Picco et al v. Glenn et al

Filing 79

ORDER granting in part and denying in part 70 Plaintiffs' Motion to Compel Brandi Cook, M.A.'s Personnel File from Defendant, Glenwood Medical Associates, as set forth in the Order, by Magistrate Judge Michael J. Watanabe on 12/17/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02858-RM-MJW
GLENN PICCO and
FRANCINE PICCO,
Plaintiff(s),
v.
KELLY R. GLENN, D.O.,
VALLEY VIEW HOSPITAL ASSOCIATION,
BRUCE D. LIPPMAN, II, M.D., and
GLENWOOD MEDICAL ASSOCIATES,
Defendant(s).

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO COMPEL BRANDI COOK, M.A.’S PERSONNEL FILE
FROM DEFENDANT, GLENWOOD MEDICAL ASSOCIATES
(DOCKET NO. 70)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiffs’ Motion to Compel Brandi Cook,
M.A.’s Personnel File from Defendant, Glenwood Medical Associates (“GMA”) (docket
no. 70). The court has reviewed the subject motion (docket no. 70), the response
(docket no. 73), and the Reply (docket no. 75). In addition, the court has taken judicial
notice of the court’s file and has considered applicable Federal Rules of Civil Procedure
and case law. Lastly, the court has reviewed, in camera, the personnel file from GMA of
Brandi Cook, M.A. (docket nos. 77, 77-1, 77-2, and 77-3), filed under restricted access
level 3 consistent with D.C.COLO.LCivR 7.2. The court now being fully informed makes
the following findings of fact, conclusions of law, and order.

2
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Defendant GMA objects to producing the personnel file of
Brandi Cook, M.A., arguing that it “is neither relevant nor
reasonably likely to lead to discovery of admissible evidence,” and
that such personnel file contains highly private and confidential
personnel information about Brandi Cook, M.A. In support these
arguments, GMA cites Martinelli v. Denver Dist. Ct., 612 P.2d 1083,
1091 (Colo. 1980);

5.

That Plaintiffs have the burden to show the relevance of the
information [i.e., GMA’s personnel file of Brandi Cook, M.A.] and a
compelling need for such information. Plaintiffs must further show
that it is the least intrusive means to obtain that information;

6.

That in balancing those factors as outlined in Corbetta v.
Albertson’s, Inc., 975 P.2d 718, 720-21 (Colo. 1999), and the
Martinelli case, supra, I find that Plaintiffs have demonstrated that
portions of the GMA personnel file of Brandi Cook are relevant to
their theory of the case and on disputed issues of the competency

3
of GMA’s care of Plaintiff Glenn Picco, development and
implementation of policies, procedures, job descriptions, and
supervision and hiring of qualified medical assistants. In addition,
Plaintiffs have further demonstrated a compelling need for such
portions of the subject personnel file and that Ms. Cook’s right to
privacy is outweighed by the need for such information. Lastly, I
find that the least intrusive means of obtaining this information can
be accomplished by this court redacting the subject personnel file
and providing only those portions of the subject personnel file that
are relevant to the Plaintiffs’ theory of the case and on disputed
issues in this case as cited in more detail above; and
7.

That the following pages from the subject personnel file are
relevant and discoverable. They are docket no. 77, pages 3, 4, 5,
and 6 and docket no. 77-1, pages 1, 2, 3, 4, and 5. The remainder
of the pages from the subject personnel file are not discoverable
and are not relevant.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiffs’ Motion to Compel Brandi Cook, M.A.’s Personnel
File from Defendant, Glenwood Medical Associates (docket no. 70)
is GRANTED IN PART AND DENIED IN PART as detailed below;

4
2.

That on or before January 2, 2014, GMA shall provide to Plaintiffs
the following pages: docket no. 77, pages 3, 4, 5, and 6 and docket
no. 77-1, pages 1, 2, 3, 4, and 5 from the GMA personnel file of
Brandi Cook, M.A. Plaintiffs may use pages docket no. 77, pages
3, 4, 5, and 6 and docket no. 77-1, pages 1, 2, 3, 4, and 5 from the
GMA personnel file of Brandi Cook, M.A., for the limited purpose of
this case only and for no other purpose. The remainder of the
pages from the subject personnel file are not relevant and are not
discoverable; and

3.

That each party shall pay their own attorney fees and costs for this
motion since I find under Fed. R. Civ. P. 37(a)(5)(A)(ii)(iii) that it
would be unjust under these circumstances to award expenses.

Done this 17th day of December 2013.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE