IRC Champlin Marketplace, LLC v. County of Hennepin
IRC Champlin Marketplace, LLC v. County of Hennepin
2020 WL 5097109 (Minn. Tax Regular Div. 2020)
August 25, 2020
Tien, Wendy J., Judge
Summary
The court granted the Petitioners' motions for protective orders, finding that the requested information constituted confidential commercial information and that the Petitioners had demonstrated good cause for the protective orders. The court also noted that the protective orders were limited to information obtained through the discovery process and that the County may not disseminate such data except as provided by Minnesota law.
IRC Champlin Marketplace, L.L.C., IRC Plymouth Town Center, L.L.C., Petitioners,
v.
County of Hennepin, Respondent
v.
County of Hennepin, Respondent
File Nos: 27-CV-19-6858 | 27-CV-19-6585
Minnesota Tax Court, Regular Division, Hennepin County
Filed: August 25, 2020
Counsel
Thomas R. Wilhelmy, Gauri S. Samant, and Christopher A. Stafford, Fredrikson & Byron, P.A., represent petitioners IRC Champlin Marketplace, L.L.C., and IRC Plymouth Town Center, L.L.C.Sara L. Bruggeman and Jeffrey Wojciechowski, Assistant County Attorney, represent respondent Hennepin County.
Tien, Wendy J., Judge
ORDER
*1 Based upon all the files, records, and proceedings, the Court now makes the following:
ORDER
1. Petitioners’ motions for protective orders are granted. Separate protective orders will issue.
2. Petitioners’ motions for expenses including attorney fees are denied.
IT IS SO ORDERED.
BY THE COURT:
MEMORANDUM
I. BACKGROUND
On April 24, 2019, IRC Champlin Marketplace, L.L.C. (“Champlin”), and IRC Plymouth Town Center, L.L.C. (“Plymouth”), each filed a petition disputing the market value of their subject properties as of January 2, 2018.[1] Beginning on or about January 22, 2020, the County corresponded by email with counsel for Champlin and Plymouth (collectively sometimes “Petitioners”) concerning certain document requests.[2] Specifically, the county assessor requested: (1) copies of leases; (2) a summary of updating, renovating, or remodeling of units or common areas exceeding $5,000 performed since 2016; (3) appraisals performed since 2016; and (4) physical inspections of the subject properties.[3]
The parties corresponded concerning the County's requests and agreed on the property inspection date, which took place on February 21, 2020.[4] They were unable to agree, however, on the production of leases (rather than lease abstracts).[5] Petitioners informed the County they were willing to produce the requested leases, appraisals, and information concerning physical conditions subject to discovery protective orders.[6] Although the parties appear to have agreed in principle to submit to this court a proposed protective order concerning the County's requests, they disagreed about the inclusion of language limiting the use of any responsive documents to this action only.[7] Specifically, although the parties agreed upon language treating such information identically to nonpublic data as defined in the Minnesota Government Data Practices Act (the “Data Practices Act” or “MGDPA”),[8] they disagreed about language explicitly limiting its use to this action, “[e]xcept as otherwise expressly permitted by Minnesota law.”[9] The County asserts the inclusion of that limitation constitutes a “super-protection” in excess of the Data Practices Act, to which Champlin and Plymouth are not entitled.[10] Champlin and Plymouth contend the confidential commercial nature of the requested information merits its protection pursuant to Minnesota Rule of Civil Procedure 26.03(a)(7).[11]
*2 The parties agree generally concerning the scope of the information to be provided,[12] and concerning some aspects of its dissemination, but not its use.[13] The parties agreed to characterize Lease Information (as defined in the proposed protective orders) as nonpublic assessor's data under Minnesota Statutes sections 13.51, subdivision 2, and 13.02, subdivision 9, and that the County may not disseminate such data except as provided by Minnesota law.[14] The parties also agreed that Proprietary Information (as defined in the proposed protective orders) not classified by statute as nonpublic assessor's data shall be granted the same protection from disclosure as nonpublic assessor's data under Minnesota Statutes sections 13.51, subdivision 2, and 13.02, subdivision 9.[15]
The parties disagree, however, concerning the County's permitted use of the information produced by the Petitioners. Champlin and Plymouth request entry of an order providing that, “[e]xcept as otherwise expressly permitted by Minnesota law, nonpublic assessor's data shall be used solely for purposes of this action and Respondent shall not directly or indirectly transfer, disclose, or communicate it or its contents in any way to any person or third party.”[16] They also seek an order as to Proprietary Information granting “protection from any form of direct or indirect transfer, disclosure, or communication by Respondent to any person or third party as nonpublic assessor's data” under the Data Practices Act.[17] The County proposes an order that prohibits it from “disseminat[ing] data covered under Minn. Stat. § 13.51 to any third party except as otherwise permitted by Minnesota law.”[18] Regarding Proprietary Information, the County proposes “protection from any form of disclosure by Respondent as nonpublic assessor's data” under the Data Practices Act.[19] The parties ultimately were unable to reach agreement concerning stipulated protective orders for the court's consideration.
