Traynom et al v. Cinemark, USA, Inc.

Filing 78

ORDER. Defendant has failed to meet its burden of demonstrating good cause to permit the requested sequencing of discovery in this case but has established good cause to separate liability discovery from damages discovery. Accordingly, the Court ORDERS that Defendant's Motion for Protective Order (to Sequence Discovery) (filed May 7, 2013; docket # 51 ) is granted in part and denied in part as set forth herein. By Magistrate Judge Michael E. Hegarty on 06/12/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02514-RBJ-MEH (consolidated for pretrial proceedings)
DENISE TRAYNOM, and
BRANDON K. AXELROD,
Plaintiffs,
v.
CENTURY THEATRES, INC.,
Defendant.
_______________________________________
Civil Action No. 12-cv-02517-RBJ-MEH
JOSHUA R. NOWLAN,
Plaintiff,
v.
CENTURY THEATRES, INC.,
Defendant.
_______________________________________
Civil Action No. 12-cv-02687-RBJ-MEH
DION ROSBOROUGH,
RYAN LUMBA,
TONY BRISCOE,
THERESA HOOVER,
JON BOIK, next friend of Alexander Boik, and
LOUIS DURAN,
Plaintiffs,
v.
CENTURY THEATRES, INC.,
Defendant.
________________________________________

Civil Action No. 12-cv-02704-RBJ-MEH
JERRI JACKSON,
Plaintiff,
v.
CENTURY THEATRES, INC.,
Defendant.
________________________________________
Civil Action No. 12-cv-02705-RBJ-MEH
GREGORY MEDEK, and
RENA MEDEK,
Plaintiffs,
v.
CENTURY THEATRES, INC.,
Defendant.
________________________________________
Civil Action No. 12-cv-02900-RBJ-MEH
IAN SULLIVAN,
Plaintiff,
v.
CENTURY THEATRES, INC.,
Defendant.
_________________________________________
Civil Action No. 13-cv-00045-RBJ-MEH
CHICHI SPRUEL and
DERICK SPRUEL,

2

Plaintiffs,
v.
CENTURY THEATRES, INC.,
Defendant.
___________________________________________
Civil Action No. 13-cv-00046-RBJ-MEH
MUNIRIH F. GRAVELLY,
Plaintiff,
v.
CENTURY THEATRES, INC.,
Defendant.
__________________________________________
Civil Action No. 13-cv-00114-RBJ-MEH
LYNN JOHNSON,
MACHAEL SWEENEY,
MALIK SWEENEY, by and through his parents and next friends of Machael Sweeney and Lynn
Johnson,
MALACHI SWEENEY, and
MACHI SWEENEY,
Plaintiffs,
v.
CENTURY THEATRES, INC.,
Defendant.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before me is Defendant’s Motion for Protective Order (to Sequence Discovery) [filed May
3

7, 2013; docket #51]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. Colo. LCivR 72.1C, the matter
is referred to this Court for disposition [docket #52]. The motion is fully briefed, and I heard oral
argument on June 10, 2013. For the reasons set forth below, I grant in part and deny in part the
motion as follows.
I.

Background
Although the Plaintiffs are represented by different counsel and bring separate actions

against the Defendant, the injuries complained of occurred at the same time and as a result of the
same event. Consequently, the allegations raised in the Plaintiffs’ pleadings are substantially
similar. With the parties’ consent, Judge Jackson consolidated the Plaintiffs’ actions for pre-trial
proceedings.
In the present motion, Defendant seeks a protective order, which essentially modifies the
governing Scheduling Order to permit discovery only on the issue of “foreseeability” for a period
of 70 days. At the end of that period, the Defendant would file a motion for summary judgment on
the issue of “foreseeability” and, if the motion is denied, the parties would proceed to conduct
discovery on all remaining issues in the case.
Plaintiffs oppose the motion arguing that Defendant’s proposal will actually extend the
discovery process, rather than streamline it, will unnecessarily narrow the scope of “foreseeability”
and, thus, limit the opportunities to discover relevant information, and will likely result in discovery
disputes concerning the definition and scope of “foreseeability.” Plaintiffs assert that Defendant has
failed to cite good cause for its request and such request will prejudice the Plaintiffs by improperly
limiting the scope of discovery. See Response, docket #70 at 4 (“Defendant asks this Court to grant
them [sic] essentially the ability to selectively withhold discovery in this action that they [sic] alone
deem ‘relevant’ to a limited definition of foreseeability, using discovery sequencing.”).

