*1 Plaintiffs allege they suffered personal injuries while engaged in protest activities against construction of the Dakota Access Pipeline (DAPL) on November 20-21, 2016, near the Backwater Bridge, in Morton County, North Dakota. They allege their injuries resulted from illegal acts of law enforcement agents. After converting motions to dismiss to motions for summary judgment, the presiding district judge allowed the parties to engage in limited discovery on discrete issues. This order addresses a dispute about a discovery matter—defendants’ obligation under Federal Rule of Civil Procedure 30(b)(6) to produce a witness to testify on a designated topic. The parties participated in an informal conference pursuant to Civil Local Rule 37.1, but the dispute was not resolved, so the court authorized plaintiffs to file the motion now under consideration. (Doc. 200).

Plaintiffs noticed depositions of defendants City of Mandan and Morton County pursuant to Rule 30(b)(6). The City produced witnesses to testify on all but one designated topic included in the deposition notice: “Existence and identification of any persons present within the crowd among Plaintiffs who were plainclothed officers, undercover officers, confidential informants, security or other personnel operating at the behest of Energy Transfer Partners or TigerSwan or any other entity, and/or agents provocateur[.]”[1] (Doc. 222, p. 1).

At the Rule 30(b)(6) deposition, the City asserted a law enforcement privilege on the disputed topic. (Doc. 206, pp. 233-39). Plaintiffs moved to compel the City to produce a witness to testify on the disputed topic. (Doc. 204; 208).[2] The Rule 30(b)(6) notice to the County included an identical topic, but at the time plaintiffs filed this motion, the Rule 30(b)(6) deposition of the County had not yet taken place.

In response to plaintiffs’ motion, defendants filed affidavits of the City's Police Chief and the County's Sheriff. The affiants swore neither the City nor the County had any knowledge on the disputed topic, so defendants contended the “affidavits essentially moot the present dispute.” (Doc. 222, p. 2). But defendants’ response further stated the County would produce the sheriff at the County's Rule 30(b)(6) deposition “to testify on this topic consistent with his affidavit testimony.” Id. at 2. Defendants also stated “further investigation has revealed City of Mandan possesses no knowledge” regarding the disputed topic. Id. at 4. Because defendants asserted the affidavits mooted the dispute, the court directed plaintiffs to file a reply brief addressing the question of whether the affidavits resolved the dispute. (Doc. 213).

In their reply brief, plaintiffs described the following events having occurred subsequent to the filling of this motion: (1) the County agreed it would produce a witness to testify on the disputed topic; (2) the County testified it had placed “an undercover infiltrator” among groups of protesters at various times but not on the dates at issue in this lawsuit; (3) the County testified it did not advise other agencies when it placed undercover officers among protesters; (4) the County testified there was no process in place for the various law enforcement agencies that responded to the protests to advise each other when undercover personnel were placed among the protesters; and (5) the County testified the Federal Bureau of Investigation or “other federal personnel” provided information from a confidential informant or infiltrator that was used to influence law enforcement “preparations, actions, and use-of-force” on the dates at issue in this lawsuit. (Doc. 218, p. 3). Though a transcript of the County's Rule 30(b)(6) deposition is not in the record, the County has not challenged accuracy of plaintiffs’ summary of the deposition testimony. Based on the testimony summary, the court considers the motion moot as to the County.

*2 In their reply, plaintiffs contend the City's “ostensible objection” to produce a witness on the disputed topic has now been waived and that they are therefore entitled to recall the City to produce a properly-prepared witness to testify on the disputed topic. But, as an alternative to recalling the City, plaintiffs ask that they instead be allowed an additional subpoena[3] so they may depose an Intelligence Specialist in the United States Attorney's Office who is “Coordinator of the Law Enforcement Coordinating Committee” for this district. Id. at 4. During an April 27, 2021 status conference, defendants objected to plaintiffs’ request that they be allowed to issue an additional subpoena. (Doc. 220).

