Carbajal v. Warner et al

Filing 459

ORDERED that 428 Motion for a Protection Order Pursuant to Fed. R. Civ. P. 26 and an Order Granting Mr. Carbajal Leave to Meet With His Investigator and Lead Assistant to Prepare Discovery and Conduct Depositions is DENIED in part, DENIED as moot i n part, DENIED without prejudice in part, and GRANTED in part. On or before 4/1/2013, Defendants shall file a proposed protective order that addresses the confidentiality of Plaintiff's medical records and tax return information. On or before 4/ 15/2013, Plaintiff may file objections to the proposed protective order. Plaintiff shall produce the ordered documents and/or execute the required releases for production of ordered documents within fourteen days of the Court issuing a protective ord er regarding confidentiality of Plaintiff's records. No extension of these deadlines shall be granted absent exceptional circumstances. The Clerk of the Court is directed to maintain the following documents UNDER RESTRICTION at LEVEL 1:5 Docket Nos. 436-3, 436-4, 438-1. By Magistrate Judge Kristen L. Mix on 3/18/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity,
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity, and
ED GRUNINGER, Investigator for the Second Judicial District and Police Officer for the
Denver Police Department, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for a Protection Order
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Pursuant to Fed. R. Civ. P. 26 and an Order Granting Mr. Carbajal Leave to Meet With
His Investigator and Lead Assistant to Prepare Discovery and Conduct Depositions
[Docket No. 428; Filed January 10, 2013] (the “Motion”). On January 30, 2013, Defendants
Carol Warner, David Romero, and Joe Quintana (collectively, the “State Defendants”) filed
a Response [#435]. On January 31, 2013, Defendants Bill Railey, Chris Weldon, Benjamin
Schroeder, and Fred McKee (the “Delta Defendants”) filed a Response [#436]. On
February 7, 2013, Defendants Jeffrey Watts and Edward Gruninger filed a Response
[#438]. On February 15, 2013, Plaintiff filed Replies [#443, #444, #445] to each of the
Responses. The Court has reviewed the pleadings and is fully advised in the premises.
I. Background
Plaintiff generally seeks two forms of relief in the Motion. First, he objects to certain
of Defendants’ written discovery requests and seeks a protective order to shield him from
those inquiries.

Second, he seeks a Court order permitting him to meet with his

investigator and legal assistants to prepare discovery and conduct depositions.
The Court addresses each request in turn, but makes one observation regarding an
oft-repeated point of contention between Plaintiff and Defendants as a preliminary matter.
The parties have on multiple occasions disputed whether and to what extent conferral over
motions has occurred prior to their filing, as generally required by Local Rule 7.1A. See,
e.g., Motion [#428] at 1; Response [#436] at 4; Reply [#444] at 4. However, Local Rule
7.1A. explicitly exempts cases involving pro se prisoners.

Thus, while the Court

encourages conferral between Plaintiff and Defendants regarding the content of motions
prior to filing, the parties are not required to confer, and the parties’ repeated bickering over
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conferral is a non-issue in connection with any motion filed by any party.
II. Request for Protective Order
Plaintiff states that on or around December 9, 2012, the Delta Defendants and
Defendants Jeffrey Watts and Edward Gruninger served Plaintiff with two separate sets of
written discovery. Motion [#428] at 1. Plaintiff objects to certain Requests for Production
of Documents from these Defendants. In part, Plaintiff objects to producing requested
medical records and tax returns. Id. at 2-3. He also objects to producing other documents
because they purportedly consist of legal research and work product documents. Id.
Finally, Plaintiff objects to producing other documents which he asserts are in the public
record and/or are already in Defendants’ possession (apparently information on prior suits
Plaintiff has filed and documents from other cases). Id. Plaintiff did not provide the Court
with copies of the written discovery requests at issue. Defendants provided copies of
Defendants Jeffrey Watts and Edward Gruninger’s First Set of Written Discovery to Plaintiff
[#438-1] and of the Delta Defendants’ Discovery Requests to Plaintiff [#436-1].
At the outset, it is unclear that Plaintiff is specifically contesting any requests for
written discovery from the State Defendants (Carol Warner, David Romero, and Joe
Quintana). No party provided the Court with a copy of written discovery served by the
State Defendants. Plaintiff does not specifically name them in his Motion. Accordingly, to
the extent that Plaintiff may be seeking a protective order with respect to written discovery
served by the State Defendants, the Motion is denied without prejudice.
A.

