Carbajal v. Warner et al

Filing 654

ORDER: Denver Defendants' and Defendant Watts' Motions to Reassert [# 645 , # 647 ] are GRANTED. Defendant Watts' Motion for Protective Order [# 498 ] is DENIED. Denver Defendants' Motions to Quash [# 504 , # 505 ] are GRANTED in part and DENIED in part. Plaintiff's Motion [# 649 ] is GRANTED in part and DENIED in part. By Magistrate Judge Kristen L. Mix on 4/28/2015.(alowe)

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, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Jeffrey Watts’ (“Watts”) Motion for a
Protective Order Concerning Plaintiff’s Subpoena to Produce Documents Directed

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at Sprint Telecommunications [#498]1 (the “Motion for Protective Order”);2 on Defendants
City and County of Denver, Gilberto Lucio, James Dixon, Adam Barrett, Joel Smith, Jesse
Rembert, Jay Lopez, Michael O’Neill, Darin Desel, and Perry Speelman’s (the “Denver
Defendants”) Motion to Quash Subpoena [#504]; and on the Denver Defendants’ Motion
to Quash Subpoena [#505]. Plaintiff filed Responses [#513, #515] in opposition to the
Motions, and Defendants filed Replies [#516, #524].
This matter is also before the Court on Defendant Watts’ Motion to Reassert
Motion for a Protective Order Concerning Plaintiff’s Subpoena to Produce
Documents Directed at Sprint Telecommunications [#645]; on the Denver Defendants’
Motion to Reassert Motions to Quash Subpoena [Docs. #504 and 505] [#647]; and on
Plaintiff’s Motion to Resurrect Subpoenas [#528, 529, 530, 531, 532, 533, 534, 535, 536,
537, 538, and 540] and for Copies of Previous Discovery Motions [#498, 500, 504, 505,
512, 513, 515] With Leave to Amend His Responsive Pleadings to Respond to
Defendants’ Motions [#498, 500, 504, 505] That Have Just Been Resurrected Without
Service of Process and Proper Notice [#649] (“Plaintiff’s Motion”). The Court has
considered the Motions, the Responses, the Replies, the case record, and the applicable
law, and is fully advised in the premises.
On June 4, 2013, the Court directed the United States Marshal to serve a number
of subpoena duces tecum on nonparties on behalf of Plaintiff, who proceeds in this matter

1

“[#498]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

This Motion was originally also asserted by Edward Gruninger, who since has been
dismissed as a defendant in this matter. Order [#618].

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as an incarcerated pro se litigant. Order [#497] at 2. The subpoenas were duly served,3
see [##528-540], and Defendant Watts’ Motion for Protective Order [#498] and the Denver
Defendants’ Motions to Quash [#504, #505] were thereafter filed and fully briefed. Before
all of the nonparties responded to the subpoenas and before the Denver Defendants’ and
Defendant Watts’ Motions [#498, #504, #505] were adjudicated, discovery was stayed
based on issues unrelated to the subpoenas. Order [#553] at 8. The Court later denied
these discovery Motions [#498, #504, #505] and others without prejudice due to the stay.
Minute Order [#582] at 2. The parties were informed at that time that “[w]hen and if the
stay of discovery is removed, pending discovery motions may be timely refiled, if
necessary, within thirty (30) days of the issuance of the order lifting the stay.” Id. On
January 26, 2015, the District Judge lifted the stay, Order [#633], and the undersigned
thereafter held a Status Conference, in which the parties were directed to file motions
reasserting any of the previously-denied discovery motions that still required adjudication.
Minute Entry [#643]. In response, the parties filed three Motions [#645, #647, #649].
Before proceeding to the merits of the substantive motions, the Court addresses
preliminary issues. First, the Court grants the Denver Defendants’ and Defendant Watts’
Motions to Reassert [#645, #647].

Accordingly, the Court considers the merits of

Defendant Watts’ Motion for Protective Order [#498] and the Denver Defendants’ Motions
to Quash [#504, #505] below.
Second, to the extent that Plaintiff seeks copies of the briefing on the discovery
motions, the Court grants in part this request. The Court is not required to provide the
parties with additional copies of filings. However, as a one-time courtesy, the Court will

3

Exceptions to this service will be discussed below.