Rule 30(b)(6) allows a party to name an entity, such as a governmental agency, as a deponent. A notice of an entity's deposition must describe with reasonable particularity the matters for examination. Further, the rule requires the entity to designate one or more persons who must be prepared to testify about “information known or reasonably available to the organization.”

As recently amended, Rule 30(b)(6) provides, “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” The parties did not confer about the topics listed in the notice of the City's Rule 30(b)(6) deposition, though the notice was served after the rule amendment went into effect. Plaintiffs point to counsel having conferred about other matters after the deposition notice was served and defendants not having raised concern about the disputed topic. (Doc. 208, p. 2 n.2). Defendants argue the Rule 30(b)(6) responsibility to meet and confer rests with plaintiffs and contend plaintiffs’ failure to initiate a discussion is sufficient reason to deny the motion. (Doc. 222, p. 4).

The court views the recent amendment to Rule 30(b)(6) as making both parties responsible to meet and confer in good faith. Had the parties done so, the issue could have been resolved prior to the Rule 30(b)(6) depositions. Since neither party initiated the conferral process, the court will not hold the failure to confer against either party.

In their requests for production of documents to the City, plaintiffs requested documents concerning confidential informants, agent provocateurs, undercover personnel, plain clothed or surveillance officers, or private security operatives who were in the vicinity of the events at issue, and the City objected to the request as seeking “information relating to tactical operations and other confidential, critical and/or sensitive law enforcement information.” Id. at 3.

In its responsive brief, and during the Rule 30(b)(6) deposition of the City, counsel for the City referred to an earlier order of this court, which recognized a law enforcement privilege as protecting portions of documents the County had redacted. In that order, the court stated:

*3 (Doc. 109, pp. 2-3). Though that order recognized existence of a law enforcement privilege and found the privilege applied to portions of certain documents, the court does not view its previous order as resolving the question of the privilege protecting the information plaintiffs sought via the Rule 30(b)(6) depositions. The order did not consider that specific question.

Plaintiffs contend the City has now waived its previous assertion of the law enforcement privilege. (Doc. 218, p. 2). The post-deposition affidavit of the City's Chief of Police states:

(Doc. 210) (paragraph numbers omitted).

One might debate whether the City's statement that it has none of the knowledge described in the deposition notice is equivalent to a waiver of the law enforcement privilege. But regardless of whether the City has waived the previously asserted privilege, it has now stated it has no knowledge of the disputed topic. However, the County's Sheriff made identical statements in his affidavit, (Doc. 211), but plaintiffs’ reply brief summarizes deposition testimony showing the County did in fact have some knowledge of the topic. Plaintiffs will be allowed to reconvene the City's deposition to confirm the City has no knowledge regarding the disputed topic.

In their opening brief, plaintiffs asked that the City be ordered to properly prepare and present a designee to testify on the disputed topic. (Doc. 208, p. 11). But in their reply brief, plaintiffs request a very different remedy—that they be allowed to serve another subpoena to depose a person who has no connection to the City. (Doc. 218, p. 4). The remedy now requested is not appropriate since plaintiffs have not demonstrated the requested remedy is related to the City not providing testimony on the disputed topic at its deposition. The court will, however, allow plaintiffs to reconvene the Rule 30(b)(6) deposition of the City for up to one hour, for the sole purpose of questioning on the disputed topic. The City is ordered to thoroughly prepare a designated witness to testify about any knowledge the City may have on that topic.

Plaintiffs’ motion to compel, (Doc. 204), is MOOT in light of their amended motion. Plaintiffs’ amended motion to compel, (Doc. 208), is MOOT as to the County, GRANTED as to the City, and DENIED to the extent it requests permission to serve an additional subpoena.

IT IS SO ORDERED.

Dated this 3rd day of May, 2021.

Energy Transfer Partners owns the DAPL. The court understands TigerSwan is a private security firm hired by Energy Transfer Partners.

Plaintiffs filed their motion to compel on April 9, 2021, (Doc. 204), and filed an amended motion to compel on April 12, 2021, (Doc. 208).

The district judge's order regarding discovery limited each side to issuing two subpoenas. (Doc. 154).