## Facts

- Randolph Pentel and other plaintiffs filed a putative class action against Michael Shepard, a former Mendota Heights police officer, and the City of Mendota Heights, alleging impermissible access to drivers’ private data in violation of the Driver’s Privacy Protection Act (DPPA) and the Minnesota Government Data Practices Act (MGDPA).
- Plaintiffs alleged Shepard accessed private information through law-enforcement databases containing items such as names, addresses, dates of birth, driver’s license numbers, photos, and other sensitive data.
- To evaluate whether Shepard’s alleged conduct affected enough people to support class treatment, plaintiffs sought discovery identifying additional database searches attributable to Shepard.
- Plaintiffs served a subpoena on the Minnesota Department of Public Safety (DPS), a nonparty. The subpoena demanded three-and-a-half years of audit returns from the Law Enforcement Message Switch (LEMS), managed by the Minnesota Bureau of Criminal Apprehension (BCA), a DPS division.
- LEMS access was tied to devices (e.g., a workstation or squad-car device), not to a specific user login. As a result, attributing a given search to Shepard required a multi-step process, including verification and cross-checking against other records.
- DPS objected that compliance would be extremely burdensome because the requested audit returns included information protected by federal law and therefore required manual review and redaction before production.
- DPS asserted the production would involve thousands of hours of work and yield more than 300,000 pages.
- DPS also argued that the audit returns were only “raw access” data: they could show what was queried from a device but would not, without additional evidence, establish whether any particular query lacked a permissible purpose under the DPPA.
- Plaintiffs acknowledged additional discovery would be needed to assess whether particular searches were authorized and, in some instances, to connect device activity to Shepard.
- After DPS refused to produce the audit returns as requested, plaintiffs moved to compel compliance with the subpoena.

## Issues

1. Whether plaintiffs’ subpoena to nonparty DPS seeking three-and-a-half years of LEMS audit returns requested information that was relevant and proportional to the needs of the case under Fed. R. Civ. P. 26(b)(1).
2. Whether enforcing the subpoena as written would impose an undue burden or significant expense on a nonparty, requiring protection under Fed. R. Civ. P. 45(d).
3. Whether the court should modify the subpoena and order a narrower or staged production, given the manual review/redaction burden and the limited ability of raw logs to prove unauthorized access.

## Decision

- The court granted the motion to compel in part and denied it in part.
- The court declined to order DPS to produce the full three-and-a-half years of LEMS audit returns demanded, finding the request disproportionate in light of the burden and expense placed on a nonparty.
- The court ordered a more limited, targeted, and structured approach to obtaining LEMS-related information, directing coordination among plaintiffs, DPS, and party defendants to identify discoverable material while reducing burden and expense.
- The court required the parties to use less burdensome methods first and left open the possibility of additional production if later shown to be necessary and justified under the federal discovery rules.

## Legal Principles

- Discovery is limited to nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, considering factors such as the importance of the issues, the parties’ access to information, resources, the importance of the discovery in resolving issues, and whether burden or expense outweighs likely benefit. (Fed. R. Civ. P. 26(b)(1))
- A subpoena under Rule 45 remains subject to Rule 26’s proportionality limits; relevance alone does not justify imposing heavy production costs. (Fed. R. Civ. P. 26; 45)
- Courts must protect nonparties from undue burden and from significant expense resulting from compliance, and may quash or modify a subpoena to reduce the burden. (Fed. R. Civ. P. 45(d))
- Requests that require extensive manual review and redaction of sensitive information weigh strongly against compelling broad production from a governmental nonparty.
- When requested material provides only indirect proof (for example, raw access logs that do not show whether an access was unauthorized and may require additional attribution steps), courts may require narrower, staged discovery and cooperative procedures before ordering large-scale production.

## Conclusion

In *Pentel v. Shepard*, the court applied Rules 26 and 45 to limit a sweeping nonparty subpoena seeking years of LEMS audit logs, concluding that the requested production would impose excessive burden and expense on DPS relative to its likely value in proving unauthorized DPPA accesses; the court therefore required a narrower, coordinated, and staged approach to discovery rather than full compliance with the subpoena as drafted.


Pentel v. Shepard, 2019 WL 3729770 (2019)