Montez, et al v. Romer, et al

Filing 5484

ORDER granting in part and denying in part 5407 Motion to Compel; granting in part and denying in part 5462 Motion to Compel; denying as moot 5466 Motion for Extension of Time to File Response/Reply; denying as moot 5483 Motion for Extension of Time to File Response/Reply. Defendants shall produce, if they have not already, discovery consistent with this Order on or before 10/8/2014. By Judge Christine M. Arguello on 09/08/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 92-cv-00870-CMA
JESSE MONTEZ, et al.
Plaintiffs,
v.
JOHN HICKENLOOPER, et al.
Defendants.

ORDER ON DISCOVERY DURING MONITORING PERIOD

This matter is before the Court on class counsel’s Motion to Compel Defendants’
Responses to Plaintiffs’ First Set of Discovery Requests During the Monitoring Period
(Doc. # 5407) and Plaintiffs’ Motion to Compel Defendants’ Responses to Plaintiffs’
Second Set of “Monitoring Period” Discovery Requests and Plaintiffs’ Request for
Expedited Hearing (Doc. # 5462). Both motions are ripe for the Court’s review.
I. BACKGROUND
More than twenty-two years ago, Colorado state prisoners initiated this class
action lawsuit, alleging that state officials violated disabled prisoners’ rights under the
Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and 42 U.S.C. § 1983.
In 2003, the parties agreed to settle the case by entering into a Remedial Plan (the
“Plan”), which required that Colorado Department of Corrections (“DOC”) improve the

facilities and resources for disabled inmates. (Doc. ## 441 (the Plan) 1, 528 (Order
approving settlement)). On September 11, 2012, after spending 32 days hearing
evidence and reviewing reams of post-hearing briefing, Judge Kane concluded that the
DOC was in substantial compliance with the Plan. (Doc. # 5314.) The Plan provided
that, following a finding of substantial compliance, a two-year Monitoring Period would
begin, during which class counsel would monitor the designated facilities to ensure
DOC maintained compliance with the Plan. Judge Kane further indicated in his Order
that “[t]he two-year Monitoring Period triggered by a finding of ‘Substantial Compliance’
shall commence on October 1, 2012.” (Id. at 4.)
With respect to the Monitoring Period, the Plan provides:
Once it has been determined that DOC is in substantial compliance with
this Remedial Plan, the a two year “Monitoring Period” commences during
which class counsel will monitor the designated facilities to ensure
compliance is maintained during this period. During the Monitoring Period,
class counsel may tour each designated facility up to two times a year to
ensure compliance. In addition, class counsel may spend the time and
resources reasonably necessary to monitor compliance during the
Compliance Period. Once the Monitoring Period is complete, this Plan is
no longer in effect unless, prior to the completion of the Monitoring Period,
there has been an objection filed alleging non-compliance. If such
objection is filed, the Monitoring Period will be extended until there has
been a final determination with respect to the merits of the objections.
(Plan § XXXI.) Thus, the Monitoring Period is scheduled to expire and the case will
be dismissed on October 1, 2014, absent either the filing of an objection alleging noncompliance or an order of this Court.

1

Hereinafter, citations to the Plan, which is found at Doc. # 441, will be to “Plan” followed by the
relevant section.

2

II. DISCUSSION
Arguing that they cannot adequately perform their duty to monitor continued
compliance with the Plan unless they are provided certain discovery, class counsel asks
this Court to compel Defendants’ response to various discovery requests. Defendants
respond that, although they are willing to engage in some informal discovery, the plan
does not permit formal discovery.
This Court employs principles of contract construction when construing the Plan.
See United States v. ITT Continental Banking Co., 420 U.S. 223, 237 (1975) (“since
consent decrees . . . have many of the attributes of ordinary contracts, they should be
construed basically as contracts . . . .”) The plain language of the Plan does not provide
for formal discovery. Class counsel attempts to circumvent this failure by arguing that
the Plan’s declaration that “class counsel may spend the time and resources reasonably
necessary to monitor compliance during the Compliance Period” permits discovery, as
a reasonable necessity for discharging their duties. However, that provision appears to
relate to class counsel’s ability to receive payment for the time and costs they incur
during the Monitoring Period. 2 If class counsel believed that formal discovery was
imperative to their monitoring duties, they should have negotiated an explicit provision
to that effect. That being said, Defendants have agreed to provide to class counsel, on
an informal basis, limited discovery. The Court agrees that some discovery to enable

