Pentel v. Shepard

Randolph Pentel (plaintiff) sued Michael Shepard (defendant), a former Mendota Heights police officer, for impermissibly accessing Pentel’s private information in law enforcement databases in violation of the Driver’s Privacy Protection Act. Pentel served discovery demands to determine whether there were enough other people similarly affected by Shepard’s unauthorized records searches to support a class action. To that end, Pentel served a subpoena for electronic records on the Minnesota Department of Public Safety (DPS), a nonparty. Pentel’s subpoena demanded three-and-a-half years of audit returns from the Law Enforcement Message Switch database (LEMS), which was managed by the Minnesota Bureau of Criminal Apprehension (BCA), a department of DPS. The LEMS database was accessed through computers in police stations or through devices in police squad cars. Access to LEMS was keyed to the device, not the accessing user. A multi-step verification and cross-checking process was necessary to match each LEMS search on a particular device to the law enforcement officer who had made that particular search. As a further complication, LEMS audit returns included information protected by federal law. Therefore, all LEMS audit returns needed to be manually reviewed and redacted before being produced in response to a subpoena. DPS objected to Pentel’s subpoena, arguing that (1) gathering, redacting, and producing the three-and-a-half years of LEMS audit returns demanded would require thousands of manhours and would result in over 300,000 pages of production; and (2) the LEMS audit returns only provided raw access data, which would tell Pentel what searches Shepard ran but not which searches were unauthorized. Pentel conceded that additional discovery would be necessary to determine whether any searches were unauthorized. Following DPS’s objection to the subpoena, Pentel moved to compel.