Montoya v. Newman et al

Filing 129

ORDER granting in part and denying in part 125 Motion to Strike by Magistrate Judge Kristen L. Mix on 3/4/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02362-REB-KLM
RAYMOND MONTOYA,
Plaintiff,
v.
BRUCE NEWMAN, in his official capacity as the Sheriff of Huerfano County Jail,
LARRY GARBISO,
DOE #1, 2 - detention center officer at Huerfano County Jail,
DOE #1-2, medical staff member at Huerfano County Jail, and
CHARLES NEECE, M.D.,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on County Defendants’ Motion to Strike [#125]1
(the “Motion”), filed by Defendants Bruce Newman and Larry Garbiso (the “Moving
Defendants”).2 The Court has reviewed the entire case file and the applicable law and is
sufficiently advised in the premises. For the reasons set forth below, the Motion [#125] is
granted in part and denied in part.
I. Procedural Background
This case involves Plaintiff’s allegations that he contracted “a grave illness that

1

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

Plaintiff’s deadline to file a response has not elapsed. However, the Court may rule on
a pending motion at any time. D.C.COLO.LCivR 7.1(d).

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almost killed him” as a result of his incarceration at the Huerfano County Jail, “a facility
known to harbor dangerous disease [sic] that regularly afflicted inmates.” Scheduling Order
[#25] at 3. During the course of discovery, Plaintiff alleged that Defendant Bruce Newman,
Sheriff of Huerfano County, shredded documents relevant to the litigation in an attempt to
avoid disclosure of damaging evidence. The Court set an evidentiary hearing regarding
Plaintiff’’s oral motion for spoliation sanctions (the “Spoliation Motion”) and ordered the
parties to “fully confer in advance of the hearing, including regarding whether testimony will
be presented and, if so, by whom and on what subject(s).” The Court further set a deadline
for submission of documents the parties sought to have considered in conjunction with the
Spoliation Motion. Courtroom Minutes/Minute Order [#86] at 2.
The Court conducted a hearing on the Spoliation Motion on May 13, 2014 [#87] and
June 3, 2014 [#102]. Certain exhibits were admitted into evidence on the latter date. See
generally Courtroom Minutes/Minute Order [#102]. At the conclusion of the second day of
hearing, the Court ordered counsel to submit proposed Findings of Fact and Conclusions
of Law by a specified date. Id. at 4. The parties filed their proposed Findings of Fact and
Conclusions of Law [##112, 113]. On July 7, 2014, the Moving Defendants filed a motion
asking the Court to strike the exhibits to Plaintiff’s proposed Findings of Fact and
Conclusions of Law [#114]. That motion was granted in part and denied in part by the
Court on December 15, 2014. See generally Order [#121] (the “December Order”). In the
Court’s December Order, the Court concluded:
IT IS HEREBY ORDERED that the Motion is GRANTED in part and DENIED
in part, as follows: The request to strike the exhibits is denied. The request
for additional discovery is granted and is limited to no more than five (5) twohour depositions of witnesses to be selected by Defendants and conducted
at Defendants’ expense. Defendants’ counsel shall follow Fed. R. Civ. P. 30
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and 45 in noticing and conducting the depositions. Plaintiff’s counsel shall
cooperate in providing available dates and times for the depositions. The
depositions shall be completed on or before February 6, 2015. Either party
may submit amended proposed Findings of Fact and Conclusions of Law
relating solely to the information generated from the depositions on or before
February 20, 2015. No extensions of time will be permitted absent
extraordinary circumstances.
December Order [#121] at 7-8 (emphasis in original).
In compliance with the December Order, the Moving Defendants filed their Amended
Proposed Findings of Fact and Conclusions of Law [#123] and Plaintiff filed his Supplement
to Proposed Findings of Fact and Conclusions of Law Regarding Defendant’s Spoliation
of Evidence [#124] (“Plaintiff’s Supplement”). The instant Motion asks the Court to strike
Plaintiff’s Supplement because “Plaintiff provided new and, in some cases, previously
undisclosed exhibits with” Plaintiff’s Supplement. Motion [#125] at 2. Specifically, the
Moving Defendants ask the Court to strike Exhibit 36(a) [#124-3], Exhibit 36(b) [#124-4],
Exhibit 36(c) [#124-5], and Exhibit 37 [#124-6] because they “are additional documents
obtained from Mobile Records Shredders and a supplemental discovery response by
County Defendants.” Id.
II. Analysis
As noted above, the December Order allowed the parties to amend their proposed
findings of fact and conclusions of law “relating solely to the information generated from the
depositions.” December Order [#121] at 7-8. Plaintiff’s Supplement states that “the owner
of Mobile Record Shredders, Kellie O’Brien, was present during the deposition” of Robert
Dyleski. Plaintiff’s Supplement [#124] at 5. Plaintiff further states that Ms. O’Brien
“confirmed for all counsel that the summary” of trips made by Mobile Record Shredders