Legal Standard
Fed. R. Civ. P. 26(b) permits discovery “regarding any matter, not privileged, that
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is relevant to the claim or defense of any party” and discovery of any information that
“appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1). See also Williams v. Bd. of County Comm'rs, 192 F.R.D. 698, 702 (D.
Kan. 2000) (request for discovery should be considered relevant if there is any possibility
the information sought may be relevant to a claim or defense).

Considering that

“[l]imitations on the discovery process necessarily conflict with the ‘fundamental principle
that the public . . . has a right to every man's evidence,’ ” the Federal Rules broadly define
the scope of discovery. Simpson v. Univ. of Colorado, 220 F.R.D. 354, 356 (D. Colo. 2004)
(citing Trammel v. United States, 445 U.S. 40, 50 (1980)). The Court may, however, forbid
the disclosure or discovery, specify terms for the disclosure or discovery, forbid inquiry into
certain matters, or limit the scope of disclosure or discovery to certain matters to protect
a party from undue burden and expense. See Fed. R. Civ. 26(c)(1). Plaintiff, as a pro se
litigant, must follow the same procedural rules that govern other litigants. Nielson v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994).
B.

Medical Records
The three Requests for Production of Documents served on Plaintiff by the Delta

Defendants generally concern: (1) tax returns; (2) falsified evidence and affidavits; and (3)
copies of documents upon which Plaintiff intends to rely at trial. [#436-1] at 4-5. The Delta
Defendants respond to Plaintiff’s Motion by stating that they have not sought production of
any medical records, and thus Plaintiff’s request for a protective order regarding medical
records with respect to the Delta Defendants is baseless and frivolous. Response [#436]
at 2. Plaintiff does not contest the relevancy of his medical records from St. Anthony’s
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Central Hospital on August 28, 2010 or from Denver Health on April 28-30, 2009. Reply
[#444] at 2. Plaintiff states that he will allow release of these records but that no other
medical record is relevant to this litigation. Id.
The Court finds that the Delta Defendants’ broad third request may include medical
records. However, the Court construes Plaintiff’s assertion regarding his medical records
from St. Anthony’s Central Hospital on August 28, 2010 and from Denver Health on April
28-30, 2009 to indicate that these are the only medical records on which he intends to rely
at trial. Thus, it appears that the parties are not at odds with one another regarding this
discovery request.
Accordingly, Plaintiff’s request for a protective order regarding the Delta Defendant’s
Request for Production No. 3 is denied as moot. Concerning medical records, Plaintiff
need only produce his medical records from St. Anthony’s Central Hospital on August 28,
2010 and from Denver Health on April 28-30, 2009 to the Delta Defendants.1
Turning to Defendants Watts and Gruninger, Plaintiff asserts that they are seeking
all of his medical records, including workers’ compensation, pharmaceutical, social security,
DOC, and mental health records. Motion [#428] at 2 & 2 n.1. Defendants Watts and
Gruninger state they will limit their requests to the five years prior to Plaintiff’s Complaint
[#1], which was filed on November 23, 2010.
1.

Relevance

1

Plaintiff is expressly warned that if he later decides that he will use additional medical
records at trial, he is required to supplement his response to the Delta Defendants’ Request for
Production No. 3 and to provide copies of those additional records. Failure to do so may result in
the imposition of sanctions, including denial of admission of those records into evidence at trial.

