd. 2(a).  The City opposes Plaintiffs’ request on grounds that § 13.055’s notification 
requirement has not been triggered.                                       
In 2017, Shepard received a suspension for, among other things, misuse of the 

databases.  (See generally Ex. 1 to Strauss Aff., ECF No. 37-1.)  The City’s chief of police 
dismissed 6 of 18 “suspicious queries” by Shepard, and “[a]fter all efforts to validate his 
[remaining] queries, there [we]re still 12 queries of plates and two image queries which 
violate policy and law.”  (Ex. 1 at 5 to Strauss Aff.)                    
Section 13.055, subdivision 2(a), of the MGDPA provides that         

     [a]  government  entity  that  collects,  creates,  receives,   
     maintains,  or  disseminates  private  or  confidential  data  on 
     individuals must disclose any breach of the security of the data 
     following discovery or notification of the breach.  Written     
     notification must be made to any individual who is the subject  
     of the data and whose private or confidential data was, or is   
     reasonably believed to have been, acquired by an unauthorized   
     person and must inform the individual that a report will be     
     prepared . . . , how the individual may obtain access to the    
     report, and that the individual may request delivery of the     
     report by mail or e-mail.  The disclosure must be made in the   
     most expedient time possible and without unreasonable delay,    
     consistent with (1) the legitimate needs of a law enforcement   
     agency  as  provided  in  subdivision  3;  or  (2)  any  measures 
     necessary to determine the scope of the breach and restore the  
     reasonable security of the data.                                

The MGPDA further provides that actions to compel compliance may be brought civilly 
or administratively.  Minn. Stat. § 13.08, subd.4(a); see generally Minn. Stat. §§ 13.08 
(civil remedies), 13.085 (administrative remedies).                       
Plaintiffs have brought one such civil action.  As part of Count II, Plaintiffs allege 
that  the  City  was  responsible  for  Shepard’s  impermissible  accesses  and  violated  the 
MGDPA when it failed to notify those individuals Shepard impermissibly accessed in 
accordance with Minn. Stat. § 13.055.  (Compl. ¶¶ 204-49.)  In their prayer for relief, 
Plaintiffs specifically request that the City be directed to comply with the MGDPA’s notice 
provisions, citing Minn. Stat. § 13.08, subd. 4.                          
Plaintiffs are essentially asking the undersigned to render a dispositive ruling.  
Plaintiffs are using a motion to compel to obtain the very relief prayed for in Count II.  A 
motion to compel is a non-dispositive motion most often heard by a magistrate judge.  See 
28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); D. Minn. LR 72.1(a)(2); Luminara 
Worldwide, LLC v. Liown Elecs. Co. Ltd., No. 14-cv-3103 (SRN/FLN), 2016 WL 4167954, 
at *4 (D. Minn. Aug. 4, 2016).  Dispositive motions—motions that dispose of claims in a 
lawsuit, including motions for summary judgment or judgment on the pleadings—are most 
often heard by the presiding district judge.  See 28 U.S.C. § 636(b)(1)(A); D. Minn. LR 
72.1(a)(2).  Other than an ambiguous and conclusory reference to the Court’s “inherent 
authority,” Plaintiffs put forth no legal authority to support the availability of such relief in 

connection with a motion to compel.  This will not do.  Therefore, Plaintiffs’ request that 
the undersigned order notification under Minn. Stat. § 13.055, subd. 2(a), is denied. 
D. Attorney Fees & Costs                                             
The Federal Rules of Civil Procedure provide that, when a motion to compel is 
denied, the Court “must, after giving an opportunity to be heard, require the movant, the 
attorney filing the motion, or both to pay the party or deponent who opposed the motion its 

reasonable expenses occurred in opposing the motion, including attorney’s fees.”  Fed. R. 
Civ. P. 37(a)(5)(B).  “But the [C]ourt must not order this payment if the motion was 
substantially justified or other circumstances make an award of expenses unjust.”  Id.  Here, 
the Court finds each party should bear their own attorney fees and expenses. 
                       IV. ORDER                                     

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      
1.  Plaintiffs’ Motion to Compel Discovery (ECF No. 33) is DENIED.   

2.  Each party should bear their own attorney fees and expenses      

3.  All prior consistent orders remain in full force and effect.     

4.  Failure to comply with any provision of this Order or any other prior consistent 
  Order shall subject the non-complying party, non-complying counsel and/or the 
  party such counsel represents to any and all appropriate remedies, sanctions and 
  the like, including without limitation: assessment of costs, fines and attorneys’ 
  fees and disbursements; waiver of rights to object; exclusion or limitation of 
  witnesses,  testimony,  exhibits  and  other  evidence;  striking  of  pleadings; 
  complete or partial dismissal with prejudice; entry of whole or partial default 
  judgment; and/or any other relief that this Court may from time to time deem 
  appropriate.                                                       




Dated: August     7    , 2019           s/ Tony N. Leung                                      
                              Tony N. Leung                          
                              United States Magistrate Judge         
                              District of Minnesota                  

                              Pentel et al. v. Shepard et al.        
                              Case No. 18-cv-1447 (NEB/TNL)