4

Defendant replies that, in his Order on the Motions to Dismiss Plaintiffs’ Colorado Premises
Liability Act (CPLA) claims, Judge Jackson defined “foreseeability” as it will apply to the Plaintiffs’
claims; thus, it is not for the Defendant to do so nor will it do so. Thus, Defendant argues, there
should be no dispute as to the scope of Defendant’s “knowledge of the ‘danger’ as defined in the
Order.” Reply, docket #76 at 4-5. Further, Defendant contends that it seeks neither to exclude
evidence as irrelevant nor to prohibit the Plaintiffs from discovering relevant evidence; rather, it
seeks only to conduct discovery on “foreseeability” first for the parties’ and witnesses’ convenience.
Also, Defendant asserts that good cause exists for sequencing in this case since protracted and
expensive discovery would be avoided if Defendant were to prevail on a first motion for summary
judgment. Finally, Defendant claims the Plaintiffs will suffer no prejudice from sequencing since
it will cause no duplicative proceedings and the Plaintiffs have not argued they will have insufficient
time to conduct discovery if the motion for summary judgment is denied.
II.

Legal Standard
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). Such protection is warranted, 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). A party seeking a protective order under Rule 26(c)
cannot sustain the burden of demonstrating good cause merely by relying upon speculation or
conclusory statements. Tolbert–Smith v. Bodman, 253 F.R.D. 2, 4 (D.D.C. 2008). The movant must
show specific facts demonstrating that the challenged discovery will result in a clearly defined and
serious injury to the party seeking protection. Id.; see also Exum v. United States Olympic Comm.,
209 F.R.D. 201, 206 (D. Colo. 2002).
Rule 26(c) confers broad discretion on the trial court to decide when a protective order is

5

appropriate and what degree of protection is required. Seattle Times Co. v. Rhinehart, 467 U.S. 20,
34 (1984) (“The trial court is in the best position to weigh fairly the competing needs and interests
of parties affected by discovery. The unique character of the discovery process requires that the trial
court have substantial latitude to fashion protective orders.”). Rule 26(d) allows the court, “for the
parties’ and witnesses’ convenience and in the interests of justice,” to appropriately sequence
discovery. Fed. R. Civ. P. 26(d)(2)(A).
III.

Analysis
First, it is neither necessary nor appropriate for me to determine the proper scope of

discovery as to the issue of “foreseeability” in this case to resolve the present motion. Rather, my
primary concerns are for efficiency and avoiding delay in this action and, thus, promoting justice.
Defendant has not convinced me that sequencing discovery as requested will promote the just,
speedy and inexpensive adjudication of this case. Rather, if discovery is limited to one issue and
Defendant files a motion for summary judgment on the one issue, the case would be essentially
stayed as to all other issues for the period of limited discovery and adjudication of the motion. I
perceive no good cause in permitting discovery to be “sequenced” as Defendant proposes.
On the other hand, I read Judge Jackson’s Order on the Motions to Dismiss (and, indeed, my
own recommendation on those Motions) as recognizing a serious issue as to foreseeability. I
believed, as does Judge Jackson, that Plaintiffs ought to be given an opportunity to prove their
liability case. I do not believe it just to require Defendant, or the individual Plaintiffs for that matter,
to endure the cost and trauma of delving into the personal medical and psychological histories,
diagnoses and prognoses of the numerous Plaintiffs as part of the liability analysis. This is a very
appropriate situation for sequencing discovery to the extent of handling liability first and damages
second. As part of that process, there should be a period of liability discovery, with relevance

6

defined as broadly as the issues framed in the Complaints, as modified by Judge Jackson’s Order
on the Motions to Dismiss. It is my intent to permit discovery into all aspects of the liability
equation, including Plaintiffs’ assertions concerning Century’s alleged failure to exercise reasonable
care.
I believe that a further status conference is necessary to implement a schedule that endeavors
to preserve Judge Jackson’s trial date. I wish to work cooperatively with the parties to create such
a schedule consistent with counsels’ other obligations. Therefore, the parties shall appear in Court
on Friday, June 14, 2013 at 10:00 o’clock a.m. in Courtroom A501 on the fifth floor of the Alfred
A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado to discuss this matter.
IV.

Conclusion
Defendant has failed to meet its burden of demonstrating good cause to permit the requested

sequencing of discovery in this case but has established good cause to separate liability discovery
from damages discovery. Accordingly, the Court ORDERS that Defendant’s Motion for Protective
Order (to Sequence Discovery) [filed May 7, 2013; docket #51] is granted in part and denied in
part as set forth herein.
Ordered this 12th day of June, 2013, at Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

7