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As a threshold matter, the Court must consider whether the discovery sought is
relevant to the subject matter of the litigation. Pursuant to Fed. R. Civ. P. 26(b)(1), any
discovery sought must be relevant. Relevancy is broadly construed, and a request for
discovery should be considered if there is “any possibility” that the information sought may
be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204
F.R.D. 679, 689-90 (D. Kan. 2001). “When the discovery sought appears relevant, the
party resisting the discovery has the burden to establish the lack of relevancy by
demonstrating that the requested discovery (1) does not come within the scope of
relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance
that the potential harm occasioned by discovery would outweigh the ordinary presumption
in favor of broad disclosure.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo.
2004) (citations omitted); see also Cont'l Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136
F.R.D. 682, 685 (D. Kan. 1991) (stating that a party resisting discovery based on relevancy
grounds bears the burden of explaining how “each discovery request is irrelevant, not
reasonably calculated to lead to the discovery of admissible evidence, or burdensome”).
Further, the objecting party cannot “sustain this burden with boilerplate claims that the
requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted).
However, when a request for discovery is overly broad on its face or when relevancy is not
readily apparent, the party seeking the discovery has the burden to show the relevancy of
the request. See Paradigm Alliance, Inc. v. Celeritas Tech., LLC, No. 07-1121-MLB, 2008
WL 678700, at *2 (D. Kan. Mar. 7, 2008) (citation omitted).
Plaintiff’s mental health records are relevant because he alleges that he suffered
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emotional distress, “suffering of reputation,” humiliation, mental anguish, and loss of
enjoyment of life. Third Am. Compl. [#254] at 25. He is seeking damages to compensate
him for these non-pecuniary losses. Id. Thus, Plaintiff has put his mental health condition
at issue, making his mental health records relevant. Simpson, 220 F.R.D. at 365; Fox v.
Gates Corp., 179 F.R.D. 303, 305 (D. Colo.1998); LeFave v. Symbios, Inc., No. 99-Z-1217,
2000 WL 1644154, at *4 (D. Colo. Apr. 14, 2000). Discovery of Plaintiff’s mental health
records is likely to lead to the discovery of other admissible evidence.
The Court reaches the same conclusion with respect to Plaintiff’s physical health
records. Plaintiff has alleged that certain Defendants “wrenched his shoulder, separating
it, twisted his wrist, spraining it” and “repeatedly struck [Plaintiff] in the head.” Third Am.
Compl. [#254] at 21. Certain other Defendants allegedly struck Plaintiff with a car,
“throwing him up and to the ground,” then “exiting the car and launching a projectile, and
[striking] him in the head,” causing “serious pain and injury to his head, neck, and back.”
Id. Thus, Plaintiff has put his physical health at issue, making his physical health records
relevant. Simpson, 220 F.R.D. at 365; Fox, 179 F.R.D. at 305; LeFave, 2000 WL 1644154,
at *4. Discovery of Plaintiff’s physical health records is likely to lead to the discovery of
other admissible evidence.
Turning to the period for which such records are relevant, Defendants Watts and
Gruninger are seeking Plaintiff’s medical records from November 23, 2005 through
November 22, 2010. See Response [#438] at 7 (limiting their request “to the five years
prior to Plaintiff’s Complaint,” which was filed on November 23, 2010). Because Plaintiff
may have had preexisting conditions and/or been treated for his alleged injuries beyond his
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initial treatments at St. Anthony’s Central Hospital on August 28, 2010 and at Denver
Health on April 28-30, 2009, the Court finds that more than those four days’ worth of
records are relevant. See Reply [#445] at 2; Phillips v. Tiona, No. 10-cv-00334-PAB-KMT,
2011 WL 587311, at *2 (D. Colo. Feb. 9, 2011). Defendants seek Plaintiff’s medical
records beginning approximately three-and-a-half years prior to his alleged April 2009
injuries. Response [#438] at 7. The Court finds that this time period is not overly inclusive
and the requested documents are therefore relevant. See, e.g., Sheldon, 204 F.R.D. at
689-90 (stating that a request for discovery should be considered if there is “any possibility”
that the information sought may be relevant to the claim or defense of any party).
Discovery of Plaintiff’s medical records is likely to lead to the discovery of other admissible
evidence.
2.