II. GOVERNING LAW
A. Discovery – Generally
*3 Minnesota Statutes, section 271.06, subdivision 7 (2018), provides that, in general, the Minnesota Rules of Civil Procedure govern the procedures in the tax court, where practicable. Trial courts have “considerable discretion in granting or denying discovery requests.” Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987); Montgomery Ward & Co. v. Cty. of Hennepin, 450 N.W.2d 299, 305 (Minn. 1990) (applying Erickson to the tax court). A party may seek compliance with a discovery request by motion to compel discovery. Minn. R. Civ. P. 37.01(b)(2).
B. Discovery – Protective Orders
“To prevent public disclosure of matters produced in discovery, the party or person from whom discovery is sought may move for a protective order under Minn. R. Civ. P. 26.03.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. App. 2000). “A district court has ‘broad discretion’ under Minn. R. Civ. P 26.03 ‘to fashion protective orders and to order discovery only on specified terms and conditions.’ ” In re Paul W. Abbott Co., 767 N.W.2d 14, 17-18 (Minn. 2009) (quoting Erickson, 414 N.W.2d at 409Relevant to these proceedings, Minnesota law provides:
(a) In General. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
....
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way....
Minn. R. Civ. P. 26.03(a)(7). “Generally, the burden of demonstrating good cause [under Rule 26.03] rests with the party seeking a protective order.” Star Tribune v. Minn. Twins P'ship, 659 N.W.2d 287, 293 (Minn. App. 2003). This court previously found good cause and entered protective orders where the petitioner: (1) considers information to be confidential commercial information; (2) pursues adequate measures to protect that information from public disclosure; and (3) might be harmed if the information were disseminated to its competitors. See, e.g., Southdale Ctr., LLC v. Cty. of Hennepin, No. 27-CV-17-6656, 2018 WL 2106479, at *5 (Minn. T.C. Apr. 30, 2018) (citing Mall of Am. Co. v. Cty. of Hennepin, No. TC-16076 et al., 1995 WL 461069, at *3 (Minn. T.C. Aug. 2, 1995)).
Because a properly tailored protective order, consistent with the First Amendment, “prevents a party from disseminating only that information obtained through use of the discovery process,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984), a protective order pursuant to Rule 26.03 is limited to information obtained through the discovery process. See Philip Morris, 606 N.W.2d at 686 (describing role of protective orders “[t]o prevent public disclosure of matters produced in discovery” (emphasis added)); Schoeneckers, Inc. v. Comm'r of Revenue, No. 8881-R, 2017 WL 8683324, at *3 (Minn. T.C. July 25, 2017). A party “may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes.” Seattle Times, 467 U.S. at 34.
III. ANALYSIS
Champlin and Plymouth seek a discovery protective order with respect to certain information requested by the County. The motions of both Champlin and Plymouth are granted.
