Gordon v. Rice

Filing 45

ORDER TO DETERMINE PRIVILEGE re: 37 Defendant's Unopposed Motion for Discovery In Camera Review. To the extent Defendant's motion seeks an order compelling production of the documents produced to this Court in camera, the motion is granted in part and denied in part as set forth in the attached document. By Magistrate Judge Michael E. Hegarty on 3/7/2014. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00514-RBJ-MEH
DEANNA GORDON,
Plaintiff,
v.
DONALD RICE,
Defendant.

ORDER TO DETERMINE PRIVILEGE

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Unopposed Motion for In Camera Review [filed January 3,
2014; docket #37]. While Judge Jackson granted Defendant’s unopposed request for the Court to
conduct an in camera review of documents withheld by the Plaintiff, the Defendant also requests
an order “that the medical, employment, psychological, radiological, pharmaceutical, insurance and
tax return records regarding Plaintiff Deanna Gordon be produced to Defendant.” Motion, docket
#37 at 10. Plaintiff filed a response on January 27, 2014,opposing Defendant’s request. Docket #43.
On February 10, 2014, Judge Jackson referred the disputed matter to this Court for resolution
[docket #44]. For the reasons that follow, the Court grants in part and denies in part the
Defendant’s request.
I.

Background
Plaintiff initiated this action on January 17, 2013 in Denver County District Court. See

docket #1-3. On February 27, 2013, Defendant removed the action to this Court asserting diversity
jurisdiction. Docket #1. Plaintiff brings claims of negligence and negligence per se against
Defendant, alleging essentially that the Defendant crashed his truck into her vehicle on September

18, 2010, which caused injuries and damages to the Plaintiff. See docket #1-3. Defendant filed an
Answer to the Complaint on February 27, 2013 denying Plaintiff’s allegations. Docket #2.
Judge Jackson held a scheduling conference in this case on May 14, 2013, and discovery
proceeded to the cutoff of January 14, 2014. Meanwhile, on November 26, 2013, Defendant filed
a motion to compel the production of documents withheld by the Plaintiff. See docket #29. Judge
Jackson denied the motion for “procedural reasons,” saying that the Defendant did not comply with
the conferral rules and submitted a motion and attachments that amounted to “overkill.” Minute
Order, December 17, 2013, docket #36 at 1. At the same time, Judge Jackson found that
a plaintiff who brings a personal injury case must produce all medical records related
to treatment of the injuries and any pre-existing similar injuries. The Court will view
her obligation to produce medical information broadly. Also, she generally must
produce employment and financial records that are relevant to her claim for lost
earnings. ... there should be no reluctance to produce medical and financial records,
and the Court will consider sanctions for failure to make reasonable responses to
discovery in that regard.
Id. at 1-2. Judge Jackson further ordered the parties to confer on the disputed discovery and directed
the Defendant to file a renewed motion to compel, if necessary, on or before January 3, 2014. Id.
Rather than filing a motion to compel, Defendant filed the present motion on January 3, 2014
seeking both an order granting its request for the Court to conduct an in camera review of the
Plaintiff’s withheld documents and an order requiring the Plaintiff to produce such documents to the
Defendant. As set forth above, Judge Jackson granted Defendant’s first unopposed request and
referred his second opposed request to this Court for resolution.
Defendant argues that, even if Plaintiff’s documents are otherwise protected work product,
Defendant has a substantial need for the documents and cannot obtain their substantial equivalent
by other means. Further, Defendant contends that, due to the number of injuries and extent of
damages she claims, Plaintiff must produce written releases for the production of her medical,

