Joyce et al v. North Metro Task Force et al
Filing
124
ORDER granting 37 Plaintiffs Motion for Order Compelling Production of Subpoenaed Documents and Testimony. That the Clerk of Court shall SEAL the tape recordings [i.e., CD] of the Executive Sessions that were reviewed by this court, in camera, and such CD shall not be opened except by further Order of Court; by Magistrate Judge Michael J. Watanabe on 5/18/2011.(erv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00649-CMA-MJW
DANIEL JOYCE and
ROBERT LOPEZ,
Plaintiffs,
v.
NORTH METRO TASK FORCE,
THE CITY OF NORTHGLENN, COLORADO,
THE CITY OF THORNTON, COLORADO,
JAMES NURSEY,
RUSSELL VAN HOUTEN,
JACK BELL,
DANTE CARBONE,
TIMOTHY HERSEE, and
RICHARD REIGENBORN,
Defendants.
ORDER REGARDING
PLAINTIFFS’ MOTION FOR ORDER COMPELLING PRODUCTION OF
SUBPOENAED DOCUMENTS AND TESTIMONY (DOCKET NO. 37)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiffs’ Motion for Order Compelling
Production of Subpoenaed Documents and Testimony (docket no. 37). The court has
reviewed the subject motion (docket no. 37), the response (docket no. 52), and the reply
(docket no. 60). In addition, this court has reviewed, in camera, the tape recordings [in
the form of a CD] of the Executive Sessions related to the Oak Chin investigation, the
leak in the Oak Chin investigation, and the investigation into that leak per this court’s
Order Allowing Limited Wavier of Privilege and for an In Camera, Review (docket no.
2
50). Further, the court has taken judicial notice of the court file and has considered
applicable Federal Rules of Civil Procedure and case law. The court now being fully
informed makes the following findings of fact, conclusions of law, and Order.
In this case, Plaintiffs are claiming that Defendants retaliated against them for
their speech, in violation of the First Amendment, thus entitling them to damages under
42 U.S.C. § 1983.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.
That I have jurisdiction over the subject matter and over the parties
to this lawsuit;
2.
That venue is proper in the state and District of Colorado;
3.
That each party has been given a fair and adequate opportunity to
be heard;
4.
That on February 23, 2011, the parties filed a Stipulated Motion for
Limited Waiver of Privilege and for an In Camera Review (docket
no. 39);
5.
That on March 1, 2011, I granted the Stipulated Motion for Limited
Waiver of Privilege and for an In Camera Review (docket no. 39).
See docket no. 50;
6.
That Plaintiffs have requested in the subject motion (docket no. 37)
production from the North Metro Task Force (“Task Force”) of
information regarding conversations on certain subjects which took
place in Executive Session. The Task Force has objected to
3
production of those conversations under several privileges.
Nevertheless, the Task Force entered into the above Stipulated
Motion (docket no. 39) and has agreed to a limited waiver of the
Executive Session Privilege and other associated privileges, but not
the attorney-client privilege;
7.
That the tape recordings [i.e., CD] of the Executive Sessions are
very lengthy, and this court has now reviewed, in camera, the CD in
light of each party’s proffer as to relevancy of such tape recordings
of the Executive Sessions. See Plaintiffs’ Position Statement
Regarding In Camera Review (docket no. 96) and NMTF [Task
Forces’] Statement of General Position Regarding In Camera
Review (docket no. 55);
8.
Plaintiffs argue that the tape recordings of the Executive Sessions
regarding the Oak Chin investigation are not protected by the state
Executive Session Privilege, are discoverable, and are relevant as
follows:
a.
That the minutes may show the Board’s opposition to
Plaintiffs’ speech, an element in proving retaliation;
b.
That the minutes may be relevant to Plaintiffs’ contention
that the Board was attempting to sweep the Oak Chin case
and the leak investigation under the rug, thus having a
reason to silence the Plaintiffs;
c.
That the minutes may show that the Board knew of the
4
harassment and retaliation occurring against Plaintiffs but
took no action to stop those activities, thus supporting
Plaintiffs’ theory of municipal liability through deliberate
inaction;
d.
That the minutes of the Board’s meeting might show the
influence of politics on its decisions;
e.
That the minutes might show other efforts to thwart or cover
up the Oak Chin investigation;
f.
That the minutes might show certain foot-dragging on the
Board’s part; and
g.
That the minutes might show anything specific that was said
by the Board regarding officers Joyce or Lopez that may be
relevant to Plaintiffs’ case. See docket no. 96;
9.
Plaintiffs further argue that the tape recordings of the Executive
Sessions regarding the Oak Chin investigation are not protected by
the state Executive Sessions Privilege, are discoverable, and are
relevant to their contentions:
a.
That the Board took a general position that disfavored
aggressively pursuing the leak and acted to cover up the
misdeed;
b.
That the Board retaliated against Plaintiffs when they spoke
out about the investigation into the leak;
c.
That the Board discussed Sgt. Carbone’s involvement in the
5
leak and refused to take any action; and
d.