A. Protective Orders and Information Obtained Through Discovery
*4 The County requests leases, appraisals, and physical condition information concerning the subject properties.[24] The County contends the requested information is beyond the scope of this court's authority to enter a protective order, because it concerns lease, income, and expense information described in Minnesota Statutes section 278.05, subdivision 6 (2018), and accordingly has been requested “pursuant to statute, rather than pursuant to a discovery request.”[25]
This court previously has held Rule 26.03 does not confer the authority on this court to enter protective orders with respect to information a petitioner must disclose to the assessor pursuant to Minnesota Statutes section 278.05, subdivision 6(a) (the “mandatory disclosure rule”), because such disclosures (“mandatory disclosures”) take place outside the discovery process. Southdale, 2018 WL 2106479, at *4. At the hearings on the motions, however, the County agreed that the specific information requested of Champlin and Plymouth was not information petitioners were required to disclose pursuant to the mandatory disclosure rule.[26] Rather, the County acknowledged its requests for leases and other information concerning the subject properties either were made pursuant to section 278.05, subdivision 6(c), or were in the nature of informal discovery requests.[27] The court agrees that the County's requests are not mandatory disclosures, but rather constitute discovery.
Minnesota Statutes section 278.05, subdivision 6(c), provides that “[i]f, after the August 1 deadline set in paragraph (a), a county assessor determines that the actual leases in effect on the assessment date are necessary to properly evaluate the income-producing property, then a county assessor may require that the petitioner submit the leases,” and the petitioner must submit the leases within 60 days of the assessor's request. Actual lease documents, referenced in subdivision 6(c), as opposed to the identification of leases pertaining to the subject property referenced in subdivision 6(a), are not subject to mandatory disclosure. Id., subd. 6(b) (specifying the information required pursuant to subdivision 6(a) “does not include leases”). To the extent a petitioner fails to provide leases requested under subdivision 6(c) within the specified 60-day period, such failure “shall be addressed under Rules of Civil Procedure, rule 37.” Id., subd. 6(c) (stating “[t]he Tax Court shall hear and decide any issues relating to subsequent information requests by a county assessor”). As the plain language of subdivision 6(c) provides that production of leases must be obtained through the discovery enforcement process in Rule 37, the leases the County requested must be compelled through the auspices of this court's jurisdiction. They do not constitute disclosures obtained outside the discovery process.
*5 Moreover, the appraisals and physical condition information requested by the County are not enumerated in subdivision 6(a), and are not mandatory disclosures. Although the County characterizes these as “income[ ] and expense data,” the plain language of the statute does not bear this construction.[28] To give effect to the provisions of that statute, this court does not, “and cannot, add to a statute words intentionally or inadvertently omitted by the Legislature.” Laymon v. Minn. Premier Props., LLC, 913 N.W.2d 449, 454 (Minn. 2018) (quoting J.D. Donovan, Inc. v. Minn. Dep't of Transp., 878 N.W.2d 1, 13 (Minn. 2016)) (applying Minnesota Statutes section 645.16 (2018) that courts shall give effect to all of a statute's provisions). “[N]o room for judicial construction exists when the statute speaks for itself.” Waters v. Comm'r of Revenue, 920 N.W.2d 613, 616 (Minn. 2018) (quoting Comm'r of Revenue v. Richardson, 302 N.W.2d 23, 26 (Minn. 1981)). Rather, as with actual leases, the County's requests for appraisals and physical condition information are discovery requests and “shall be addressed under Rules of Civil Procedure, rule 37.” Minn. R. Civ. P. 26.03. Accordingly, the court is authorized to enter a discovery protective order pursuant to Rule 26.03, provided Champlin and Plymouth meet their burden of demonstrating good cause.
B. Proprietary or Confidential Commercial Information
With respect to all the requested information, Champlin and Plymouth contend that protection is necessary pursuant to Rule 26.03(a)(7) because it is confidential commercial information and they would be harmed if it became available to their competitors or their tenants.[29] Specifically, they express concern that the County, having obtained the requested information,[30] not only could use in connection with the cases at bar, but could disclose it, or use it in a manner that causes it to be disclosed, to third parties.[31] Accordingly, Champlin and Plymouth contend the requested information deserves protection.[32] In support of the motions, Champlin and Plymouth provided affidavits of Raymond Suerth, Vice President and Chief Accounting Officer of IRC Retail Centers, LLC, which holds an indirect ownership interest in both Champlin[33] and Plymouth.[34]
*6 The court finds Mr. Suerth's affidavits concerning the leases, physical condition information, appraisals, and the sales documents sufficient to establish that both Champlin and Plymouth: (1) consider such information to be confidential commercial information; (2) pursue adequate measures to protect that information from public disclosure; and (3) might be harmed if the information were disseminated to its competitors. See Southdale, 2018 WL 2106479, at *5. Although the County disputes that Champlin and Plymouth maintained the confidentiality of the requested information from public disclosure,[35] the County did not submit affidavits contradicting Mr. Suerth's averments or supporting its own contentions.