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employment, psychological, radiological, pharmaceutical, insurance and tax records. Specifically,
Defendant asserts that Plaintiff’s psychological records are relevant to Plaintiff’s claims of
concussion, memory loss, delayed cognitive response and headaches. Further, Defendant claims that
Plaintiff’s employment records are relevant not only to her wage loss claims, but also to her head
injury claims to show how Plaintiff was functioning during her employment with the City and
County of Denver and AMF Bowling. In addition, Defendant requests production of Plaintiff’s
education records from high school to the present, stating they are relevant to Plaintiff’s head injury
claims because they may reflect pre-existing cognitive issues. Defendant also requests Plaintiff’s
eye and ear treatment records arguing that head injuries may cause “double or fuzzy vision,”
“sensitivity to light or noise,” “ringing in the ears,” and “dizziness or seeing stars.”
Furthermore, Defendant seeks copies of missing pages from Plaintiff’s Kaiser Permanente
records, including pages 17-44, 46-47, 50-59, 63-86, and 91-104, plus 1-98 of a different Kaiser
document. Defendant also argues that Plaintiff lists “unrelated medications” in her privilege log,
but fails to mention what conditions or body parts the medications were used to treat and, thus,
Defendant cannot determine whether the information is privileged. In addition, Defendant seeks the
production of all radiological images of body parts Plaintiff claims were injured in the subject
accident; the identities of all of Plaintiff’s primary care physicians and their records; updated
medical and billing records from Dr. Miller of Rehabilitation Services from March 23, 2011 to the
present; Plaintiff’s physical therapy records as referenced in a July 15, 2013 Kaiser record; copies
of all work releases including those from 2013; the written histories from all physicals and well
woman exams; and all records regarding Plaintiff’s left hip pain, which can manifest as pain in the
lower back. Additionally, Defendant seeks an order requiring Plaintiff to sign releases for or
produce her tax returns from 2005 to 2012. Finally, Defendant asks that the Court order Plaintiff

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to sign a release for her insurance records, since Plaintiff has acted “improperly” as a gatekeeper of
her medical records.
Plaintiff responds asserting that, as a result of the subject accident, she suffered injuries to
her left shoulder, right arm, right hip, right thigh and right knee, as well as a concussion, which has
led to petit mal seizures, memory loss, delayed cognitive response, loss of balance and coordination,
vertigo and headaches.

Plaintiff argues that she has produced all medical, psychological,

radiological, pharmaceutical, employment, insurance and wage records in her custody and control
spanning the last ten years relevant to this case. Plaintiff claims that, for those documents withheld,
she has rightfully asserted privileges and has produced a proper privilege log to Defendant.
Although provided the opportunity to do so (see D.C. Colo. LCivR 7.1(c)), Defendant filed
no reply brief in support of its motion. The Court has reviewed the motion, the response and all
documents submitted for in camera review and is now sufficiently advised.
II.

Legal Standards
Rule 26(b)(5) of the Federal Rules of Civil Procedure governs the withholding and

production of privileged materials in a federal lawsuit. As pertinent here, Rule 26(b)(5) states:
(A) Information Withheld. When a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection
as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim
of privilege or of protection as trial-preparation material, the party making the claim
may notify any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the
court under seal for a determination of the claim. The producing party must preserve
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the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5).
In diversity jurisdiction cases such as this one, state law controls the issues of privilege raised
by the parties. See Fed. R. Evid. 501; see also Trammel v. United States, 445 U.S. 40, 47 n.8 (1980).
III.

Discussion
Based upon the applicable rules and case law, the Court will analyze first whether the

withheld documents are protected from disclosure by each claimed privilege. If the documents are
protected, the Court will proceed to determine whether the documents should be produced
nonetheless.
A.

Are Plaintiff’s Medical Records Protected by the Physician-Patient Privilege?

In the present case, Plaintiff has withheld a number of her medical records on the basis of
the physician-patient privilege. “Colorado’s physician-patient privilege prevents a physician,
surgeon, or registered nurse from being examined as a witness as to any information acquired in and
necessary to treating a patient without the consent of the patient.” Cardenas v. Jerath, 180 P.3d 415,
423 (Colo. 2008) (citing Colo. Rev. Stat. § 13–90–107(1)(d) (2007)).
The statute mandates:
[A] physician, surgeon, or registered professional nurse duly authorized to practice
his [or her] profession pursuant to the laws of this state or any other state shall not
be examined without the consent of his [or her] patient as to any information
acquired in attending the patient which was necessary to enable him to prescribe or
act for the patient.
Id. at 423-24. “This privilege applies equally to pretrial discovery as it does to in-court testimony.”
Id. at 424 (citing Weil v. Dillon Cos., Inc., 109 P.3d 127, 129 (Colo. 2005)). “Thus, the
physician-patient privilege protects certain information from discovery even if the information is
relevant to the subject matter of the case and would be discoverable otherwise.” Id. (citing Alcon

