Reger v. The Associated Press

Background

Michael Reger is a co-founder and former principal of Dakota Plains Holdings, Inc., an oil and gas company. In 2016, shareholders filed a civil lawsuit against Reger and others alleging securities fraud, control person liability, and insider trading. While other defendants settled, Reger went to trial. On June 14, 2022, a jury found him civilly liable for securities fraud and as a control person for Dakota Plains, but not liable for insider trading. On June 16, 2022, The Associated Press (The AP) published an article stating — incorrectly — that Reger had been criminally convicted of securities fraud and stock manipulation, but acquitted of insider trading. The AP's article conflated a civil liability verdict with a criminal conviction.

Reger then sued The AP for defamation, defamation by implication, defamation per se, and intentional infliction of emotional distress, seeking over $50 million in damages. The AP moved to dismiss, arguing Reger is a 'limited purpose public figure' who must show that The AP acted with 'actual malice' — a heightened legal standard requiring proof the publisher knew its statements were false or acted with reckless disregard for their truth or falsity. Judge Doty (the district judge assigned to the case) denied that motion in part, finding the public-figure question required further factual development. The AP then answered the complaint, raising as an affirmative defense that its statements were not made with actual malice.

The Three Motions to Compel

Once discovery (the pre-trial process of exchanging evidence and information) began, The AP served multiple sets of discovery requests on Reger. It also issued subpoenas — court-authorized commands — to two non-parties: Northern Oil & Gas, Inc. (NOG), a company Reger founded and formerly led, and Bahram Akradi, NOG's current chairperson, whom Reger had identified in his initial disclosures as someone with knowledge of reputational harm. The AP filed three separate motions to compel when it was dissatisfied with the responses received.

Legal Standards

The court applied Federal Rule of Civil Procedure 26(b)(1), which entitles parties to discovery of any non-privileged matter relevant to a claim or defense and proportional to the needs of the case. Proportionality factors include the importance of the issues, the amount in controversy, the parties' relative access to information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden of discovery outweighs its likely benefit. The party seeking discovery must first make a threshold showing of relevance; the party resisting must then establish lack of relevance or undue burden. A party cannot be compelled to produce documents it does not possess, and a party's assertion that it has fully produced discoverable materials must be accepted at face value by the court. A motion to compel is a vehicle to require a response — not to challenge the truthfulness of an answer already given.

For subpoenas to non-parties, Rule 45 additionally requires the issuing party to take reasonable steps to avoid imposing undue burden or expense.

Motion to Compel Discovery from Plaintiff Michael Reger — Granted in Part, Denied in Part

Temporal Scope — Denied as Moot After a September 5, 2025 hearing, the parties agreed that Reger would produce tax returns from 2006 to the present, and that 2016 to present is the appropriate temporal scope for all other discovery. The AP's motion as to these issues and as to Request for Production No. 11 (all tax returns) was denied as moot.

Interrogatories

Requests for Production

Attorneys' Fees — Denied Where a motion to compel is granted in part and denied in part, a court may apportion reasonable expenses. The court declined to award fees to either side, concluding that expenses were unwarranted on the record before it.

Motion to Compel NOG — Denied Without Prejudice

NOG had already spent over 400 attorney hours reviewing more than 40,000 documents and had produced materials related to Reger's termination, removal from NOG's website, reputation, and communications following publication of the article. The AP argued that NOG should be required to produce documents going back to 2016, which NOG estimated would require reviewing more than 105,000 documents. The court found that requiring NOG to expand its production before Reger himself completes his discovery obligations would be unduly burdensome and disproportionate. The court noted The AP's position at oral argument — that any burden on NOG was Reger's fault for not producing documents himself — but rejected this as a basis for compulsion. The motion was denied without prejudice; The AP may renew it after Reger completes his production. NOG's request for attorneys' fees was denied, though the court noted this determination might be revisited.

Motion to Compel Akradi — Denied Without Prejudice

The AP's subpoena to Akradi sought, among other things, forensic imaging of his cell phone and searches of his email and financial records. At oral argument, Akradi's counsel offered to have Akradi sit for a deposition instead. The court found that deposing Akradi was a less burdensome alternative that would still allow The AP to explore relevant topics. Before compelling burdensome document production from a non-party, The AP must show it took reasonable steps to avoid imposing undue burden. The court ordered The AP to first subpoena Akradi for a deposition; if that is insufficient, The AP may renew its motion to compel document production. Akradi's request for attorneys' fees was denied.