With respect to both subject properties, Mr. Suerth specifically avers that Champlin and Plymouth take steps to prevent the public dissemination of that information, including, without limitation: (1) the maintenance of internal company policies concerning its management, handling, and dissemination, and providing for adverse employment action in the event of unauthorized use or disclosure;[36] (2) the use of password-protected secured databases and drives to limit access to employees who require access to perform professional duties, and requiring contractors with access to such information to agree to nondisclosure or confidentiality agreements;[37] (3) the incorporation of confidentiality and/or nondisclosure terms within certain leases requested by the County, requiring both parties to the lease to consent in writing to disclosure;[38] and (4) the perpetuation of formalities regarding the confidential status of such information, such as objecting to the release of such information as confidential, marking documents as “confidential,” and including a confidentiality requirement in engagement letters with outside consultants.[39] In addition, concerning the Plymouth subject property, Mr. Suerth avers that Plymouth treats the purchase agreement relating to the March 2020 sale of that subject property as “highly proprietary and strictly confidential,”[40] and that both Plymouth and the buyer in that sale transaction agreed to written confidentiality provisions with respect to the transaction documents.[41]
Furthermore, Mr. Suerth avers, regarding both subject properties, that Champlin and Plymouth consider the dissemination of the requested lease information, property condition information, appraisals, and the sales documents to be financially damaging, were it to occur.[42] Specifically, competitors of Champlin and Plymouth could use physical condition information regarding capital expenditures and deferred maintenance to gain a strategic advantage when competing for tenants, or tenants could use such information to re-negotiate leases.[43]
The County argues that because Minnesota law authorizes the use of the requested information consistent with the Data Practices Act, the entry of a protective order limiting such use constitutes an unwarranted “super-protection,” in excess of the protection afforded to assessor's data under the Data Practices Act.[44] The County's argument is misplaced. First, the basis for this protective order with respect to information sought in discovery is this court's authority under Rule 26.03(a)(7) to issue an order concerning the use of proprietary and confidential commercial information, not whether such information constitutes nonpublic assessor's data (or any other type of not public data). Champlin's and Plymouth's proposed protective orders merely described the extent of the afforded protection as coextensive with the Data Practices Act as it applies to nonpublic assessor's data, see Minn. Stat. §§ 13.02, subd. 9 & 13.51, subd. 2; whether such information constitutes nonpublic assessor's data as a matter of law, however, is not a question presently before the court.[45] See Southdale, 2018 WL 2106479, at *5 (granting motion for discovery protective order on grounds the information at issue was confidential commercial information, “rather than because it might qualify as ‘assessor's data’ ”); Seneca Foods Corp. v. Comm'r of Revenue, No. 8683-R, 2015 WL 4875000, at *4 (Minn. T.C. July 21, 2015) (granting motion for discovery protective order where taxpayer demonstrated “valid business and security concerns justifying the confidentiality of the information”).
*7 Second, the County offers no authority for the proposition that this court cannot limit the County's use of information obtained through discovery, including appraisals, leases, and other like information, pursuant to an appropriate discovery protective order. The County contends “Minnesota law provides authorization for the County to use the requested data in its assessment of real property and in appraisals of properties before the Tax Court.”[46] Although Minnesota law may authorize the use of nonpublic assessor's data by the County, Minnesota law does not prohibit the court from entering an otherwise warranted discovery protective order under Rule 26.03 with respect to information sought through the discovery process, including information that might constitute nonpublic assessor's data within the meaning of section 13.51, subdivision 2.[47] In fact, the Data Practices Act explicitly contemplates that governmental units may be subject to discovery protective orders. See Minn. Stat. § 13.393; Star Tribune, 659 N.W.2d at 299 (noting that government agencies are subject to court rules regarding discovery, including protective orders pursuant to Rule 26.03, and citing section 13.393); Seneca Foods, 2015 WL 4875000, at *4 & n.29 (observing this court has issued discovery protective orders in the past with respect to data covered by the Data Practices Act).