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direct the Clerk of Court to mail to Plaintiff copies of the motions and briefs that are issue
in connection with this Order. See [#498, #504, #505, #513, #515, #516, #524]. The Court
will not direct the Clerk of Court to send additional copies of filings in this lawsuit that are
presently not at issue. See [#500, #512].
Third, to the extent that Plaintiff seeks leave to amend his responses to the Motion
for Protective Order [#498] and Motions to Quash [#504, #505], the request is denied.
These Motions were fully briefed prior to imposition of the stay in this matter, and Plaintiff
has provided no explanation for why this briefing is insufficient and should be amended.
A.

Defendant Watts’ Motion for Protective Order
The Court first addresses Defendant Watts’ Motion for Protective Order [#498]. The

decision to issue a protective order rests within the sound discretion of the trial court.
Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). A protective order may issue upon a
showing of good cause “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . .” Fed. R. Civ. P. 26(c). The good cause
standard of Rule 26(c) is not met by the conclusory statements of the moving party. Klesch
& Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003). Instead, “the party
seeking a protective order must show that disclosure will result in a clearly defined and
serious injury to that moving party.” Id. (citing Exum v. U.S. Olympic Comm., 209 F.R.D.
201, 206 (D. Colo. 2002)).
The subpoena at issue here is directed to the Custodian of Records for Sprint
Telecommunications and seeks:
Dean Carbajal’s complete, unedited, unredacted Sprint Telecommunications
file as kept in the ordinary course of business, from January 1, 2004 through
the date of your response to this subpoena. This shall include but is not
limited to: documentation of all phone numbers registered under social
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security no. [redacted]; documentation for all applications for, or, registration
of pen registers with supporting evidence or affidavits; all e-mails or
correspondence with law enforcement concerning Dean Carbajal’s accounts,
to include all notes and memorandums related thereto; all warrants and
applications for copies of Carbajal’s phone records filed, with or without a
warrant; and all correspondence sent to or from law enforcement, or other
persons, re: Carbajal’s Sprint phone accounts.
Subpoena to Produce Documents, Information, or Objects [#536] at 2.
Plaintiff asserts that Defendant Watts lacks standing to seek a protective order.
Response [#513] at 3-4. “Generally, a party does not have standing to challenge a
subpoena issued to a third party, absent some personal or proprietary interest or privilege
in the materials subpoenaed.” Barton v. Tomecek, No. 11-CV-619-CVE-TLW, 2012 WL
3730066, at *3 (N.D. Okla. Aug. 28, 2012); 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2459 (3d ed. 2008). Defendant Watts is a party to thsi
case and asserts the law enforcement investigative privilege.4 However, this privilege
belongs to the government alone and must be asserted by it. In re M & L Bus. Mach. Co.,
Inc., 161 B.R. 689, 693 (D. Colo. 1993) (citing United States v. Winner, 641 F.2d 825, 831
(10th Cir. 1981) (identifying the law enforcement investigative privilege as one of the

4

The law enforcement investigative privilege is “based primarily on the harm to law
enforcement efforts which might arise from public disclosure of . . . investigatory files.” United
States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981) (quoting Black v. Sheraton Corp., 564 F.2d
531 (D.C. Cir. 1977)). “To assert the law enforcement evidentiary privilege, the responsible official
in the department must lodge a formal claim of privilege, after actual personal consideration,
specifying with particularity the information for which protection is sought, and explain why the
information falls within the scope of the privilege.” Winner, 641 F.2d at 831. “The party claiming
the privilege has the burden of establishing these elements.” Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa. v. F.D.I.C., Civ. A. No. 93-2471-GTV, 1995 WL 104835, at *1 (D. Kan. Mar. 7, 1995) (citation
omitted). “The purpose of the law enforcement privilege is to prevent disclosure of law enforcement
techniques and procedures, to preserve the confidentiality of sources, to protect witness and law
enforcement personnel, to safeguard the privacy of individuals involved in an investigation and
otherwise to prevent interference with an investigation.” In re M & L Bus. Mach. Co., Inc., 161 B.R.
689, 693 (D. Colo. 1993) (citations and internal quotation marks omitted). “The privilege may be
overridden by the movant’s substantial need for the documents and [his] inability to obtain their
substantial equivalent by other means.” Id. (citations and internal quotation marks omitted).

