Carbajal v. Warner et al
Filing
690
ORDER; 661 Motion to Quash Plaintiffs Subpoena to Produce Documents Directed at Sprint Telecommunications is GRANTED. The subpoena isquashed. Nonparty Sprint Telecommunications shall not produce documents in response to Plaintiffs subpoena served on it on June 11, 2013. See Proof of Service 536 , by Magistrate Judge Kristen L. Mix on 7/2/15.(morti, )
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 Non-party Mitchell R. Morrissey’s (“Morrissey”)
Motion to Quash Plaintiff’s Subpoena to Produce Documents Directed at Sprint
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Telecommunications [#661]1 (the “Motion”). Plaintiff filed a Response [#677] in opposition
to the Motion, and Mr. Morrissey, who is acting in his official capacity as District Attorney
for the Second Judicial District, filed a Reply [#685]. The Court has considered the Motion,
the Response, the Reply, the case record, and the applicable law, and is fully advised in
the premises.
The subpoena at issue here is from Plaintiff and is directed to the Custodian of
Records for Sprint Telecommunications. Plaintiff 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
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.
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. 08cv-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); Broadcort Capital Corp. v. Flagler, 149
F.R.D. 626, 628 (D. Colo. 1993). In opposition to this subpoena, Mr. Morrissey asserts the
law enforcement investigative privilege. Motion [#661] at 3. This governmental privilege
1
“[#661]” 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.
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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
privileges “exclusively reserved for the Government”)). Here, Mr. Morrissey is acting in his
official capacity as District Attorney for the Second Judicial District, and thus he may assert
the law enforcement investigative privilege.
The law enforcement investigative privilege is “based primarily on the harm to law
enforcement efforts which might arise from public disclosure of . . . investigatory files.”
Winner, 641 F.2d at 831 (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. at 693 (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).
This privilege covers only “records or information compiled for law enforcement
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purposes. To qualify for this privilege from disclosure the information must satisfy two
conditions: its source must be a government agency, and the agency must demonstrate
how a disclosure would cause one of the harms specified in [5 U.S.C.] § 552(b)(7).” Design
Basics, LLC v. ProBuild Co. LLC, No. 10-cv-02274-REB-BNB, 2011 WL 2600980, at *4 (D.
Colo. June 30, 2011) (quoting Forest Products Nw., Inc. v. United States, 62 Fed. Cl. 109,
113 (Ct. Fed. Cl. 2004); citing Tuite v. Henry, 181 F.R.D. 175, 176-77 (D.D.C. 1998)
(holding that “[t]he federal law enforcement privilege is a qualified privilege designed to
prevent disclosure of information that would be contrary to the public interest in the
effective functioning of law enforcement. The privilege serves to preserve the integrity of
law enforcement techniques and confidential sources, protects witnesses and law
enforcement personnel, safeguards the privacy of individuals under investigation, and
prevents interference with investigations”)). The harms specified in 5 U.S.C. § 552(b)(7)
include interference with enforcement proceedings, deprivation of a right to a fair trial or an
impartial adjudication, unwarranted invasions of personal privacy, disclosure of the identity
of a confidential source or information furnished by a confidential source, disclosure of
techniques and procedures for law enforcement investigations or prosecutions, disclosure
of guidelines for law enforcement investigations or prosecutions or endangering the life or
physical safety of any individual.
In support of his assertion of the law enforcement investigative privilege, Mr.
Morrissey provides the Declaration of Robert Fuller, which provides in relevant part:
I am employed as an investigator for the Office of the District Attorney for the
Second Judicial District (“the Office”). I am currently assigned to the Metro
Gang Task Force, and have worked with the Task Force for twenty years.
Prior to my employment with the Office, I was employed as a Sergeant with
the Adams County Sheriff’s Department. In total, I have more than thirty
years experience as a law enforcement officer in Colorado. This Declaration
is based on my personal knowledge as well as my knowledge of the activities
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and records of the Office.
I have reviewed the Subpoena to Produce Documents to Sprint
Telecommunications from Plaintiff Dean Carbajal requesting the production
of various documents from Sprint Telecommunications. Plaintiff’s Subpoena
to Produce Documents to Sprint Telecommunications specifically requests a
variety of different documents that will necessarily reveal communications
between law enforcement personnel, including law enforcement personnel
with the Office, and Sprint Telecommunications. The Subpoena to Produce
Documents also specifically requests law enforcement investigatory materials
including information about pen registers and warrants.
I was one of the lead investigators involved in the prosecution of Dean
Carbajal. Based on my role, I have extensive personal knowledge of Mr.
Carbajal and his criminal activities as well as the activities of the Office in
investigating and prosecuting Mr. Carbajal. I have reviewed the documents
requested by the Subpoena to Produce Documents to Sprint
Telecommunications against the prosecution and investigatory activities
conducted by the Office as well as coordinated with other law enforcement
agencies and have concluded that the production of such documents to the
Plaintiff would reveal both law enforcement techniques and procedures, but
also the deliberative processes of the Office with respect to both its
prosecutorial and investigation functions.
The Office engaged in a variety of different prosecutions of the Plaintiff over
the course of a number of years culminating in Plaintiff’s conviction as a
habitual criminal and an extremely lengthy sentence to the Colorado
Department of Corrections. Included among the investigations of the Plaintiff
were grand jury proceedings with their attendant secrecy under Colorado law.
Some of the documents requested in the Subpoena to Produce Documents
implicate those grand jury proceedings. It is my considered judgment based
on my review of the documents requested in the Subpoena to produce
Documents to Sprint Communications [sic] and the prosecutorial and
investigation activities of the Office and other law enforcement that production
of these documents to the Plaintiff would be detrimental to law enforcement
and implicates the disclosure of law enforcement techniques and procedures
including the need to safeguard the confidentiality of law enforcement
sources, and the safety and privacy of individuals involved in law enforcement
efforts regarding the Plaintiff. In particular, the nature of some of the
information related to the grand jury proceedings involving the Plaintiff leads
the Office to conclude that disclosure to the wrong parties of information that
was part of the grand jury proceedings, including information implicated by the
Subpoena to Produce Documents to Sprint Telecommunications, will result
in the lives of one or more individuals being placed at risk.
[#661-2] ¶¶ 1-4.
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Plaintiff’s arguments to the contrary notwithstanding, see Response [#677],2 the
Court finds that Plaintiff's subpoena to Sprint Telecommunications seeks information which
is protected by the law-enforcement investigative privilege. See, e.g., Barnes v. United
States, No. 12-cv-282-JED-PJC, 2013 WL 4507596, at *2 (N.D. Okla. Aug. 22, 2013) (citing
Winner, 641 F.2d at 831 (noting the potential harm to law enforcement from public
disclosure of certain types of information); 5 U.S.C. § 552(b)(7)(C)-(D) (concerning public
disclosure of law enforcement investigatory records)). As noted, this privilege applies when
the sought-after records or information were used for law enforcement purposes by a
government agency and when disclosure would cause one or more of the harms discussed
above in 5 U.S.C. § 552(b)(7). See Design Basics, LLC, 2011 WL 2600980, at *4. The
Court finds that the Declaration of Robert Fuller [#661-2] establishes the legal requirements
for enforcement of the privilege. Thus, the Court finds that Mr. Morrissey has met his
burden of demonstrating good cause for the issuance of a protective order.
Accordingly,
IT IS HEREBY ORDERED that the Motion [#661] is GRANTED. The subpoena is
quashed. Nonparty Sprint Telecommunications shall not produce documents in response
to Plaintiff’s subpoena served on it on June 11, 2013. See Proof of Service [#536].
Dated: July 2, 2015
2
To the extent Plaintiff argues that this privilege has been waived by the current litigation,
the Court notes that the privilege cannot be waived by the unilateral actions of Plaintiff in instigating
this lawsuit and seeking discovery in connection with his claims. See, e.g., Dellwood Farms, Inc.
v. Cargill, Inc., 128 F.3d 1122, 1126 (7th Cir. 1997).
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