The dispute arose from a civil rights lawsuit filed after Nebraska State Patrol officers fatally shot Print Zutavern, who had a history of mental illness, at his family ranch in February 2020. Bryan Mick, representing Zutavern's estate, sought to depose NSP about training its officers received on topics including mental health crisis response, use of force, and tactical operations. NSP complied with document requests but refused the deposition, claiming sovereign immunity protection.
Writing for the panel, Circuit Judge Loken distinguished the case from prior precedent in Missouri DNR, explaining that earlier statements about governmental units being "subject to the same discovery rules as other persons" were dicta rather than binding law. "Such a discovery request infringes on Nebraska's autonomy by subjecting it to the process of a judicial tribunal, interferes with public administration, and is unlike the simple document subpoena in Missouri DNR," Loken wrote. The court emphasized that NSP would need five officers spending five hours each preparing, plus seven-hour depositions and attorney time.
The district court had denied NSP's motion to quash the subpoena, with both a magistrate judge and district judge concluding that Missouri DNR established that the Eleventh Amendment doesn't shield states from discovery. NSP argued the deposition would be "disruptive" and require extensive preparation across complex topics. The state agency had already produced documents but drew the line at depositions.
The ruling clarifies that while states aren't categorically immune from all discovery, courts must analyze whether specific requests infringe state autonomy or threaten state treasuries. Circuit Judge Erickson concurred separately, noting that Mick neither disputed NSP's burden estimates nor sought to narrow the broad request covering six topics and five employees.