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privileges “exclusively reserved for the Government”)). Without citation to authority,
Defendants Watts replies that he has:
. . . standing to [assert this privilege] as [a] Defendant[ ] in this litigation, and
as [a] former employee[ ] of the Office of the District Attorney for the Second
Judicial District. Moreover, it would do nothing more than elevate form over
substance for this Court to require either Mr. Fuller[, who provided the
government’s affidavit in support of the Motion for Protective Order,] or the
District Attorney for the Second Judicial District to make the same assertions
in another motion for protective order directed at the same subpoena and
supported by the same arguments and evidence.
Reply [#516] at 3.
In this matter, the Second Judicial District is no longer a defendant, and the only
remaining claims against Defendant Watts are asserted against him in his individual
capacity. Defendants Watts concedes that he is not a current employee of the Second
Judicial District. In other words, it appears that Defendant Watts has no authority to assert
a privilege that belongs exclusively to the government. The Court is aware of no legal
authority that permits him to do so under the circumstances of this case and, as stated
above, Defendant Watts has cited none. As Defendant Watts notes, the Second Judicial
District may eventually assert the same argument and present the same evidence in
support of its own motion for a protective order. It is clear that, as the government entity
here concerned, it may do so on its own behalf. See Winner, 641 F.2d at 831.
Accordingly, Defendant Watts’ Motion for Protective Order [#498] is DENIED.5
B.

The Denver Defendants’ Motions to Quash

5

Nothing in this Order prevents the Second Judicial District or other appropriate
governmental entity from asserting the law enforcement privilege and filing a motion to quash or
other appropriate motion. See S.E.C. v. Dowdell, 144 F. App’x 716, 722 (10th Cir. 2005) (“Unlike
Rule 45, Federal Rule of Civil Procedure 26(c) expressly limits who may move for a protective order
to parties or the person from whom discovery is sought.”).

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The Denver Defendants move to quash subpoenas filed on two nonparty law firms:
Killmer, Lane & Newman, LLP (“KL&N”) and Rathod & Mohamedbhai, LLC (“R&M”).
Motions [#504, #505]. Plaintiff broadly seeks the production of all discovery material from
litigation conducted by KL&N and R&M in connection with three cases: (1) Ortega v. City
and County of Denver, No. 11-cv-02394-WJM-CBS (D. Colo. filed Sept. 13, 2011); (2)
Graber v. Miller, No. 09-cv-01029-JLK-MJW (D. Colo. filed May 4, 2009); and (3) Moore
v. Miller, No. 10-cv-00651-JLK-MJW (D. Colo. filed Mar. 19, 2010). Motion [#504] at 2;
Motion [#505] at 3. The City and County of Denver is a named defendant in each of these
matters. Motion [#504] at 3; Motion [#505] at 3. R&M has already at least partially
complied with the subpoena by producing copies of all publicly disclosed materials/filings
sought by Plaintiff in connection with the Ortega matter. Motion [#505] at 2. KL&N to date
has not produced any documents in connection with the subpoena served on it. Motion
[#504] at 2.
The Denver Defendants make several arguments regarding why these two
subpoenas should be quashed.6 However, the law in this district is that a party lacks
standing to seek to quash a subpoena served on a third party, except as to claims of
privilege or on a showing that a privacy issue is implicated. I’mnaedaft, Ltd. v. The
Intelligent Office Sys., No. 08-cv-01804-LTB-KLM, 2009 WL 1537975, at *4 (D. Colo. May
29, 2009); Mona Vie, Inc. v. Amway Corp., No. 08-cv-02464-WDM-KLM, 2009 WL 524938,
at *2 (D. Colo. Mar. 2, 2009); Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo.1997);

6

Plaintiff’s argument asserting that the Denver Defendants are not permitted to make any
argument because the Motions were untimely is without merit. Response [#515] at 1. Fed. R. Civ.
P. 45(d)(2)(B) provides a fourteen-day deadline to serve objections to production of the requested
documents. The rule does not set a deadline by which motions to quash must be filed with the
Court.