Privilege

The Court next examines application of privileges to Plaintiff’s medical records.
When federal law governs the rule of decision, federal common law governs the existence
of privilege. See Cutting v. United States, No. 07-cv-02053-REB-MEH, 2008 WL 1775278,
at *2 (D. Colo. Apr. 14, 2008). This case was brought pursuant to the Fourth and
Fourteenth Amendments of the United States Constitution. Therefore, federal common law
governs whether the medical records are privileged. See, e.g., Everitt v. Brezzel, 750 F.
Supp. 1063, 1066 (D. Colo. 1990); Hutton v. City of Martinez, 219 F.R.D. 164, 167 (N. D.
Cal. 2003); 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
witness-testimony is relevant to a pendent state law count which may be controlled by a
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contrary state law of privilege.”).
There is no physician-patient privilege recognized by federal common law. Walen
v. Roe, 429 U.S. 589, 602 n.28 (1977). “Accordingly, the court's inquiry regarding the
discoverability of plaintiff's general medical records is governed by relevancy standards
contained in Fed. R. Civ. P. 26 and considerations of confidentiality,” but not privilege.
LeFave, 2000 WL 1644154, at *2. The Court has determined that Plaintiff's physical
medical records are relevant. Moreover, by initiating this lawsuit and making a claim for
compensatory damages relating to physical damages, Plaintiff has waived any applicable
privacy rights to his physical medical records. See Windsor v. Aasen, No.09-00947-REBKMT, 2009 WL 5184170, at *1 (D. Colo. Dec. 18, 2009).
On the other hand, the psychotherapist-patient privilege applies in federal cases.
Jaffee v. Redmond, 518 U.S. 1, 12–13 (1996). However, “[l]ike other testimonial privileges,
the patient may of course waive the protection.” Id. at 15 n.14. A plaintiff waives the
psychotherapist-patient privilege by placing his mental health at issue. Simpson, 220
F.R.D. at 364; see also Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)
(collecting cases holding that privilege is waived when a party puts his medical condition
at issue).
As noted above, Plaintiff seeks damages for emotional distress. He has placed his
psychological condition at issue. Thus, the psychotherapist-patient privilege has been
waived. See Weatherspoon v. Provincetowne Master Owners Ass’n, Inc., No. 08-cv02754-MSK-KLM, 2010 WL 936109, at *3 (D. Colo. Mar. 15, 2010). Defendants are
entitled to discovery of Plaintiff’s mental health records. See Fisher v. Southwestern Bell
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Tel. Co., No. 09-5046, 2010 WL 257305, at *3 (10th Cir. Jan. 25, 2010).
3.

HIPAA

Plaintiff also asserts that the Health Insurance Portability and Accountability Act
(“HIPAA”), Pub.L. 104-191, 110 Stat. 1936, enacted August 21, 1996), protects disclosure
of his medical records in civil litigation. HIPAA was enacted to provide standards for
protection of the privacy of medical information. Wallin v. Dycus, No. 03-00174, 2009 WL
2490127, at *5 (D. Colo. Aug. 13, 2009). Pursuant to the terms of HIPAA, “[a] covered
entity, may not use or disclose protected health information, except as permitted or
required [by other statutory provisions].” 45 C.F.R. § 164.502(a). The covered entity may
disclose medical information to the patient who is the subject of the records. 45 C.F.R. §
164.502(a)(1)(iv). Disclosure of a patient's medical information is permitted when it is
requested by the patient. Id. Pursuant to this Order, Plaintiff is required to request copies
of his medical records for purposes of pursuing his lawsuit. Disclosure of Plaintiff's medical
records to him is not a violation of HIPAA, and production of copies of such records to
Defendants is required by law if Plaintiff seeks to obtain the related damages. See
Weatherspoon, 2010 WL 936109, at *4. Plaintiff's argument regarding HIPAA has no merit.
Based on the foregoing, Plaintiff's Motion for Protective Order pertaining to
production of his medical records from November 23, 2005 through and including
November 22, 2010 is DENIED. Plaintiff’s Motion for Protective Order pertaining to
production of medical records from before November 23, 2005 or from after November 22,
2010 is DENIED as moot, as the parties appear to be in agreement regarding those dates.
Plaintiff shall obtain copies of his medical records for the relevant period and produce
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copies of the records to defense counsel.2
C.

