973 N.W.2d 404
N.D.2022Background
- TigerSwan contracted with Energy Transfer to provide security/investigative services for the Dakota Access Pipeline; the North Dakota Private Investigative and Security Board opened an administrative enforcement proceeding alleging unlicensed activity and obtained documents from TigerSwan via discovery.
- Energy Transfer sought to intervene in the administrative proceeding and to have roughly 16,000 disclosed documents returned or protected as confidential; that intervention request was denied.
- Energy Transfer then sued the Board and TigerSwan seeking injunction, conversion/delivery, and return of the documents; First Look sued the Board separately seeking release of the documents under the open-records law; the cases were consolidated.
- The district court granted partial summary judgment holding the documents are "records" under N.D.C.C. ch. 44-04 (open records) and ch. 54-46 (records retention) unless a specific exemption applies, dismissed Energy Transfer’s claims on the merits, withdrew a TRO, and certified the partial judgment as final under N.D.R.Civ.P. 54(b).
- Energy Transfer appealed; this Court reviewed whether Rule 54(b) certification was proper, whether the materials meet statutory definitions of "record," and whether further discovery was required. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 54(b) certification was proper | Certification was before appeal but Energy Transfer sought immediate review; district court’s certification was authorized to resolve discrete claims | Certification appropriate because partial judgment resolved discrete claims and avoided mootness and duplicative review | Affirmed: no abuse of discretion; certification proper to preserve judicial economy and avoid mootness |
| Whether the disputed materials are "records" under N.D.C.C. ch. 44-04 and ch. 54-46 | Energy Transfer: a document must be "used" or relied upon by the public entity or be relevant to public business to be a record | Board/Tigerswan: receiving documents in the course of an authorized administrative investigation is sufficient | Affirmed: statutory definitions do not require actual use; receiving documents in connection with public/official business makes them records |
| Whether genuine factual disputes (and additional discovery) preclude summary judgment | Energy Transfer: needs more discovery about State practices re protective orders and return of privileged documents (Rule 56(f)) | Board/First Look/TigerSwan: requests are speculative and not shown to be material to the record-definition question | Affirmed: Energy Transfer failed to identify with specificity what discovery would defeat summary judgment; district court did not abuse discretion in denying more discovery |
| Whether an alleged promise of confidentiality by Board counsel is enforceable | TigerSwan: Board counsel promised confidentiality and materials should be returned/enforced | Board: statute prohibits public entities from agreeing to withhold open-record substance; district court denied TigerSwan’s motion | Not decided on merits: Supreme Court lacked jurisdiction to consider because TigerSwan did not perfect a cross-appeal |
Key Cases Cited
- PLS Servs., LLC v. Valueplus Consulting, LLC, 960 N.W.2d 780 (N.D. 2021) (framework for Rule 54(b) certification and interlocutory appeal jurisdiction)
- City of West Fargo v. McAllister, 962 N.W.2d 591 (N.D. 2021) (factors to consider in Rule 54(b) certification)
- Citizens State Bank–Midwest v. Symington, 780 N.W.2d 676 (N.D. 2010) (discussing when Rule 54(b) certification may be appropriate)
- Simmons v. Cudd Pressure Control, Inc., 969 N.W.2d 442 (N.D. 2022) (summary judgment standard)
- Motisi v. Hebron Pub. Sch. Dist., 968 N.W.2d 191 (N.D. 2021) (principles of statutory interpretation)
- Discover Bank v. Bolinske, 950 N.W.2d 417 (N.D. 2020) (court will not consider evidence outside the certified record)