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Broadcort Capital Corp. v. Flagler, 149 F.R.D. 626, 628 (D. Colo.1993). Accordingly, the
Denver Defendants lack standing to make most of the arguments made (regarding, for
example, the return of documents to Plaintiff’s mother) in support of quashing the
subpoenas. See Motion [#504] at 5-6; Motion [#505] at 5-6.
The Denver Defendants do raise a privacy issue, however, because many of the
documents sought by Plaintiff are subject to protective orders entered in Ortega, Graber,
and Moore. Motion [#504] at 3; Motion [#505] at 3; Ex. A, Graber & Moore Protective
Orders [#504-1]; Ex. A, Ortega Stipulated Protective Order [#505-1]. In United Nuclear
Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), the Tenth Circuit
recognized that protective orders “allow the parties to make full disclosure in discovery
without fear of public access to sensitive information and without the expense and delay
of protracted disputes over every item of sensitive information, thereby promoting the
overriding goal of the Federal Rules of Civil Procedure, ‘to secure the just, speedy, and
inexpensive determination of every action.’” Therefore, in light of the important policy
considerations underlying protective orders, the courts have found that a protective order
that concerns the preservation of privileges and confidentiality endures beyond the closing
of a case, and other courts should not disregard such a protective order. See In Re
Commercial Fin. Servs., Inc., 247 B.R. 828, 844 (Bankr. N.D. Okla. 2000) (citing Pub.
Citizen v. Liggett Grp., Inc., 858 F.2d 775, 781-82 (1st Cir. 1988); State of Florida v. Jones
Chems., Inc., No. 90-875-CIV-J-10, 1993 WL 388645, at *2-3 (M.D. Fla. 1993)). Moreover,
the well-established rule is that only the court that enters a protective order retains the
power to modify it. See United Nuclear Corp., 905 F.2d at 1427. Where, as here, the case
involves materials and information which are restricted from public access, such as

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materials produced under a protective order, United Nuclear directs that once the issue is
properly raised in the court that entered the protective order, it must weigh the rights of the
private party litigants who produced the materials and the reasons and policies for the
restrictions against the interests of collateral and other litigants in disclosure of such
material. United Nuclear, 905 F.2d at 1428. The correct procedure for a party seeking to
challenge, modify, or enforce that order is to intervene in the case in which the order was
issued. See id. at 1427; Flint Hills Scientific, LLC v. Davidchack, 2000 WL 33314112, at
*2 (D. Kan. Mar. 27, 2000).
The Court will not allow Plaintiff to circumvent the protections provided in the
protective orders in Ortega, Graber, and Moore by obtaining the Denver Defendants’
privileged and/or confidential documents from KL&N and R&M. Indeed, in United Nuclear,
the court noted that “federal civil discovery may not be used merely to subvert limitations
on discovery in another proceeding . . . [and] a collateral litigant has no right to obtain
discovery materials that are privileged or otherwise immune from eventual involuntary
discovery in the collateral litigation.” 905 F.2d at 1428 (citing Wilk v. Am. Med. Ass’n, 635
F.2d 1295, 1300 (7th Cir. 1980)). Moreover, the undersigned lacks authority to modify the
protective orders in Ortega, Graber, and Moore to allow for the discovery of these
documents, or even to order that the documents be produced to Plaintiff pursuant to the
protective orders, because the protective orders were not entered in the present litigation.
See Benton v. Bd. of Cnty. Comm’rs, No. 06-cv-01406-PSF-MEH, 2007 WL 2071638, at
*1 (D. Colo. July 16, 2007) (“[T]he Court will not require the production of any documents
actually designated as confidential in [a separate litigation], nor any privileged documents.
The court that entered the protective order in that case has jurisdiction to address the issue

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of production of confidential documents.”); Kahle v. Adams County, No. 04-cv-01536-LTBCBS, 2007 WL 2381403, at *1 (D. Colo. Aug. 16, 2007) (recognizing court's ongoing
jurisdiction over the protective order it entered). To the extent that KL&N and R&M are in
possession of documents that are responsive to the subpoenas and not covered by the
protective orders entered in Ortega, Graber, and Moore, the Court finds that these
documents should be produced.
Accordingly, the Motions to Quash [#504, #505] are granted in part, to the extent
that KL&N and R&M shall not produce documents that are covered by the protective orders
entered in Ortega, Graber, and Moore.
C.