Having met their burden to demonstrate good cause for a protective order, Champlin and Plymouth each may designate the requested information as protected for purposes of discovery as proprietary or confidential commercial information, and limit its use to their respective actions, as set forth in the protective orders that will issue separately.[48]
C. Motion for Expenses Including Attorney Fees
Champlin and Plymouth seek expenses including attorney fees incurred in filing these motions pursuant to Rules 26.03(c) and 37.01(d).[49] The motion for expenses is denied.
Rule 26.03(c) provides that “Rule 37.01(d) applies to the award of expenses incurred in connection with the motion” for a protective order. Rule 37.01(d)(2) and (3) authorize the award of expenses incurred in connection with the entry of a protective order when a motion to compel discovery under Rule 37.01(b)(1) or (2) is denied or is granted in part and denied in part. Read together, Rules 26.03(c) and 37.01(d) are unclear whether an award of expenses, including reasonable attorney fees, is authorized when a party seeks a protective order without a motion specifying an accompanying discovery dispute as enumerated in Rule 37.01(b). See Berry & Co. v. Cty. of Hennepin, No. 27-CV-13-7304, 2017 WL 385783, at *2-3 (Minn. T.C. Jan. 24, 2017) (declining to award fees pursuant to Rule 37.01(d) in the context of opposing a motion to quash a subpoena and for a protective order; examining two unpublished court of appeals decisions setting forth contrary reasoning).
The court need not presently resolve this ambiguity to decide Petitioners’ motions for expenses. In general, to the extent Rule 37.01(d)(1) authorizes the award of expenses in connection with a standalone motion for protective order pursuant to Rule 26.03, the authority to award expenses “where appropriate” is not meant to be routine. Minn. R. Civ. P. 26.03 Advisory Committee Comment (2018 Amendments) (stating 2018 amendments to Rule 26.03 adopt a 2015 change to Fed. R. Civ. P. 26(c), which “is not intended to make cost-shifting a routine part of discovery motions”); Fed. R. Civ. P. 26(c)(1)(B) Committee Note (2015 Amendments) (noting that “[c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding” and the 2015 rule amendment “does not imply that cost-shifting should become a common practice.”).
*8 The record is clear Champlin and Plymouth made a good faith effort to obtain a stipulated protective order without court action. See Minn. R. Civ. P. 37.01(d)(1) (requiring the movant to make a good faith attempt to obtain discovery). Counsel for Champlin and Plymouth submitted supporting affidavits detailing the parties’ attempts to agree to stipulated protective orders.[50] They submitted for the County's consideration a first draft protective order on April 2, 2020;[51] the motions were filed on May 13 (Champlin) and May 15 (Plymouth), at which time the parties had exchanged at least ten emails concerning their differences.[52] This court encourages parties to reach agreement concerning protective orders and other discovery matters whenever possible without motions, to conserve taxpayer and government resources.
The court does not conclude, however, the County's objections to the Petitioners’ proposed limitations on its use of the requested information are not substantially justified, Minn. R. Civ. P. 37.01(d)(1), even though the court ultimately does not believe they are sufficiently meritorious to overcome the Petitioners’ motions. Accordingly, the court declines to penalize the County for attempting to negotiate in good faith a stipulated protective order, even though the parties’ effort was ultimately unsuccessful.
Footnotes
Pet. (filed Apr. 24, 2019) (Plymouth); Pet. (filed Apr. 25, 2019) (Champlin). The Champlin subject property is located at 11406, 11420, and 11468 Marketplace North in Champlin; the Plymouth subject property at 3550 Vicksburg Lane North in Plymouth.
