Bachofer v. Creany et al
Filing
43
ORDER denying 39 Defendants' Motion for Protective Order Pursuant to Fed. R. Civ. P. 26(c)(1) and D.C.COLO.LCivR 30.2, as outlined in the order, by Magistrate Judge Michael J. Watanabe on 5/20/2013.(mjwcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03254-WYD-MJW
BARUCH BACHOFER,
Plaintiff(s),
v.
TIMOTHY CREANY JR. (In his personal and official capacities),
PAULA FRANTZ (in her official capacity),
PHYSICIAN ASSISTANT KLENKE (in his official capacity),
ANGEL MEDINA (in his official capacity), and
TOM CLEMENTS, Executive Director of the Colorado Department of Corrections
(in his official capacity),
Defendant(s).
ORDER REGARDING
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER PURSUANT TO FED. R. CIV.
P. 26(C)(1) AND D.C.COLO.CivR 30.2 (DOCKET NO. 39)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendants’ Motion for Protective Order
Pursuant to Fed. R. Civ. P. 26(c)(1) and D.C.COLO.LCivR 30.2 (docket no. 39). The
court has reviewed the subject motion (docket no. 39) and the response (docket no. 42).
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. The court now being fully
informed makes the following findings of fact, conclusions of law, and order
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.
That I have jurisdiction over the subject matter and over the parties
2
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 Defendants argue that this court should enter a protective
order prohibiting Plaintiff from taking the deposition of Nurse Kathy
Smith because: (1) Nurse Smith is not a party to this lawsuit; (2) no
allegations have been asserted against or about her in the
Complaint [docket no. 1]; (3) Nurse Smith has nothing to do with,
and has no personal knowledge about, any of the claims in the
Complaint or defenses in this case; and (4) the taking of Nurse
Smith’s deposition does not appear to be reasonably calculated to
lead to the discovery of admissible evidence;
5.
That Plaintiff argues that this court should deny the subject motion
(docket no. 39) because: (1) Nurse Smith does not need to be a
party to be deposed; (2) Nurse Smith examined Plaintiff at the
Fremont Correctional Facility Clinic concerning the medical
conditions and injuries claimed by Plaintiff in his Complaint; (3) the
deadline to join parties or amend the pleadings is May 22, 2013,
and Plaintiff very well may seek to add Nurse Smith as a Defendant
because of her actions on March 1, 2013; and (4) Nurse Smith’s
deposition testimony is reasonably calculated to lead to the
discovery of admissible evidence;
3
6.
That Fed. R. Civ. P. 26(b)(1) sets out the scope of discovery as
follows: “Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the
discovery of admissible evidence;” and
7.
That Nurse Smith does not need to be a party in order to take her
deposition. Nurse Smith was involved in the events of March 1,
2013, and deposing her may lead to the discovery of admissible
and relevant evidence concerning the claims and defenses raised
in this lawsuit. For these reasons, the subject motion (docket no.
39) should be denied.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.
That Defendants’ Motion for Protective Order Pursuant to Fed. R.
Civ. P. 26(c)(1) and D.C.COLO.LCivR 30.2 (docket no. 39) is
DENIED; and
2.
That each party shall pay their own attorney fees and costs for this
motion.
Done this 20th day of May 2013.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE
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