2

Defendants argue that this sentence refers to the “Compliance Period” rather than the
Monitoring Period. However, the location of this sentence in the paragraph relating specifically
to the Monitoring Period implies that it relates to the Monitoring Period. This reading is
underscored by Section XXXIII, which provides a specific procedure for resolving a dispute
as to attorney fees and costs incurred during the Compliance and Monitoring Periods.
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class counsel to determine whether compliance with the Plan has been maintained
during the Monitoring Period is appropriate.
The Court has carefully reviewed class counsel’s requests and finds them to be
overbroad. Class counsel appears to be approaching discovery as if this case were still
in the midst of hard fought litigation. This is not the case. This case was settled more
than 10 years ago. Any discovery allowed by this Court will be narrowly tailored and
limited to information that will allow class counsel to determine whether the DOC has
maintained compliance during the Monitoring Period. As the Court reads class
counsel’s first and second discovery requests, they seek, essentially, all information
regarding inmates who requested screening for disabilities, who were screened, who
were identified as having disabilities, the reasonable accommodations given and
denied, and the substantive reasons for all disability determinations, including
reasonable accommodations. This would include information about the DOC’s
grievance procedures and the substantive explanations for any denials under those
procedures. The time frame for many of these requests is from November 1, 2010,
until the present and, therefore, includes information prior to Judge Kane’s finding of
substantial compliance. In addition, class counsel seeks access to all databases with
relevant information and training materials, policies, and procedures relating to the Plan,
its implementation, and its ongoing viability. While these requests may have been
reasonable during the pendency of litigation and up until Judge Kane found that the
DOC was in substantial compliance with the Plan, in light of the current phase of this
case, they are now overbroad. The Court agrees with Defendants that class counsel’s

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requests must be limited in time—they may seek information relevant to the Monitoring
Period, which began on September 11, 2012, when Judge Kane issued his order finding
substantial compliance. 3 Class counsel’s requests should also be limited to inmates
seeking services relating to the four disabilities covered by the Plan: mobility, hearing,
and vision impairments, and diabetes. (Plan § III.)
Within 30 days of the date of this Order, Defendants shall provide to class
counsel the following limited discovery:
1. A random sample totaling 10 percent 4 of the following:
a. ADA Inmate Coordinator (“AIC”) electronic data files, including the AIC
worksheets, of inmates that have requested class member status from
September 11, 2012 to present. 5
3

Class counsel’s request for information prior to this time frame is overbroad. To the extent
they request that information to compare current systems with prior systems, previous discovery
during the Compliance Period and testimony and evidence given during the compliance
hearings should sufficiently apprise class counsel of the systems in place as of the date that
Judge Kane determined the DOC was in substantial compliance.

4

Another court in this district noted, “[T]here is scant authority regarding the appropriate size of
any sample of the claim and legal files in the class action discovery context, except for implicit
approval of the methodology.” Seabron v. American Family Mut. Ins. Co., 862 F. Supp. 2d
1149, 1154 (D. Colo. 2012) (citing Manual for Complex Litigation, Fourth, § 21.14 (2009)).
Although Seabron was in the liability stage of litigation and dealt with the appropriate sample
size of discovery for class certification purposes, this Court finds the analysis relevant here,
where disclosure of all files would be unduly burdensome, yet some discovery appropriate.
In Seabron, Magistrate Judge Tafoya ordered Defendants disclose 50 out of 233 files. Id. She
also discussed Transamerican Refining Corp. v. Dravo Corp., 139 F.R.D. 619, 621 (S.D. Tex.
1991), in which the court allowed the defendants to serve interrogatories on 50 class members,
which was a sample size of less than one percent of the over 6,000 member class. Because
the total class member size in the instant case is large—approximately 5,000 inmates—the
Court finds 10 percent a sufficient sample for class counsel to make an initial determination
regarding whether the DOC maintains compliance with the Plan. See Tagatz v. Marquette
University, 861 F.2d 1040, 1045 (7th Cir. 1988) (a larger sample is more reliable than a smaller
one); Chichilnisky v. Trustees of Columbia University, No. 91 Civ. 4617(MJL), 1994 WL 88247,
*2 (S.D.N.Y. 1994) (same). This is particularly so where the Court will consider a request for a
larger sampling if the initial random sample shows a statistically significant number of inmates
being denied accommodations, services, programs, or activities under the Plan.