Pet'r’s Mem. Supp. Mot. Prot. Order 2 (filed May 13, 2020) (Champlin); Aff. Gauri Samant (May 13, 2020) ¶ 2 & Ex. A (Champlin); Pet'r’s Mem. Supp. Mot. Prot. Order 2 (filed May 15, 2020) (Plymouth); Aff. Gauri Samant (May 15, 2020) ¶ 2 & Ex. A (Plymouth). Because the submissions in these cases are substantially similar, this Order refers to both the Champlin and Plymouth submissions when appropriate.
Samant Affs. Ex. A-1.
Pet'rs’ Mems. 2; Samant Affs. ¶ 3, Ex. B-13 (email from Laura Wanger to Brett W. Hall (transmitted Feb. 19, 2020)) (referencing property inspection scheduled for February 21, 2020).
Samant Affs. Ex. B-13 (email from Laura Wanger to Brett W. Hall (transmitted Feb. 19, 2020)) (requesting confirmation that County agreed to accept lease abstracts for Plymouth Town Center in lieu of full lease documents); id. at Ex. B-12 to 13 (email from Brett W. Hall to Laura Wanger (transmitted Feb. 20, 2020)) (stating that County does not agree to accept lease abstracts with respect to either Plymouth or Champlin, and formally asks for full lease copies); id. at Ex. B-11 to 12 (email from Brett W. Hall to Laura Wanger (transmitted Mar. 4, 2020)) (stating that County has reviewed lease abstracts provided for Champlin and Plymouth and requesting specific lease documents, which are redacted in the document).
Samant Affs. Ex. B-10 to 11 (email from Thomas Wilhelmy to Jeff Wojciechowski (transmitted Apr. 2, 2020)) (stating that Champlin and Plymouth are prepared to provide requested leases but are “concerned about the highly confidential and proprietary nature of information contained in those leases,” and submitting a proposed protective order); Ex. B-7 to 9 (email from Thomas Wilhelmy to Sara L. Bruggeman (transmitted Apr. 24, 2020)) (referencing informal discovery requests for physical condition information and appraisals, as well as sale information relating to Plymouth, and stating that Champlin and Plymouth treats “all this information as highly confidential and proprietary commercial information”).
Samant Affs. Ex. B-4 to 5 (email from Sara L. Bruggeman to Gauri Samant (transmitted May 5, 2020)) (stating that the County “needs to use this information in its assessment and appraisal of real property”); Ex. B-3 to 4 (email from Gauri Samant to Sara L. Bruggeman to Thomas Wilhelmy (transmitted May 6, 2020)) (seeking to limit use of Proprietary Information and nonpublic assessor's data to uses expressly permitted by Minnesota law); Exs. B-1 to 4 (additional correspondence setting forth disagreement concerning proposed use of information).
Minn. Stat. ch. 13 (2018).
Samant Affs. ¶ 5, Ex. D ¶ 3 (proposed protective orders).
Resp't’s Mem. Opp'n Mot. Prot. Order Related to Mandatory Disclosures 8-9 (filed May 20, 2020) (Champlin); Resp't’s Mem. Opp'n Mot. Prot. Order Related to Mandatory Disclosures 9-10 (filed May 22, 2020) (Plymouth).
Pet'r’s Mem. 9-13 (Champlin); Pet'r’s Mem. 9-15 (Plymouth).
With respect to both Champlin and Plymouth, the requested documents include “Lease Information,” as defined in the proposed protective orders. Samant Affs. Ex. D ¶ 2; Aff. S. Bruggeman (May 20, 2020) ¶ 2, Ex. A ¶ 2 (Champlin); Bruggeman Aff. (May 21, 2020) ¶ 2, Ex. A ¶ 2 (Plymouth) (Exhibits A are both proposed protective orders). They also include “Proprietary Information,” which comprises “Physical Condition Information” and “Appraisal Information” as to both Champlin and Plymouth, Samant Affs. Ex. D ¶ 1.a & b; Bruggeman Affs. Ex. A ¶ 1.a & b, and “Sale Information” as to Plymouth only, Samant Aff. Ex. D ¶ 1.c (Plymouth); Bruggeman Aff. Ex. A ¶ 1.c (Plymouth). The parties’ proposed protective orders do not differ in the definitions or scope of the requested information.