Tax Returns
In their Request for Production of Documents No. 4, Defendants Watts and

Gruninger ask Plaintiff to “[p]roduce copies of federal and state tax returns filed in the past
five (5) years in your possession . . . .” [#438-1] at 5. In their Request for Production of
Documents No. 1, the Delta Defendants ask Plaintiff to “provide [his] federal income tax
returns for each calendar year in which [he] claim[s] to have suffered economic damages
by the Delta Defendants.” [#436-1]. Plaintiff argues that he “is only claiming present and
future damages in connection with lost earnings from his employers” and thus “he is only
required to disclose his W-2 forms.” Motion [#428] at 5.
When considering discovery requests for tax returns, the Court weighs “the need for
privacy against the need for disclosure.” I'mnaedaft, Ltd. v. Intelligent Office Sys., LLC, No.
08-cv-01804-LTB-KLM, 2009 WL 824304, at *2 (D. Colo. Mar. 30, 2009). “The burden lies
with the party seeking discovery to demonstrate a compelling need” for the tax returns. Id.
(internal quotation omitted). Here, according to the Third Amended Complaint, Plaintiff
seeks, in part, “actual economic damages” and “compensatory damages, including but not
limited to those for past and future pecuniary, and non-pecuniary losses.” Third Am.
Compl. [#254] at 25.
Plaintiff has asserted that he is seeking compensatory, consequential, and economic
damages for lost income or wages and loss of earning capacity. Plaintiff’s Response to

2

“Medical records” include physical and mental health records from the Colorado
Department of Corrections and from outside providers; pharmacy records; social security records;
and workers’ compensation records, if any.