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b. Grievances filed by class members from September 11, 2012 to present,
including those contained in the Grievance Tracking System database or
other pertinent database, if applicable.
c. Accommodation Tracking System files regarding class members’ requests
for accommodations relating to the four types of disabilities covered by the
Plan from September 11, 2012 to present.
d. Inmate requests for disability status relating to the four types of disabilities
covered by the Plan from September 11, 2012 to present and DOC’s
determination relating thereto, including documents related to screening,
screening results, and final disability determinations.
2. To the extent that this information has not already been provided, Defendants
shall also provide to class counsel:
a. All orientation handbooks and videos from each of the public and private
facilities. 6
b. All ADA-related policies, procedures, rules, regulations, and any related
Implementation/Adjustments or Operations Manuals that have been
enacted or implemented since September 11, 2012.
c. All training materials used to apprise DOC staff of ADA, Montez, diabetes,
grievance process, and evacuation procedures.
Within 30 days of the date of this Order, Class counsel may also request, in writing,
information and documentation relating to specific individual inmates, whom counsel
has reason to believe were denied accommodations, services, programs, or activities
under the Plan. This shall include written communications between those specific class
members and the Office of the AIC. Defendant shall provide the requested materials
within 30 days of the date of the request.
5

Defendants indicate that information relating to ADA kites submitted by class members and
responses to those kites are included in the AIC files. Therefore, the Court construes this as
providing sufficient information to comply with Request for Production 5.
6

Defendants aver that they provided “representative samples” of orientation materials from two
intake facilities. However, they must, in addition, provide any other orientation materials from
other facilities.
6

The Court has thoroughly reviewed the discovery requests and responses,
including supporting documents provided by Defendants. Class counsel asserts that
Defendants’ have failed to answer interrogatories and requests for production. The
Court finds that Defendants have adequately responded to the vast majority of class
counsel’s requests. 7
The Court also notes that in many responses, Defendants instruct that class
counsel could obtain the requested information by comparing lists and other information
previously provided. At this stage in the case, interrogatories should be used to clarify
questions class counsel has about the discovery disclosures that cannot be gleaned
from analyzing the data. Interrogatories should not be used as a mechanism to induce
Defendants to analyze the information on class counsel’s behalf.
To the extent Defendants provided random samplings of various categories of
information, the Court finds this sufficient so long as the sampling is equivalent to 10
percent of the total. Should class counsel determine that the random sampling provided
by Defendants demonstrates a statistically significant indication of noncompliance, class
counsel may file an objection as set forth in the Plan.
Both parties are reminded of their professional duty and contractual obligation
under the Plan to “confer and attempt expeditiously and in good faith to resolve their
disagreement.” (Plan § XXXVI.)

7

The Court finds Defendants’ response to Interrogatory # 7, which seeks information relating to
the use of strobe lights in cells, sufficient.
7

Finally, the Court recognizes that class counsel is not in the position to file any
objections at this time and, therefore, will extend the Monitoring Period by 4 months,
until April 1, 2015.
III. CONCLUSION
Accordingly, it is ORDERED that
1. Plaintiffs’ Motion to Compel Defendants’ Responses to Plaintiffs’ First Set of
Discovery Requests During the Monitoring Period (Doc. # 5407) is GRANTED
IN PART AND DENIED IN PART as set forth in this Order.
2. Plaintiffs’ Motion to Compel Defendants’ Responses to Plaintiffs’ Second
Set of “Monitoring Period” Discovery Requests and Plaintiffs’ Request for
Expedited Hearing (Doc. # 5462) is GRANTED IN PART AND DENIED IN
PART as set forth in this Order.
3. Defendants’ Unopposed Motion for Extension of Time to File Response/Reply
as to 5462 Motion to Compel (Doc. # 5466) is DENIED AS MOOT.
4. Plaintiffs’ Unopposed Motion for Extension of Time to File Response/Reply
as to 5462 Motion to Compel (Doc. # 5483) is DENIED AS MOOT.
5. Defendants shall produce, if they have not already, discovery consistent
with this Order on or before October 8, 2014.
6. The parties shall meet and confer and submit a joint motion by September
19, 2014 at 5:00 PM explaining whether Plaintiff’s pending Motion to Stay
Proceedings is rendered moot by this Order.
DATED: September 8, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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