Fiorito v. Metropolitan Council

Background

Plaintiff Michael Fiorito filed a letter (ECF No. 218) seeking clarification about what he characterized as an improper ex parte communication — meaning a one-sided communication with the court without the opposing party's knowledge or participation — between defense counsel and the court. The court issued this order to explain the relevant communications and to set prospective rules for future contact with chambers.

The February 2, 2026 Phone Call

On January 27, 2026, defense attorney Jennifer Jacobs withdrew from the case. On February 2, 2026, defense attorney Rachel Collins called the Magistrate Judge's chambers under Local Rule 7.1(b) to orally request a hearing date in order to file a motion for a protective order. During the call, Collins stated that Plaintiff sought to depose Ms. Jacobs and that Plaintiff had been demanding Ms. Jacobs' personal home address. Collins expressed concern for Ms. Jacobs' safety, raising the possibility that Plaintiff might visit her home to stalk or harm her.

The court subsequently granted the protective order motion without full briefing, but explained that the safety concern expressed during the call did not influence that decision. Instead, the ruling was based on the court's analysis under Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and the fact that the underlying motion for sanctions — on which Plaintiff's request to depose Ms. Jacobs was based — had been denied, rendering the deposition request moot. (See ECF Nos. 146, 147.)

The June 16, 2026 Hearing and Video Deposition Dispute

At a hearing on June 16, 2026, the court addressed, among other things, Defendant's request for an order requiring all depositions be taken by video. The existing Pretrial Scheduling Order (ECF No. 75) already imposed a video-only requirement — itself a compromise between the parties' earlier competing demands — but Defendant sought a new order because Plaintiff was insisting on deposing a proposed witness, Pam Steffen, in person. Defendant had previously cited Plaintiff's alleged "documented history of threatening individuals with harm" as a basis for deposition restrictions. At the hearing, the court raised whether the earlier safety concern about Plaintiff stalking defense counsel continued to factor into the video-only request; defense counsel denied any such continuing concern.

Plaintiff did not address the video deposition issue in his written briefing but argued at the hearing that he needed to depose Ms. Steffen in person because he intended to show her a large number of documents, and he represented that he would arrange a professional setting for the deposition. Based on Plaintiff's representations, the court denied Defendant's request and amended the Pretrial Scheduling Order to allow Plaintiff to take Ms. Steffen's deposition in person (ECF No. 216). Despite receiving the relief he sought, Plaintiff subsequently filed his letter objecting to defense counsel's earlier phone call.

The Court's Ruling on the Ex Parte Communication Issue

The court declined to make any determination about whether defense counsel's February 2, 2026 phone call to chambers constituted an improper ex parte communication. The court noted that under Local Rule 7.1(a) and the Pretrial Scheduling Order, parties are required to meet and confer about the grounds for any proposed motion before contacting the court, and the Pretrial Scheduling Order expressly prohibits ex parte communications. The court stated it was unclear whether defense counsel had complied with these requirements.

To prevent any future occurrences, the court prohibited both parties from calling chambers and directed all future hearing requests to be submitted by email or other written form, with copies provided to the other party.