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Defendants’ First Discovery Requests [#436-2] at 5-6. Thus, Plaintiff’s tax returns are
relevant to Plaintiff’s claims for damages. See Simpson, 220 F.R.D. at 359. The parties
do not dispute that the tax returns are confidential, as that term is ordinarily applied in the
law. Discovery in federal court is governed by the Federal Rules of Civil Procedure,
regardless of whether federal jurisdiction is based on federal question or diversity of
citizenship. See Everitt v. Brezzel, 750 F. Supp. 1063, 1065 (D. Colo. 1990). Although
federal law does not provide absolute protection from disclosure for confidential financial
information such as that included in personal tax returns, applicable precedent directs the
Court to weigh the need for privacy against the need for disclosure in circumstances
involving requests for disclosure of such information. See, e.g., Fed. Open Market Comm.
of Fed. Reserve Sys. v. Merrill, 443 U.S. 340 (1979). If a state doctrine promoting
confidentiality does not conflict with federal interests, it may be taken into account as a
matter of comity. Gottlieb v. Wiles, 143 F.R.D. 235, 237 (D. Colo. 1992).
Colorado law contains a doctrine promoting confidentiality of tax returns. Pursuant
to Colorado law, courts generally apply the three-part test set forth in Martinelli v. Denver
District Court, 612 P.2d 1083 (Colo. 1980) to determine whether confidential information
should be disclosed during discovery. See, e.g., Corbetta v. Albertson's, Inc., 975 P.2d
718, 720-21 (Colo. 1999). This test requires the court to consider:
(1) whether the individual has a legitimate expectation of nondisclosure; (2)
whether disclosure is nonetheless required to serve a compelling state
interest; and (3) where a compelling state interest necessitates disclosure of
otherwise protected information, how disclosure may occur in a manner
which is least intrusive with respect to the right of confidentiality.
Id. (citing Martinelli, 612 P.2d at 1091). In a subsequent decision, the Colorado Supreme
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Court recognized the “limited applicability of the Martinelli test” in those cases where one
private party seeks disclosure of confidential information from another private party. Stone
v. State Farm Mut. Auto. Ins. Co., 185 P.3d 150, 157 (Colo. 2008). In such cases, the court
noted that “[c]onsideration of a compelling state interest (i.e. the second prong of Martinelli)
. . . has little or no applicability . . . .” 185 P.3d at 158. Accordingly, the Stone court
affirmed that the test set forth in Alcon v. Spicer, 113 P.3d 735 (Colo. 2005), is more
appropriately used in cases involving two private parties and the discovery of confidential
information like that contained in tax returns. Stone, 185 P.3d at 159.
The Alcon test, as set forth in Stone, requires courts to balance the concepts of
“compelling need and least intrusive alternative” and mandates that this inquiry be
considered in light of the particular circumstances of each case. Id. In applying the Alcon
test, the Stone court noted that “[t]he burden lies with the party seeking discovery . . . to
demonstrate a compelling need for the specific information contained within the requested
documents. In responding to the discovery requests, the party opposing discovery can
point to other available sources from which the information can be readily obtained.” Id.
Considering the circumstances of the instant discovery request, this Court likewise finds
that the Alcon test is more appropriately applied, because the second Martinelli factor
involving state interests appears to be unrelated to the issues in this case.
Therefore, pursuant to Alcon, the Court must consider whether Defendants have
demonstrated a “compelling need” for Plaintiff’s tax returns, and whether production of
those documents is the “least intrusive” means of obtaining the information sought. Stone,
185 P.3d at 158. Citing to Plaintiff’s written discovery responses, the Delta Defendants
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assert that Plaintiff has failed to provide information identifying all of his employers for the
relevant period. Response [#436] at 6. They therefore state that they cannot determine
whether the W-2 Wage and Tax Statements provided by Plaintiff encompass all of his
earnings for the relevant period. Id. The Delta Defendants further point to a direct
contradiction by Plaintiff resulting from his initial claim that he had no income for 20082010, but his subsequent production of W-2 Wage and Tax Statements for 2008. Id. at 7.
They assert that production of Plaintiff’s federal tax returns would clarify Plaintiff’s income
for the relevant period.
In light of Plaintiff’s responses to written discovery to date, the Court agrees that
Plaintiff should produce copies of his federal tax returns for the years at issue. The
confusion created by Plaintiff’s failure to answer completely and by his contradictory
responses suffices to establish a “compelling need” for Plaintiff’s federal tax returns
because production of those documents is the “least intrusive” means of obtaining the
information sought. Stone, 185 P.3d at 158. However, Defendants Watts and Gruninger,
the only Defendants to seek Plaintiff’s state tax returns, have failed to clearly demonstrate
why Plaintiff’s state tax returns are necessary, i.e., why they will provide information to
Defendants that is not available on Plaintiff’s federal tax returns. Thus, in light of the
Court’s ruling regarding the federal tax returns, the Court finds that Defendants Watts and
Gruninger have not demonstrated a “compelling need” for the state tax returns.
Accordingly, the Court DENIES Plaintiff’s request for a protective order regarding
his federal tax returns for the relevant years and GRANTS his request for a protective order
regarding his state tax returns. Therefore, Plaintiff is ORDERED to execute the releases
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provided by Defendants allowing them obtain copies of his federal tax returns. Plaintiff
need not execute any release regarding his state tax returns.
D.

