Aery v. Nohre

Background

James Paul Aery, representing himself and proceeding without paying filing fees, filed a motion to compel discovery. The court had previously denied an earlier motion to compel without prejudice because Aery had not identified or attached the disputed discovery requests and responses. The court had also reminded him that representing himself did not excuse compliance with court rules, including District of Minnesota Local Rule 37.1.

Local Rule 37.1 requires a motion to compel to include the text of each disputed interrogatory, request, question, or notice, along with the corresponding answer, response, or objection. Aery again failed to provide all of that information. Because the defendants supplied some of the relevant discovery materials, however, the court decided the disputes to the extent possible.

Discovery standards

The court explained that discovery generally covers nonprivileged information relevant to a claim or defense and proportional to the needs of the case. A party may move to compel an answer, production, or inspection, but a motion to compel is not a vehicle for challenging the truthfulness of an answer that has already been provided. The court also explained that a person proceeding without paying filing fees is not automatically entitled to have the court pay discovery costs, expert-witness fees, copying costs, or witness fees.

Rulings on discovery requests

- Information about bites by Nohre’s canine: To the extent Aery sought clarification of the number of people bitten by the canine, the motion was denied as moot because the defendants had already agreed to provide an exact number. To the extent he sought details about all biting incidents, the motion was denied without prejudice because that information was not part of his original discovery request. The court permitted Aery to serve one additional request for production seeking the information within 30 days.

- Medical records and medical expert: The request for a subpoena to obtain Aery’s medical records from Sanford was denied without prejudice. The court found the records relevant but said Aery had not identified the date range sought or explained how the costs would be paid. The court permitted him to refile a subpoena motion within 30 days, provided it includes the recipient’s name and address, the specific records and date range, an explanation of relevance, and a plan for paying the costs or written confirmation that Sanford would not require payment. The requests to compel Nohre’s deposition, provide Aery with a medical expert, require the defendants to obtain Aery’s records, or require the defendants to retain an expert were denied.

- Definition of “serious offense”: The motion was granted in part as to Interrogatory No. 1. The court found that the defendants had not defined “serious offense” as used in Policy 318.6 and ordered them to supplement their response within 14 days. The request for additional explanations about whether a non-fleeing suspect could be apprehended and whether other policy conditions were present was denied without prejudice because those subjects were not part of the original interrogatory. Aery was permitted to serve two additional interrogatories on those subjects within 30 days.

- Requested policy change: The request to compel Beltrami County to adopt a policy requiring regular canine announcements was denied. The court held that implementing a policy change was not the type of relief available through a motion to compel discovery.

- Definition of “aggressively enforce laws”: The motion was granted to the extent Aery sought a definition of that phrase as used in the Beltrami County Sheriff’s Office policy. The court ordered the defendants to supplement their response to Interrogatory No. 9 within 14 days. The request for an explanation of the phrase’s major goal was denied without prejudice because it was not part of the original interrogatory. Aery was permitted to serve one additional interrogatory on that topic within 30 days.

- Reason shift-sergeant approval was not required: The motion was denied without prejudice because Aery’s original interrogatory asked who approved the canine use, not why approval was unnecessary. The court permitted him to serve one additional interrogatory asking why approval was not required.

- Request for an “honest” answer: The motion was denied. The defendants had answered the interrogatory by denying that Nohre acted aggressively or vulgarly and referring to Nohre’s reports. The court said Aery’s disagreement with the substance or truthfulness of that answer was not a basis for a motion to compel.

- Body-camera information: The motion was denied without prejudice to the extent Aery sought to compel Nohre to explain why he did not have or activate a body camera. The defendants said no Nohre body-camera footage existed because the sheriff’s office had not implemented body cameras for all employees by the date of the incident. The court permitted Aery to serve one additional interrogatory on that subject within 30 days.

- Subpoena for Brian Birt: The request for a subpoena to depose Birt was denied without prejudice. The court found that Birt was identified as a witness and likely had relevant information, but Aery had not shown how he would pay the required witness and mileage fees. Aery was permitted to refile the request within 30 days with Birt’s name and address, the testimony sought, its relevance, and an explanation of how the costs would be paid.

- Map, flashlight information, and weather conditions: The motion was denied as to requests for the map, flashlight details, and weather information. The defendants had responded that they did not possess responsive documents, and the court stated that a party cannot be compelled to produce materials it does not have.

Sanctions and discovery deadline

Aery’s request for sanctions was denied. The court cited his failure to comply with Local Rule 37.1 and noted that much of the requested relief was not properly sought through a motion to compel.

Aery’s request for a general three-month extension of fact discovery was denied in part because he had not shown good cause for a blanket extension. The request was granted in part for a limited extension covering the additional discovery and the possible renewed subpoena motions specifically authorized by the order. The limited extension was subject to the stated 30-day deadlines.

Final order

Judge Tony N. Leung ordered that Aery’s motion to compel was GRANTED IN PART and DENIED IN PART. The defendants had 14 days to supplement their responses to Interrogatory Nos. 1 and 9. Aery had 30 days to serve the permitted additional discovery and to refile motions concerning his medical records and Birt’s deposition. The court also extended the deadline for Aery’s response to the defendants’ summary-judgment motion to January 17, 2023.