Stewart et al v. Board of Trustees for Colorado School for Deaf and Blind et al
ORDER granting in part and denying in part 103 Motion to Quash, by Magistrate Judge Kristen L. Mix on 7/29/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02664-RM-KLM
BPS, a Minor and Disabled Person
KATRINA L. STEWART, his Parent and Next Friend, and
JOHN P. STEWART, his Parent and Next Friend,
BOARD OF TRUSTEES FOR COLORADO SCHOOL FOR THE DEAF AND BLIND,
COLORADO SCHOOL FOR THE DEAF AND BLIND,
LOUIS TUTT, Individually and in his Official Capacity as Principal for the Colorado School
for the Deaf and Blind, and
DOES 1-10, who are unknown persons,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the non-party El Paso County Department of
Human Services’s (“EPCDHS”) Motion to Quash Subpoena Duces Tecum [#103]1 (the
“Motion”). On December 4, 2013, Plaintiffs filed a Response [#123] in opposition to the
Motion. On December 11, 2013, EPCDHS filed a Reply [#134]. On January 17, 2014, the
Court held a telephonic discovery hearing on the Motion. The Court has reviewed the
pleadings and is fully advised in the premises. For the reasons set forth below, the Motion
is granted in part and denied in part, as follows.
“[#103]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by te Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this order.
The Court first briefly summarizes the allegations underlying this lawsuit as stated
more fully in the pending Recommendation of United States Magistrate Judge, [#69] at 2-4.
The events giving rise to the present action took place between 2009 and 2012 at the
Colorado School for the Deaf and the Blind (the “School”). Plaintiff BPS is visually
impaired, has severe learning disabilities, and at all times relevant to the present action was
a minor and a student at the School. Plaintiffs Katrina L. Stewart and John P. Stewart are
Plaintiff BPS’s parents and next friends. Defendant Board of Trustees for the School (the
“Board”) is a governmental entity within the Colorado Department of Education. Defendant
Louis Tutt (“Tutt”) was at all times relevant to the present action employed by the Board as
the principal of the School.
Plaintiffs allege that in February 2010, another student, CS, sexually assaulted
Plaintiff BPS while on School premises. On or around May 5, 2011, CS met with a School
employee and confessed that, at various times between 2009 and 2011, he had sexually
assaulted five students while on School grounds. One of the students who CS confessed
to sexually assaulting was Plaintiff BPS. Barbara Meese, the current principal of the
School, reported CS’s confession to the Colorado Department of Human Services
(“CDHS”). CDHS then contacted the Colorado Springs Police Department (“CSPD”).
CSPD’s investigation indicated that Defendant Tutt did not prepare any incident reports or
other documentation concerning CS’s alleged sexual assault of Plaintiff BPS or any other
student at the School. Despite alleged knowledge of multiple incidents of sexual assault
at the School and despite knowledge that students at the School faced a continuing threat
of sexual assault, Defendants failed to report any conduct or risk to Plaintiff BPS’s parents
or to law-enforcement authorities. Additionally, Defendants failed to adopt or implement
policies and procedures to lessen the risk or to protect Plaintiff BPS and other students at
the School from the risk.
On October 31, 2013, Plaintiffs issued a subpoena to EPCDHS. Motion [#103] at
2. The subpoena requests (1) copies of documents regarding incidents of abuse, assault,
inappropriate behavior, or neglect involving CS from 2008 to 2010; (2) copies of documents
regarding any incidents involving abuse, assault, inappropriate behavior, or neglect at the
School within the last ten years; (3) copies of documents regarding any reports by
employees or agents of the School relating to abuse, assault, inappropriate behavior, or
neglect within the last ten years; (4) copies of documents regarding the failure of a teacher,
employee, staff member, or other agent of the School to report incidents of abuse, assault,
inappropriate behavior, or neglect within the last ten years; (5) copies of documents
regarding all communications within the last ten years between EPCDHS and the School
related to abuse, assault, inappropriate behavior, or neglect; (6) copies of documents
regarding all communications within the last ten years between EPCDHS and any federal,
state, or local agency or department relating to abuse, assault, inappropriate behavior, or
neglect; (7) copies of documents regarding the failure of a teacher, employee, staff
member, or other agent of the School to report incidents of abuse, assault, inappropriate
behavior, or neglect within the last ten years. See Exhibit [#103-1].