Work Product Documents
Plaintiff’s general assertion that Defendants seek work product is insufficient for

purposes of determining whether a protective order is warranted.3 To the extent that
Plaintiff asserts this privilege, he must comply with Fed. R. Civ. P. 26(b)(5) and compile a
privilege log as required therein. See, e.g., Exum v. U.S. Olympic Comm., 209 F.R.D. 201,
206 (D. Colo. 2002) (discussing Court's role in balancing party's need for documents
against harm of disclosure in context of whether to grant protective order). Thus, in order
to obtain a protective order regarding alleged work product documents, Plaintiff must clearly
and specifically state which written discovery questions are inappropriate, state why each
specific question is improper, and, to the extent required by the Federal Rules of Civil
Procedure, compile a privilege log. See generally Fed. R. Civ. P. 26(b)(1) (providing that
discovery relevant if information “appears reasonably calculated to lead to the discovery
of admissible evidence”); Fed. R. Civ. P. 26(b)(5) addressing requirements of a privilege
log). Accordingly, the Court DENIES without prejudice Plaintiff’s request for a protective
order regarding alleged work product documents.
E.

Documents Already Accessible to Defendants
Finally, Plaintiff objects to producing other documents which he asserts are in the

public record and/or are already in Defendants’ possession, apparently referring to

3

For purposes of ruling on the Motion, the Court assumes, without deciding, that the work
product doctrine applies to the work of a pro se, non-lawyer party. See, e.g., McKenzie v. McNeil,
No. 4:11cv45-RH/WCS, 2012 WL 695108, at *1 (N.D. Fla. Mar. 1, 2012).

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information on prior suits Plaintiff has filed and documents from other actions. Motion
[#428] at 2-3. The Court finds that Plaintiff’s objections lack sufficient specificity. However,
regarding Plaintiff’s argument that he is not required to produce certain documents because
those documents may be available in public records, the Court notes that this consideration
is irrelevant. See Hoagland v. Rockin’ R Ranch & Lodge Guest Operations, Inc., No. 2:10cv-478-TC-PMW, 2011 WL 1740152, at *1 (D. Utah May 5, 2011). Plaintiff is required to
produce any documents in his “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1).
The same principle applies to Plaintiff’s other argument regarding documents that
Defendants “should” already have in their possession. Accordingly, Plaintiff’s request for
a protective order regarding these documents is DENIED without prejudice.
III. Miscellaneous Discovery Issues
A.

Notarization
Plaintiff contends that he cannot fulfill his discovery obligations to Defendants

because “the law library staff refuses to notarize any interrogatories in absence of a court
order.” Motion [#428] at 1. However, Plaintiff need not have his discovery responses
notarized; he may attest to the veracity of his responses by swearing to their truth under
penalty of perjury, pursuant to 28 U.S.C. § 1746. Accordingly, the Court DENIES Plaintiff’s
request to the extent he seeks a Court Order requiring law library staff to notarize his
discovery responses.
B.

Restriction of Plaintiff’s Confidential Information
In the Reply [#444] to the Delta Defendants’ Response [#436], Plaintiff brings to the

Court’s attention that certain documents containing information of a private nature were
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filed on the electronic docket by some of the Defendants. See Delta Defendants’ Response
[#436-3] at 2 (tax-related document), [#436-4] at 2-4 (same); Watts & Gruninger’s
Response [#438-1] at 9-15, 17 (social security number and/or birth date). The parties may
not file such documents without redaction or restriction of such private and personal
information. Thus, pursuant to D.C.COLO.LCivR 7.2, the Court sua sponte finds that the
presumption of public access to Court files is outweighed by Plaintiff’s interest in privacy
in his tax records, social security number, and birth date, and that a less restrictive
alternative is not practicable. Accordingly, the Court ORDERS, sua sponte, that the Clerk
of the Court is directed to maintain the following documents UNDER RESTRICTION at
LEVEL 1:4 Docket Nos. 436-3, 436-4, 438-1. Defendants are warned that further filing
of such information without redaction or restriction may result in the imposition of
sanctions.
C.