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shown to Mr. Dyleski at his deposition “was a complete record of any and all trips that the
company had made to Walsenberg, at any time during the summer of 2011.” Id. at 5. As
a result, Plaintiff attaches an affidavit signed by Ms. O’Brien [#124-3, identified by Plaintiff
as Exhibit 36(a)] to Plaintiff’s Supplement that attaches two documents: a summary of all
trips made by Mobile Record Shredders to Walsenberg and surrounding areas for the
period May 2, 2011 through August 31, 2011 [#124-4, identified by Plaintiff as Exhibit 36(b)]
and a summary of all trips made by Mobile Record Shredders during the period May 2,
2011 through September 1, 2011 [#124-5, identified by Plaintiff as Exhibit 36(c)]. The last
document challenged by the Moving Defendants is the County Defendants’ and Defendant
Newman’s Fourth Supplemental Answers and Responses to Plaintiff’s First; Second;
Second [Third]; and Fourth Sets of Interrogatories and Requests for the Production of
Documents and Fourth Set of Requests for the Production of Documents Defendants [sic]
[#124-6, identified by Plaintiff as Exhibit 37], which states that it was produced “pursuant
to the Court’s January 2, 2014, Minute Order (Doc. 65).” See Exhibit 37 [#124-6] at 1.
Therefore, the dispute between the parties regarding these documents is whether
each of these documents relates “solely to the information generated from the depositions”
as discussed in the Court’s December Order. December Order [#121] at 7-8. While the
Court did not anticipate that a non-deponent would attend any of the depositions and
provide factual information relating to that deponent’s testimony, it appears that is what
happened at Mr. Dyleski’s deposition. For example, during the deposition Mr. Dyleski was
asked about an exhibit and he responded that he thought the document was produced by

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Ms. O’Brien. See Exhibit 353 [#124-2] at 39:10-17. Further, in response to Mr. Dylseki’s
testimony that Ms. O’Brien was the person knowledgeable about Mobile Record Shredders’
routes and the related documents, Plaintiff’s counsel offered Defendants the opportunity
to depose Ms. O’Brien prior to the deadline set in the Court’s December Order. Id. at
46:15-25. Neither party has presented evidence that Ms. O’ Brien was deposed and
Exhibits 36(a), 36(b), and 36(c), appear to be Plaintiff’s way of addressing information
conveyed to the parties during Mr. Dylseki’s deposition that was not on the record and was
not otherwise recorded at any other deposition taken during the period allowed by the Court
in the December Order. Notably, the Moving Defendants do not refute Plaintiff’s assertions
that Ms. O’Brien is the owner of Mobile Record Shredders, Ms. O’Brien was present during
My. Dyleski’s deposition, and Ms. O’Brien “confirmed for all counsel” the completeness of
the trips summary. Accordingly, the Court concludes that Exhibits 36(a), 36(b), and 36(c)
relate “solely to the information generated from the depositions” held as ordered in the
Court’s December Order. December Order [#121] at 7-8. Therefore, the Motion is denied
to the extent is asks the Court to strike these exhibits.
Exhibit 37, on the other hand, was produced in response to a ruling by the Court
during a January 2, 2014 telephonic discovery hearing. See Exhibit 37 [#124-6] at 1. In
addition, the document at issue was verified on September 5, 2014. Id. at 4. Accordingly,
this document does not relate “solely to the information generated from the depositions”
held after the Court entered the December Order. December Order [#121] at 7-8.
Therefore, the Motion is granted to the extent it asks the Court to strike Exhibit 37 [#124-6].

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Defendants do not move to strike Mr. Dyleski’s deposition transcript. See Motion [#125]

at 2 n.1.

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III. Conclusion
For the reasons discussed above,
IT IS HEREBY ORDERED that the Motion [#125] is GRANTED in part and DENIED
in part.
IT IS FURTHER ORDERED that Plaintiff’s Exhibit 37 [#124-6] is STRICKEN from
Plaintiff’s Supplement and will not be considered by the Court when ruling on the Spoliation
Motion.
Dated: March 4, 2015

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