EPCDHS moves to quash the subpoena on the grounds that the information sought
by Plaintiffs is “protected” and that the subpoena is “overly broad and presents an undue
burden” on the department. Motion [#103] at 2. In the Motion, EPCDHS primarily relies
on Colo. Rev. Stat. §§ 26-1-114 and 19-1-307. In their Response, Plaintiffs assert that
state law privileges do not apply, that the subpoena is proper even under state law, and
that the subpoena does not impose an undue burden. See Response [#123] at 6-11. In
its Reply, EPCDHS reasserts that the requested information is privileged, that compliance
with the subpoena creates an undue burden, and that the requested information “must be
subject to a protective order if disclosed.” See Reply [#134] at 2.
On January 17, 2014, the Court held a telephonic discovery hearing on the Motion.
At the conclusion of that hearing, the Court ordered EPCDHS to provide numbered
documents to the Court for an in camera review. Minute Order [#153]. On February 3,
2014, EPCDHS complied with the order and deposited the requested documents with the
As an initial matter, discovery in this case is governed by the Federal Rules of Civil
Procedure. See Everitt v. Brezzel, 750 F. Supp. 1063, 1065 (D. Colo. 1990) (“Discovery
in the federal courts is governed by federal law as set forth in the Federal Rules of Civil
Procedure, whether federal jurisdiction is based on the existence of a federal question or
on diversity of citizenship.”). Fed. R. Civ. P. 26(b) permits discovery “regarding any matter,
not privileged, that 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 Cnty. 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).
Similarly, for the purposes of this action, the Court is only bound by state statutory
privileges to the extent that these privileges are also permitted as a matter of federal law.
See Pearson v. Miller, 211 F.3d 57, 62 (3d Cir. 2000). However, even when a state
privilege is not permitted as a matter of federal law, the Court should “at least consider
[state statutory] ‘privilege,’ as well as the confidentiality interests otherwise protected” by
them. Id. at 69. In other words, 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) (citations omitted); see also United States
v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976) (“A strong policy of comity between state and
federal sovereignties impels federal courts to recognize state privileges where this can be
accomplished at no substantial cost to federal substantive and procedural policy.”). Thus,
while federal law governs claims of privilege in this case, as a matter of comity, the Court
takes into account the relevant Colorado statutes that EPCDHS relies on in its Motion,
specifically Colo. Rev. Stat. §§ 19-1-307 and 26-1-114.
In Camera Review
The Court notes that Plaintiffs’ pleadings include argument about a much narrower
scope of documents than those sought in the subpoena. The subpoena issued to EPCDHS
on October 31, 2013, is broad in scope and seeks not only documents regarding incidents
of sexual abuse, but also documents regarding incidents of “physical assault, mental or
emotional assaults or attacks, . . . institutional neglect or failure to supervise by teachers,
staff, agents of [the School].” See Subpoena [#103-1] at 2-5. In their Response to the
Motion, however, Plaintiffs describe the information sought in narrower terms.
example, Plaintiffs assert that they “only seek information about incidents of sexual abuse
at [the School] . . . with identifying information redacted.” Response [#123] at 2; see also
id. at 11 (“The purpose of the subpoena is to obtain information about unreported incidents
of sexual abuse at [the School].”); id. at 12 (“The subpoena is reasonable in scope because
it only seeks information about sexual abuse at [the School].”) (emphasis added). As such,
the Court finds that Plaintiffs have voluntarily narrowed the scope of the subpoena.
Accordingly, the Court has conducted the in camera review of the documents submitted
pursuant to this narrower construction of the information sought.
As noted above, EPCDHS deposited a set of documents with the Court on February
3, 2014. The deposit contained a total of 713 numbered documents. Of those 713
numbered documents, the Court orders that the following documents be produced: ## 1–5,
40–44, 47–77, 81–92, 124–138, 145–148, 231–240, 291–300, 303–306, 322–333, 374,
438, 445–454, 464–466, 536–545, 672–679, 690–699, and 707–710.2 The remaining
documents are not relevant, are duplicative of other documents already selected for
production, or contain confidential and/or privileged material, and therefore are not to be
produced to Plaintiffs. Of the documents selected for production, many contain information
that must be redacted.
The Court has highlighted this information and filed these
documents on the docket at a Level 2 restriction so that only EPCDHS can view them.
EPCDHS is ordered to redact the highlighted portions of the documents before producing
them to Plaintiffs.
These page ranges are inclusive.
IT IS HEREBY ORDERED that EPCDHS’s Motion [#103] is GRANTED in part and
DENIED in part, as outlined above. The Motion is denied as to all documents not ordered
to be produced in this Order.
IT IS FURTHER ORDERED that on or before August 8, 2014, EPCDHS shall
produce to Plaintiffs the documents responsive to Plaintiffs’ Subpoena, with redactions, as
Dated: July 29, 2014
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