United States District Court, D. Nebraska
SHANE HARRINGTON, H & S CLUB OMAHA, INC., MELTECH, INC., and MIDWEST GIRLS CLUB, Plaintiffs,
SUSAN STRONG, PETE RICKETTS, THERESA THIBODEAU, PATTY BROOKS, DOUG PETERSON, HOBERT RUPE, ROBERT BATT, JOHN BOLDUC, BRENDA KONFRST, JEAN STOTHERT, TODD SCHMADERER, KEN KANGER, MICHELLE BANG, COLENE HINCHY, PAUL KRATZ, AIMEE MELTON, CHRIS JERRAM, JOHN AND JANE DOE NEBRASKA STATE PATROL OFFICERS #1-#800, In Their Individual Capacities and Official Capacities as Employees of the State of Nebraska; THE CITY OF OMAHA NEBRASKA, JOHN DOE BUILDING INSPECTORS #1 AND #2, JOHN DOE OMAHA POLICE OFFICERS #1 - #10, In Their Individual Capacities and Official Capacities as Employees of the City of Omaha Nebraska; and JOHN AND JANE DOE OMAHA POLICE OFFICERS #1 - #900, Defendants.
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion for
Expedited Discovery (Filing No. 31). Plaintiffs
request leave to conduct discovery before the parties have
conferred as required by Rule 26(f) of the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 26(d)(1)(“A party
may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), except . . . when
authorized by . . . by court order.”). Specifically,
Plaintiffs request an Order requiring the City of Omaha to
produce copies of all body camera footage from the Omaha
Police Department taken on July 21, 2018, between 5:30 p.m.
and 7:00 p.m., at or near the intersection of 72nd and Dodge
Streets and at or near 7301 Farnam Street. Plaintiffs assert
they need this discovery to “obtain a preliminary
injunction and oppose the motions to dismiss that Defendants
have promised to file.” (Filing No. 31-1at p.
Eighth Circuit has not expressly adopted a standard for
considering motions for expedited discovery, although courts
generally use one of two standards. Dorrah v. United
States, 282 F.R.D. 442, 445 (N.D. Iowa 2012).
“Some courts apply a ‘good cause' or
‘reasonableness' standard, while others analyze a
set of factors similar to those for obtaining a preliminary
injunction.” Oglala Sioux Tribe v. Van Hunnik,
298 F.R.D. 453, 455 (D. S.D. 2014). District courts within
the Eighth Circuit generally utilize the “good
cause” standard. See, e.g., Strike 3 Holdings, LLC,
v. Doe, No. CV 18-774, 2018 WL 4210202, at *2 (D. Minn.
Sept. 4, 2018); Nilfisk, Inc. v. Liss, 2017 WL
7370059, at *7 (D. Minn. June 15, 2017); Progressive Cas.
Ins. Co. v. F.D.I.C., 283 F.R.D. 556, 557 (N.D. Iowa
2012); Van Hunnik, 298 F.R.D. at 455. “To
establish good cause, the party seeking discovery must
demonstrate that the need for expedited discovery, in
consideration of [the] administration of justice, outweighs
prejudice to the responding party.” Liss, 2017
WL 7370059, at *7 (internal quotation marks omitted).
“A district court then will “examine the entirety
of the record to date and the reasonableness of the request
[for expedited discovery] in light of surrounding
circumstances.” Id. (quoting Dorrah v.
United States, 282 F.R.D. 442, 445 (N.D. Iowa 2012)).
“[E]xpedited discovery may be appropriate when
injunctive relief is sought because of the expedited nature
of injunctive proceedings.” Coram, Inc. v.
Jesus, No. 8:10CV37, 2010 WL 584000, *1 (D. Neb. Feb.
the circumstances, the Court finds good cause does not exist
warranting early discovery. Plaintiffs assert they need the
body camera footage for the preliminary injunction hearing.
However, Plaintiffs have not yet requested a date for a
preliminary injunction hearing, and after review of Chief
Judge Smith Camp's order denying Plaintiffs' request
for a TRO, the Court is not persuaded that the body camera
footage will be necessary for the Court's ruling. See
Filing No. 33. Moreover, according to Defendants,
Mr. Harrington already produced a video of the incidents and
the requested body camera footage would be “basically
the same footage from another angle.” (Filing No.
34 at p. 4). Plaintiffs have also not demonstrated how
the body camera footage would be necessary to resist
Defendants' motions to dismiss, since courts must rule on
motions to dismiss “on the assumption that all the
allegations in the complaint are true[.]” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
although Plaintiffs' request for body camera footage does
not appear to be particularly burdensome, there does not
appear to be any pressing need for Plaintiffs to obtain that
discovery at this time. In general, a party has an obligation
to preserve evidence when the party knows or should have
known that the evidence is relevant to future or current
litigation. See Stevenson v. Union Pac. R.R. Co.,
354 F.3d 739, 746 (8th Cir. 2004). Defendants have an
obligation to preserve the body camera footage, in the event
this case progresses beyond the pleadings stages.
foregoing reasons, IT IS ORDERED:
Plaintiffs' Motion for Expedited Discovery (Filing
No. 31) is denied.
 Plaintiffs initially also sought
police reports related to Shane Harrington and Club Omaha
from March 1, 2017, through April 21, 2018, but withdrew this
request in their reply brief after reviewing the
representations in the ...