Plaintiff’s Motion
The only issue not yet addressed in Plaintiff’s Motion [#649] is the resurrection of

subpoenas served on nonparties before this case was stayed. Because the stay was
implemented before all of the nonparties fully responded to the subpoenas, and because
the stay has now been lifted, the nonparties must be informed that responses are needed
to the original subpoenas. The Court sets a new deadline by which the nonparties must
respond to the subpoenas by either making the requested production, by making objections
to production or by filing motions to quash. Accordingly, Plaintiff’s Motion is granted in
part to the extent delineated in the Conclusion of this Order.
D.

Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Denver Defendants’ and Defendant Watts’

Motions to Reassert [#645, #647] are GRANTED.
IT IS FURTHER ORDERED that Defendant Watts’ Motion for Protective Order
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[#498] is DENIED.
IT IS FURTHER ORDERED that the Denver Defendants’ Motions to Quash [#504,
#505] are GRANTED in part and DENIED in part. The Motions to Quash are granted to
the extent that KL&N and R&M shall not produce documents that are covered by the
protective orders entered in Ortega, Graber, and Moore. The Motions to Quash are denied
as to all other relief sought.7
IT IS FURTHER ORDERED that Plaintiff’s Motion [#649] is GRANTED in part and
DENIED in part. The Motion is granted to the extent that the Clerk of Court shall mail to
Plaintiff copies of the following motions and briefs: #498, #504, #505, #513, #515, #516,
#524. The Motion is denied to the extent that the Clerk of Court shall not send copies of
the following filings at this time: #500, #512. The Motion is further denied to the extent that
Plaintiff seeks leave to amend his responses to the Motion for Protective Order [#498] and
Motions to Quash [#504, #505]. The Motion is further denied to the extent that Plaintiff
seeks to resurrect the subpoena to HSBC Auto Finance, as that subpoena was returned
unexecuted by the United States Marshal because the Marshal “cannot serve a Post Office
Box. [The Marshal] require[s] an actual, physical address to serve an HSBC
representative.” Proof of Service [#539]. The Motion is further granted to the extent that
the Clerk of Court is directed to do as follows:
(1) Mail copies of #528, #633, and this Order to Nonparty Seventh Judicial District
at the address listed in #528.
(2) Mail copies of #529, #633, and this Order to Nonparty KL&N at the address listed

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This ruling does not preclude KL&N and R&M from asserting other arguments on their
own behalf as to why the requested documents should not be produced.

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in #529.
(3) Mail copies of #530, #633, and this Order to Nonparty M&M Connections Bail
Bonds at the address listed in #530.
(4) Mail copies of #531, #633, and this Order to Nonparty Holland, Holland,
Edwards, Grossman P.C. at the address listed in #531.
(5) Mail copies of #532, #633, and this Order to Nonparty University of Colorado,
Denver, at the addressed listed in #532.
(6) Mail copies of #533, #633, and this Order to Nonparty R&M at the address listed
in #533.
(7) Mail copies of #534, #633, and this Order to Nonparty Local 55 Carpenter’s
Union at the address listed in #534.
(8) Mail copies of #535, #633, and this Order to Nonparty Internal Revenue Service
at the address listed in #535.
(9) Mail copies of #538, #633, and this Order to Nonparty Bakers Concrete
Construction, Inc. at the address listed in #538.
(10) Mail copies of #540, #633, and this Order to Nonparty Sun Trust Mortgage at
the address listed in #540.
(11) Mail copies of #536, #633, and this Order to Nonparty Sprint
Telecommunications at the address listed in #536.
The Court reiterates that the subpoenas listed above were previously served by the
United States Marshal in 2013 and that this mailing is merely to inform these nonparties
that the stay in this matter has been lifted and they must therefore respond to the
subpoenas. This mailing does not constitute re-service of the subpoenas, as re-service is

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not necessary.
IT IS FURTHER ORDERED that, to the extent they have not already responded
to the subpoenas prior to the implementation of the stay in this matter, the
nonparties listed above shall respond to the subpoenas on or before May 28, 2015,
either by producing the requested documents, objecting to production or filing
motions to quash in the above-captioned lawsuit. If a nonparty responded to the
subpoena prior to implementation of the stay, the nonparty need take no further action.

Dated: April 28, 2015

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