Depositions and Meeting with Agents
Plaintiff states that he is an indigent party and is unable to bear the costs of

discovery. As discussed further below, the Court notes that Plaintiff’s position in this regard
has changed from the time of the preliminary scheduling conference, when Plaintiff
requested that the Court permit him to take dozens of depositions and stated that he would
find the financial resources necessary to conduct such discovery. Plaintiff now seeks Court
orders allowing him to meet with his investigator and legal assistants to compile an
“electronic file of discovery” to turn over relevant evidence to Defendants and to help him

4

Level 1, the least restrictive, limits access to the documents to the parties and the Court.
See D.C.COLO.LCivR 7.2.

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conduct discovery including depositions.
Before addressing the merits of Plaintiff’s requests, the Court notes that it discussed
depositions with Plaintiff on the record at the Scheduling Conference held on November
5, 2012 [#413]. At that time Plaintiff requested permission to take twenty-five depositions,
fifteen more than are presumptively permitted by the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 26(b)(2), 30. The Court provided a detailed explanation regarding the
expense of taking a deposition, the individuals who may conduct a deposition, and the
necessity and expense of deposition transcripts. The Court also discussed with Plaintiff
less expensive ways he could obtain information through discovery, such as through written
discovery. Plaintiff repeatedly and adamantly insisted that the “funds will be secured” and
that the “moneys will be procured.” Plaintiff’s present plea of indigence is dangerously
close to the an admission that he made a deliberate misrepresentation to the Court on
November 5, 2012. The Court warns Plaintiff that such misrepresentations may
subject him to the imposition of sanctions in the future.
CDOC Administrative Regulation 750-03 § IV.G. permits an offender to meet with
his attorney/agent on Monday through Thursday between the hours of 8 a.m. to 5 p.m.
This regulation also governs access to legal materials. Plaintiff does not explain why the
parameters set by this regulation are not sufficient to accommodate his needs.
Accordingly, the Court DENIES without prejudice his request for a Court Order allowing
him to meet with his investigator/legal assistants.
CDOC Administrative Regulation 750-03 § IV.J. permits depositions at CDOC
facilities. See also A.R. 750-03 § IV.G.10.b. These regulations also permit the use of
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certain recording equipment at depositions held at a CDOC facility. Plaintiff does not
explain why the parameters of these regulations are inadequate to accommodate his
needs. Accordingly, the Court DENIES without prejudice his request for a Court Order
allowing recording equipment to be brought into his facility.
Finally, the Court notes that it previously explained, at the Scheduling Conference
held on November 5, 2012, that a deposition record may not be made by Plaintiff’s mother,
Victoria Carbajal. Federal Rule of Civil Procedure 28(c) states that a “deposition must not
be taken before a person who is any party’s relative, employee, or attorney; who is related
to or employed by any party’s attorney; or who is financially interested in the action.” This
means that neither Plaintiff’s mother, Victoria Carbajal, nor his investigator, John Shull, may
be charged with preserving the deposition testimony for the record. Accordingly, the Court
DENIES Plaintiff’s request for a Court Order allowing Victoria Carbajal or John Shull to
conduct and record depositions.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#428] is DENIED in part, DENIED as
moot in part, DENIED without prejudice in part, and GRANTED in part, as outlined
above.
IT IS FURTHER ORDERED that, on or before April 1, 2013, Defendants shall file
a proposed protective order that addresses the confidentiality of Plaintiff’s medical records
and tax return information.
IT IS FURTHER ORDERED that, on or before April 15, 2013, Plaintiff may file
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objections to the proposed protective order.
IT IS FURTHER ORDERED that Plaintiff shall produce the ordered documents
and/or execute the required releases for production of ordered documents within fourteen
days of the Court issuing a protective order regarding confidentiality of Plaintiff’s
records.
IT IS FURTHER ORDERED that no extension of these deadlines shall be granted
absent exceptional circumstances.
IT IS FURTHER ORDERED, sua sponte, that the Clerk of the Court is directed to
maintain the following documents UNDER RESTRICTION at LEVEL 1:5 Docket Nos. 4363, 436-4, 438-1.
Dated: March 18, 2013

5

Level 1, the least restrictive, limits access to the documents to the parties and the Court.
See D.C.COLO.LCivR 7.2.

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