Pet'r’s Mem. 9-13 (Champlin) (contending Rule 26.03(a)(7) warrants a protective order limiting the County's use of the requested information); Pet'r’s Mem. 9-15 (Plymouth) (same); Resp't’s Mem. 8-11 (Champlin) (contending the Data Practices Act authorizes the County's use of the requested information and that the Petitioners’ requested use limitations constitute an unwarranted “super-protection”); Resp't’s Mem. 9-12 (Plymouth) (same).
Samant Affs. Ex. D ¶ 3(f); Bruggeman Affs. Ex. A ¶ 3(f). The parties also agree to classify the data explicitly described in section 13.51, subdivision 2(a) through (f) as nonpublic assessor's data. Id.
Samant Affs. Ex. D ¶ 4; Bruggeman Affs. Ex. A ¶ 4.
Samant Affs. Ex. D ¶ 3.
Samant Affs. Ex. D ¶ 4.
Bruggeman Affs. Ex. A ¶ 3.
Bruggeman Affs. Ex. A ¶ 4.
Pet'r’s Not. Mot. & Mot. Prot. Order (filed May 13, 2020) (Champlin).
Pet'r’s Not. Mot. & Mot. Prot. Order (filed May 15, 2020) (Plymouth).
Resp't’s Mems.
The motions were filed, briefed, and heard separately. Upon hearing, the existence of common questions of law and fact became evident. Accordingly, these matters are consolidated solely for purposes of decision on Champlin's and Plymouth's motions for protective order. Minn. R. Civ. P. 42.01 (authorizing the court to make such orders concerning proceedings concerning common issues of law or fact “as may tend to avoid unnecessary costs or delay”). No other consolidation order has been entered.
Samant Affs. Ex. A-1.
Resp't’s Mems. 3 (citing Southdale, 2018 WL 2106479, at *4; OCC, LLC v. Cty. of Hennepin, No. 27-CV-15-07711 et al., 2018 WL 5780486, at *5 (Minn. T.C. Oct. 26, 2018)). Indeed, the County styled each of its responses to Petitioners’ motions as an opposition to “Motion for Protective Order Related to Mandatory Disclosures.” Resp't’s Mems. 1 (caption). Neither Champlin nor Plymouth, however, captioned its motion as one related to mandatory disclosures.
Tr. 37 (May 27, 2020) (acknowledgment of County counsel that the County does not have grounds to move to dismiss if Champlin does not respond to its request, and only has such grounds concerning mandatory disclosures).
May 27 Tr. 35-40 (acknowledgment of County counsel that the County must bring a motion to compel pursuant to Rule 37 concerning the requested information and that its requests are discovery requests); Tr. 27-29 (May 29, 2020).
Resp't’s Mems. 3. The County offers no explanation why appraisals and physical condition information constitute “income[ ] and expense data.” Id.
Pet'r’s Mem. 1, 10-13 (Champlin); Pet'r’s Mem. 1, 10-15 (Plymouth).
These cases are not consolidated. Accordingly, information produced to the County by Champlin is not produced in connection with Plymouth, or vice versa, by virtue of this Order, or by any protective orders entered pursuant to this Order.
Pet'r’s Mem. 6-7 (Champlin); Pet'r’s Mem. 7-8 (Plymouth). Each Petitioner's concern that the County intends to use the requested information in a case other than its own is not unfounded; the County acknowledges, in its Opposition, that it intends to use the requested information obtained in Champlin in the Plymouth and other cases, and vice versa. Resp't’s Mem. 2 (Champlin) (stating “it is highly likely that the information requested in this action will be used in the appraisal of the property in the ... Plymouth [matter]”); Resp't’s Mem. 2 (Plymouth) (stating “it is highly likely that the information requested in this action will be used in the appraisal of the property in the ... Champlin [matter]”); see also May 27 Tr. 22-23 (explanation of Champlin counsel regarding concerns about use of requested information concerning Champlin subject property in Plymouth case).
