*1 The 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.

The plaintiffs challenge defendants’ assertion that a law enforcement privilege protects certain documents from disclosure in their entirety. During a February 26, 2021 discovery dispute conference, the court directed defendants to provide a privilege log describing documents being withheld, and the court agreed to review those documents in camera. During that discovery dispute conference, the court stated plaintiffs could submit a brief addressing the law enforcement privilege by March 10, 2021, but plaintiffs have not done so.

Defendants submitted the disputed documents for the court's review,[1] along with a copy of the privilege log they provided to plaintiffs. The privilege log identifies five documents: (1) three documents titled “OPORD – Dakota Access Pipeline Protest (Morton County),” each covering a different time period between November 20, 2016, and November 23, 2016, and (2) two documents titled “North Dakota State & Local Intelligence (NDSLIC) and State Operational Update – Dakota Access Pipeline Protest,” one dated November 21, 2016, and the other dated November 23, 2016. The privilege log describes redactions made to the documents and cites the legal basis for the claimed privilege. The court has reviewed unredacted versions of each of the documents.

From each of the three OPORD documents, content of a section captioned “Communications” has been redacted. In one of the three documents, names of “private citizen informants not involved with issues in this case,” and private phone numbers have been redacted. As to the NDSLIC documents, the only redactions were names and personal information of a law enforcement officer's family members and the home address of a law enforcement officer.

In Roviaro v. United States, the Supreme Court discussed the privilege of the government to withhold from disclosure the identity of persons who “furnish information of violations of law to officers charged with enforcement of that law.” 353 U.S. 53, 59 (1957). The court described the purpose of the privilege as the furtherance and protection of the public interest in effective law enforcement. Subsequent to Roviaro, courts have recognized a law enforcement privilege to protect information other than informant identity. The privilege has been recognized “to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 63 (1st Cir. 2007).

*2 In Commonwealth of Puerto Rico, Puerto Rico sought declaratory and injunctive relief against the United States to compel disclosure of materials related to a Puerto Rico Department of Justice investigation into employees of the Federal Bureau of Investigation. Puerto Rico requested identifying information about the FBI agents involved, as well as information about internal FBI protocols and operating procedures. The First Circuit found the law enforcement privilege encompassed “sensitive law enforcement protocols and techniques” as well as personal information of the FBI agents involved. Here in the Eighth Circuit, a district court recently found the law enforcement privilege protected source code and other details about computer software used in an on-line investigation. United States v. Hoeffener, No. 4:16-cr-374, 2017 WL 3676141, at *18 (E.D. Mo. Aug. 25, 2017).

In addition to case law supporting a law enforcement privilege, defendants also cite N.D. Cent. Code § 44-04-18.3(1). That statute defines a telephone number and home address of any employee of a law enforcement agency as confidential.

The court's review of the unredacted documents confirms that the “communications” information that has been redacted is as described in the privilege log—specific means of confidential communication among law enforcement personnel, including channels and towers to be utilized. The information reflects sensitive law enforcement techniques and procedures. Though one might question whether the passage of time negates the need for protection, the information could compromise law enforcement's use of similar means of confidential communication in the future. Moreover, the court does not view the redacted information as relevant to any of the issues on which discovery has been allowed. As to personal information about law enforcement personnel, there is no question of its protection under N.D. Cent. Code § 44-04-18.3(1).

The defendants have identified a sufficient legal basis for the privileges they assert. The court's review confirms the redacted information is subject to the law enforcement privilege, and the court will not order production of information redacted from any of the five documents at this time.

IT IS SO ORDERED.

Dated this 12th day of March, 2021.

The documents have been added to the docket at 186, but are accessible only to the court.