Stewart et al v. Board of Trustees for Colorado School for Deaf and Blind et al
ORDER granting in part and denying in part 107 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 Boulder County Department of
Housing and Human Services’s (“BCDHHS”) Motion to Quash Subpoena to Produce
[#107]1 (the “Motion”). On December 9, 2013, Plaintiffs filed a Response [#130] in
opposition to the Motion. On December 11, 2013, BCDHHS 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 [#107] is granted in part and denied in part, as follows.
“[#107]” 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.
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 November 5, 2013, Plaintiffs issued a subpoena to BCDHHS. Exhibit [#159] at
5. The subpoena requests (1) copies of documents regarding incidents of abuse, assault,
or inappropriate behavior involving CS from 2008 to 2010; (2) copies of documents
regarding any incidents involving abuse, assault, or inappropriate behavior 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, or inappropriate behavior 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, or inappropriate behavior
within the last ten years; (5) copies of documents regarding all communications within the
last ten years between BCDHHS and the School related to abuse, assault, or inappropriate
behavior; (6) copies of documents regarding all communications within the last ten years
between BCDHHS and any federal, state, or local agency or department relating to abuse,
assault, or inappropriate behavior; (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, or inappropriate behavior within the last ten years. See Exhibit [#159] at 5.
BCDHHS moves to quash the subpoena on the grounds that “the records
subpoenaed are protected due to confidentiality detailed in statutes, regulations, and case
law.” Motion [#103] at 1. In the alternative, BCDHHS seeks “an in camera review by the
Court of the Department’s records” so the Court can determine which records should be
released. Id. at 1-2. In the Motion, BCDHHS primarily relies on Colo. Rev. Stat. §§ 26-1114 and 19-1-307. In their Response, Plaintiffs assert that state law privileges do not apply
and that the subpoena is proper under both federal and state law. See Response [#130]
at 6-13. In its Reply, BCDHHS reasserts that the requested information is privileged and
that the information “must be subject to a protective order if disclosed.” See Reply [#138]
On January 17, 2014, the Court held a telephonic discovery hearing on the Motion.
At the conclusion of the hearing, the Court ordered that BCDHHS’s Motion be held in
abeyance, noting that the Court would issue a written order after conducting an in camera
review of the documents provided by BCDHHS.
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 BCDHHS 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 document than those sought in the subpoena. The Subpoena issued to BCDHHS
on November 7, 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 Exhibit [#159-1] at 3-4. In their Response to the Motion,
however, Plaintiffs describe the documents sought in narrower terms. For example,
Plaintiffs assert that “the subpoena provides the only avenue for Plaintiffs to discover
incidents of sexual assault that [the School] knew about or should have known about when
making decisions about admitting CS and monitoring his behavior . . . .” Response [#130]
at 9; see also id. at 10 (“Plaintiffs have no other way to discover other incidents of sexual
assault by CS while CS attended [the School] in light of [the School]’s history of failing to
report or document sexual abuse at the school.”); ("[T]he only way for Plaintiffs to uncover
incidents of sexual abuse at [the School] that the school failed to document or report is
through third-party discovery.”). 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
As noted above, BCDHHS deposited a set of documents with the Court. The
deposit contained a total of 640 numbered documents.
Of those 640 numbered
documents, the Court orders that the following documents be produced: ## 216–226,
239–244, and 472–480.2 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
BCDHHS and the Court can view them. BCDHHS 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 BCDHHS’s Motion [#107] 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, BCDHHS shall
produce to Plaintiffs the documents responsive to Plaintiffs’ subpoena, with redactions, as
Dated: July 29, 2014
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