Pet'r’s Mem. 10-13 (Champlin); Pet'r’s Mem. 10-15 (Plymouth). Champlin and Plymouth propose protection for the requested information coextensive with the Data Practices Act's treatment of nonpublic assessor's data. Samant Affs. Ex. D ¶¶ 3(f) & 4; Pet'r’s Mem. 13 (Champlin) (requesting “the same protections conferred by the MGDPA for nonpublic data”); Pet'r’s Mem. 14 (Plymouth) (same). To the extent any or all of the requested information may constitute assessor's data within the meaning of the Data Practices Act, no motion to compel has been made by either party, and the application of the Data Practices Act to the disclosure of any such information is not currently before the court. See EOP–Nicollet Mall, L.L.C. v. Cty. of Hennepin, 723 N.W.2d 270, 280 (Minn. 2006) (noting that, under the plain language of the Data Practices Act, its balancing test applies only when a governmental entity “opposes discovery of government data or release of data pursuant to court order” (citing Minn. Stat. § 13.03, subd. 6)); 1300 Nicollet, L.L.C. v. Cty. of Hennepin, No. 27-CV-17-6284 et al., 2019 WL 4648556, at *12 (Minn. T.C. Sept. 18, 2019) (same). In any case, Champlin and Plymouth rely on the proprietary and confidential commercial status of the requested information as grounds for the protective order pursuant to Rule 26.03(a)(7). Pet'rs’ Mems. 9-13 (Champlin); Pet'r’s Mem. 9-15 (Plymouth); May 27 Tr. 43 (response of Champlin counsel to question by court concerning basis for court's authority to enter order limiting disclosure of information: “Your authority, because the information is sought from Petitioner as a discovery request, is under Rule 26.03(a)(7)”).
Aff. Raymond Suerth (Apr. 20, 2020) ¶ 2 (Champlin).
Aff. Raymond Suerth (May 7, 2020) ¶ 2 (Plymouth).
Resp't’s Mem. 4-7 (Champlin); Pet'r’s Mem. 6-9 (Plymouth).
Suerth Affs. ¶ 4.a.
Suerth Affs. ¶ 4.b.
Suerth Affs. ¶ 4.d.
Suerth Affs. ¶ 4.c, e, f.
Suerth Aff. ¶ 4 (Plymouth).
Suerth Aff. ¶ 4.g (Plymouth).
Suerth Affs. ¶ 5.
Suerth Affs. ¶ 5.
Resp't’s Mem. 8-10 (Champlin); Resp't’s Mem. 9-11 (Plymouth).
See EOP–Nicollet Mall, 723 N.W.2d at 280; cf. 1300 Nicollet, L.L.C., 2019 WL 4648556, at *12; Minn. Stat. § 13.03, subd. 6. The parties apparently agreed for purposes of the proposed protective orders to treat the requested information as though it constitutes assessor's data pursuant to the Data Practices Act. Samant Affs. Ex. D ¶ 3; Bruggeman Affs. Ex. A ¶ 3 (both agreeing to classify the data explicitly described in section 13.51, subdivision 2, as nonpublic assessor's data); Samant Affs. Ex. D ¶ 4; Bruggeman Affs. Ex. A ¶ 4 (both agreeing that “[t]he Proprietary Information not classified by statute as nonpublic assessor's data shall be granted the same protection ... as nonpublic assessor's data”). Nothing in this Order constitutes a substantive determination the Proprietary Information (in whole or part) constitutes nonpublic assessor's data pursuant to the Data Practices Act.
Resp't’s Mem. 9 (Champlin) (contending that Minnesota Statutes sections 273.061, subd. 8a, and 273.12 (2018) authorize the use of the requested data in the assessment of real property as well as its exchange with other counties to promote equal assessment, and citing EOP–Nicollet, 723 N.W.2d at 270 n.14, 279-80); Resp't’s Mem. 11 (Plymouth) (same).
Neither this Order nor the protective orders issued hereto purports to limit or otherwise address the treatment of information the County may have obtained by means other than discovery, such as information provided pursuant to the mandatory disclosure rule, or other independent means.
Samant Affs. Ex. D ¶¶ 3 & 4.
Pet'r’s Mem. 13-16 (Champlin); Pet'r’s Mem. 15-17 (Plymouth).
Samant Affs. Exs. B.
Samant Affs. Exs. B-10 to 11.
Samant Affs. Exs. B-1 to 10.