That the Board took the position that the NMTF [“Task
Force] should not work with the DEA and retaliated against
Plaintiff Lopez when he spoke out about the decision. See
January 28, 2011, letter from Plaintiffs’ Counsel attached as
Exhibit A to docket no. 55;
10.
That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
6
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);
A given topic is relevant if it has “the mere tendency” of making any
material fact more or less probable. Fed. Deposit Ins. Corp. v.
Wise, 139 F.R.D. 168, 170 (D. Colo. 1991). See Fed. R. Evid. 401;
11.
That the parties have cited both federal and state law with respect
to the Executive Session Privilege; therefore, I must first determine
whether federal or state privilege law applies in this case.
The Executive Session Privilege and the law enforcement privilege
are designed to allow confidential conversations and free and open
discussion by Board members and to prevent disclosure of law
enforcement techniques and procedures, as well as the sources, of
7
law enforcement personnel and individuals involved in investigation.
See Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D. Pa. 1973);
In re M & L Bus. Machine Co. v. Bank of Boulder, 161 B.R. 689,
693 (D. Colo. 1993); § 24-6-402(3)(a)(I)-(VIII), C.R.S.;
Typically, in federal courts, federal common law governs the
existence of privilege, unless state law supplies the rule of decision
as to an element of the claim or defense. Fed. R. Civ. 501. See
Cutting v. United States, No. 07-02053-REB-MEH, 2008 WL
1775278, at *2 (D. Colo. April 14, 2008). The Advisory Committee
Notes to Rule 501 provide that in nondiversity cases such as this,
the federal law of privilege applies. See Fed. R. Evid. 501
Committee Note (“It is also intended that the federal law of privilege
should be applied with respect to pendent [supplemental] state
claims when they arise in a federal question case.”). See also
Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992) (“We
therefore hold that the federal law of privilege [applies in a federal
question case], even if the [discovery] is relevant to a pendent
[supplemental] state law count which may be controlled by a
contrary state law of privilege.”); Wm. T. Thompson Co. v. General
Nutrition Corp., 671 F.2d 100, 104 (3rd Cir. 1982) (noting that when
privilege issue overlaps with federal and pendent [supplemental]
claims, federal rule in favor of admissibility controls); Bethel v.
8
United States ex rel. Veterans Admin. Med. Center, No. 05-1336PSF-KLM, 2008 WL 45382, at *6 (D. Colo. Jan. 2, 2008) (“In cases
like this one, brought under the Federal Tort Claims Act, federal
common law governs the application of privilege.”) (citing Beller v.
United States, 221 F.R.D. 679, 681 (D.N.M 2003)). Lastly, in
United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir. 1991), the
Eighth Circuit held that in a federal question case involving a §
1983 claim, existence of pendant state law claims held not to
relieve court of obligation to apply federal law of privilege;
12.
That in this case, with the above legal principles in mind, I find that
the state Executive Session Privilege does not apply. I further find
that the federal common law on privilege applies in this case and
not state law privilege. Federal law has not recognized a specific
privilege for records of executive sessions of State Boards, unless
there is another recognized privilege involved, such as the attorneyclient privilege. See Sprague v. Thorm Americas, Inc., 129 F.3d
1355, 1369 (10th Cir. 1997). Under federal common law, the
attorney-client privilege arises (1) where legal advice of any kind is
sought, (2) from a professional legal advisor in his capacity as
such, (3) the communications relating to that purpose, (4) made in
confidence, (5) by the client, (6) are at his instance permanently.
protected, (7) from disclosure by himself or by the legal advisor, (8)
unless the protection is waived. See Williams v. Sprint United
9
Management, Co., No. 03-2200-JWLDJW, 2006 WL 266599, at *2
(D. Kan. Feb. 1, 2006)(unpublished). The doctrine protects from
discovery communications made in confidence between the client
and attorney, but it does not protect the underlying facts contained
within those communications. Upjohn Co. v. United States, 449
U.S. 383, 395-96 (1981). To be covered by the attorney-client
privilege, a communication between a lawyer and client must relate
to legal advice or strategy sought by the client. See id. To the
extent that any statements made during the Executive Session
implicate the attorney-client privilege, then such statements are
privileged from disclosure. In addition, I find that the mere
attendance of an attorney at a Executive Session [meeting] does
not render everything done at said meeting privileged. Lastly, I find
that Defendants have not articulated, with particularity, a specific
attorney-client privilege argument in either Defendants City of
Thornton, James Nursey and Dante Carbone’s Response to
Plaintiffs’ Motion for Order Compelling Production of Subpoenaed
Documents and Testimony (docket no. 52) or in Defendant NMTF
[Task Force] Statement of General Position Regarding In Camera
Review (docket no. 55);
13.
That the court finds that the information contained on the CD which
contains the Executive Session meetings is relevant (see
paragraphs 8 and 9 supra), not privileged, and likely to lead to
10
admissible evidence;
14.
