Pentel v. Shepard

Background

Randolph Pentel, Kim Povolny, Michelle Povolny, and Michael Povolny brought a proposed class action alleging violations of the federal Driver’s Privacy Protection Act and the Minnesota Government Data Practices Act. The claims concern alleged improper access by Michael Shepard, a police officer formerly employed by the City of Mendota Heights, to private drivers’ license information.

The motion before the court was filed by Randolph Pentel and Michael Povolny. Kim Povolny and Michelle Povolny had settled their claims. The motion sought records from the Minnesota Department of Public Safety (DPS), a nonparty, showing people other than the plaintiffs whom Shepard allegedly looked up by name or license-plate number from May 25, 2014, through November 3, 2017. The plaintiffs wanted DPS to provide Law Enforcement Message Switch audit returns to the City, have the City determine which accesses were made by Shepard, and identify the accessed individuals.

The Law Enforcement Message Switch database records the agency and device used, the date and time, the type of query, and the information returned, but it does not identify the individual officer who performed an access. The City therefore said it would need multiple cross-checks for each access. DPS estimated that the request could involve about 102,200 searches and 306,600 pages, requiring hundreds or thousands of hours to review and redact protected federal criminal-history information. The City estimated that determining whether Shepard made the accesses could take about 20 months of uninterrupted work and cost approximately $153,380 to $190,952.

Discovery request

The court applied the discovery rules requiring discovery to be relevant and proportional to the needs of the case. Proportionality considers factors such as the importance of the issues, the amount at stake, the parties’ access to information and resources, the importance of the discovery, and whether the burden outweighs the likely benefit. Subpoenas also must not impose an undue burden or expense, especially on a nonparty.

The court concluded that the requested audit returns were not proportional. DPS would face major technical, collection, review, and redaction burdens, and the City would face a separate, time-consuming process for determining whether Shepard made each access. The court found the likely usefulness speculative because the audit returns would show that information was accessed, but not whether the access had a lawful purpose. The court noted that the plaintiffs needed more than evidence of searches to support their federal privacy claims and proposed class; they also needed to show that the searches lacked a lawful purpose.

The court therefore denied the plaintiffs’ motion with respect to the Law Enforcement Message Switch audit returns.

Notification request

The plaintiffs also asked the court to order the City to notify people whose information was involved in accesses included in a 2017 disciplinary action against Shepard under Minnesota law. The court noted that the City’s chief of police had determined that 12 plate queries and two image queries violated policy and law after reviewing Shepard’s suspicious queries.

The court nevertheless denied the notification request. It explained that the plaintiffs were seeking, through a discovery motion, the same notification-related relief requested in one of their claims. The court characterized that relief as dispositive—meaning it would decide part of the lawsuit—and stated that the plaintiffs had not provided adequate legal authority showing that such relief was available through this motion to compel before the magistrate judge.

Fees and order

Because the motion to compel was denied, the court considered whether to award the opponents’ reasonable expenses under the federal discovery rules. It decided that each party should bear its own attorney fees and expenses.

The final order denied the plaintiffs’ Motion to Compel Discovery. It also ordered each party to bear its own attorney fees and expenses, continued prior consistent orders, and stated that violations of the order could lead to appropriate remedies or sanctions. The order did not decide the merits of the alleged violations of the federal or Minnesota privacy statutes.