That as to the Report of the investigation into the leak in the Oak
Chin case, Plaintiffs sought such Report from the United States
Attorney for the District of Colorado pursuant to 28 C.F.R. § 16.21,
et seq., and made demands to Assistant United States Attorney
Mark Pestal along with an Affidavit outlying excerpts from the
handwritten notes of Plaintiffs’ counsel’s review of the summary of
such Report. See exhibits 1 through 11, attached to the subject
motion (docket no. 37). In particular, see exhibits 5-B and 9
attached to subject motion (docket no. 37). Exhibit 9 is handwritten
notes of Chief Darr regarding the summary. Based upon Plaintiffs’
counsel’s review of Exhibits 5-B and 9, Plaintiffs argue that the
Report is relevant under Fed. R. Evid. 401 and is discoverable
under Fed. R. Civ. P. 26(b)(1) and that Plaintiffs have complied with
the requirements of 28 C.F.R. § 16.21. In particular, Plaintiffs
argue that the Report is relevant to their case for the following
reasons:
a.
That the Report details the specific speech in which Plaintiffs
engaged;
b.
That the Report may show a motive for Defendants’
retaliation against officers Joyce and Lopez. The summary
that an independent investigatory entity focused on a Task
Force sergeant- then Sergeant Carbone- as a primary
11
suspect in the leak;
c.
That the Report may indicate that the Board failed to
vigorously pursue the investigation into the leak;
d.
That the Report may show that there may well have been
substantial political influence exerted in the Oak Chin case,
providing yet another motive for the Board and other
Defendants to silence the Plaintiffs;
e.
That the Report may show that other members of the Task
Force were concerned about retribution from the Task Force
or their home police agencies for cooperating in the DEA
investigation into the leak;
f.
That the Report may also verify Plaintiffs’ beliefs that their
lives might be in jeopardy if they were required to work with
and under a corrupt police sergeant; and
g.
That the Report might shed light on the credibility of
Defendants;
15.
That the court finds that the Report is relevant, not privileged, and
likely to lead to admissible evidence;
16.
That Plaintiffs have complied with the requirements of 28 C.F.R. §
16.21, et seq. See exhibits 1 through 11, attached to the subject
motion (docket no. 37). In particular, see exhibits 5-B and 9
attached to subject motion (docket no. 37). Exhibit 9 is handwritten
notes of Chief Darr regarding the summary;
12
17.
That according to the summary of the Report, Special Agent Paul
Roach was assigned, along with Special Agent Santavicca, to
investigate the leak in the Oak Chin case, and Plaintiffs are
requesting to depose Special Agent Paul Roach since the Oak Chin
investigation into the leak was performed by the DEA, the Report of
the investigation was authored by the DEA, and the Report was
presented to the United States Attorney’s Office for the District of
Colorado by the DEA. Accordingly, Plaintiffs contend that there is
no one else who can supply complete and accurate information on
the investigation and resulting Report. Although it appears that the
Board of the Task Force assigned two officers to help in the
investigation, they were assigned only to provide assistance as
needed. Therefore, I find that Plaintiffs have established good
cause for deposing Special Agent Paul Roach and that Plaintiffs
should also have access to the Report prior to deposing Special
Agent Roach; and
18.
That a protective order was entered in this case on August 16,
2010 (docket no. 24), and it will protect the concerns of all parties
and non-parties of the requested information in the subject motion.
The protective order will prevent disclosure of any discovery
obtained about the closed Executive Sessions [meetings] except to
the parties to this litigation. This would serve the purpose of the
state Executive Privilege while allowing the search for the truth
13
which is the underpinning of our system of justice. A protective
order will protect the privacy interests of any non-party personnel
who may have been discussed during the Executive Sessions
[meetings]. It makes no sense to allow state Executive Privilege
law to determine what evidence is discoverable in cases brought
pursuant to federal statutes whose central purpose is to protect
citizens from abuses of power by governmental authorities. If state
privilege law controlled, then state authorities could effectively
insulate themselves from constitutional norms simply by developing
privilege doctrines that make it virtually impossible for plaintiffs to
develop the kind of information they need to prosecute their federal
claims.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.
That Plaintiffs’ Motion for Order Compelling Production of
Subpoenaed Documents and Testimony (docket no. 37) is
GRANTED;
2.
That a copy of the tape recordings [i.e., CD] of the Executive
Sessions that were reviewed by this court, in camera, shall be
provided to Plaintiffs by Defendant North Metro Task Force on or
before May 31, 2011;
3.
That the Clerk of Court shall SEAL the tape recordings [i.e., CD] of
14
the Executive Sessions that were reviewed by this court, in camera,
and such CD shall not be opened except by further Order of Court;
4.
That Plaintiffs may take the deposition of Special Agent Paul
Roach, and the parties are to forthwith meet, confer, and set the
deposition of Special Agent Paul Roach consistent with
D.C.COLO.LCivR 30.1;
5.
That Plaintiffs shall serve anew their subpoena for deposition and
subpoena duces tecum regarding the Report on Special Agent Paul
Roach consistent with Fed. R. Civ. P. 45 after the parties meet,
confer, and set a new deposition date for Special Agent Paul
Roach; and
6.
That each party shall pay their own reasonable expenses for the
subject motion (docket no. 37) since I find that under the facts and
circumstances surrounding the subject motion an award of
reasonable expenses would be unjust.
Done this 18th day of May 2011.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?