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v. Spicer, 113 P.3d 735, 738 (Colo. 2005)).
The Defendant does not appear to dispute that the medical records (or information contained
therein) are facially protected by the physician-patient privilege in this case. Rather, he argues that
the information is or may be related to claims in the case. Specifically, Defendant asserts that
Plaintiff’s psychological records are relevant to Plaintiff’s claims of concussion, memory loss,
delayed cognitive response and headaches. Defendant also requests Plaintiff’s eye and ear treatment
records arguing that head injuries may cause “double or fuzzy vision,” “sensitivity to light or noise,”
“ringing in the ears,” and “dizziness or seeing stars.”
In addition, Defendant seeks the production of all radiological images of body parts Plaintiff
claims were injured in the subject accident; the identities of all of Plaintiff’s primary care physicians
and their records; updated medical and billing records from Dr. Miller of Rehabilitation Services
from March 23, 2011 to the present; Plaintiff’s physical therapy records as referenced in a July 15,
2013 Kaiser record; copies of all work releases including those from 2013; the written histories from
all physicals and well woman exams; and all records regarding Plaintiff’s left hip pain, which can
manifest as pain in the lower back.
B.

Has the Physician-Patient Privilege Been Waived?

“The physician-patient privilege is designed to protect the patient, and the patient may waive
such protections, thereby consenting to disclosure. Cardenas, 180 P.3d at 424 (citing Alcon, 113
P.3d at 739). “One way a party waives the physician-patient privilege is by injecting his or her
‘physical or mental condition into the case as the basis of a claim or an affirmative defense.’” Id.
(quoting Clark v. Dist. Ct., 668 P.2d 3, 10 (Colo. 1983)). “This waiver does not amount to a general
disclosure of the patient’s entire medical history, but rather is limited to the cause and extent of the
injuries and damages claimed. Id. (citing Alcon, 113 P.3d at 740) (noting that where records sought

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are unrelated to treatment of mental or physical issues arising out of the injuries claimed, the
privilege is not waived and the records were not ordered disclosed). Accordingly, “‘relevance alone
cannot be the test’ for waiver of the physician-patient privilege.” Alcon, 113 P.3d at 741 (quoting
Weil, 109 P.3d at 131).
Here, Plaintiff asserts that, as a result of the accident, she suffered injuries to her left
shoulder, right arm, right hip, right thigh and right knee, as well as a concussion, which has led to
petit mal seizures, memory loss, delayed cognitive response, loss of balance and coordination,
vertigo and headaches. In addition to economic damages, Plaintiff seeks “non-economic damages
including, but not limited to, pain and suffering, inconvenience, emotional distress, loss of
enjoyment of life and impairment of quality of life.” Complaint, ¶ 13, docket #6. Importantly, the
Colorado Supreme Court has held that a plaintiff did not waive the physician-patient privilege by
merely seeking damages for mental anguish and emotional distress:
Johnson is a tort plaintiff who asserts, like many others in her position, generic
claims for damages for mental suffering incident to her physical injuries. As it
happens, Johnson has sought counseling for some unrelated emotional issues at
various times in her life. Johnson has not made any independent tort claims for either
intentional or negligent infliction of emotional distress, in which the question of
liability would turn on her mental condition and the cause of it. She did not seek
counseling for any emotional issues related to the accident. She does not seek
compensation for the expenses incurred in obtaining either psychiatric counseling or
marriage counseling. And finally, she does not plan to call any expert witnesses to
testify about her mental suffering. Under these circumstances, we hold that bare
allegations of mental anguish, emotional distress, pain and suffering, and loss of
enjoyment of life are insufficient to inject a plaintiff’s mental condition into a case
as the basis for a claim where the mental suffering alleged is incident to the
plaintiff’s physical injuries and does not exceed the suffering and loss an ordinary
person would likely experience in similar circumstances. Here, the mental suffering
for which Johnson claims damages is incident to her physical injuries and does not
exceed the suffering and loss an ordinary person would likely experience in similar
circumstances. Thus, the trial court may not find an implied waiver of Johnson’s
physician-patient or psychotherapist-client privileges based on the fact that she has
made these claims for mental suffering damages.
Johnson v. Trujillo, 977 P.2d 152, 157 (Colo. 1999) (emphasis added).
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As set forth above, the Plaintiff has provided, for this Court’s in camera review, copies of
her redacted and original medical records, including those that have been withheld. After a thorough
review of these records, the Court concludes that the majority of them are protected by the
physician-patient privilege and are unrelated to treatment of mental or physical issues arising out
of the injuries claimed in this case. Therefore, the Court will deny Defendant’s request for an order
requiring disclosure of these unrelated records.
However, the Court finds in Plaintiff’s Amended Second Privilege Log that two pages relate
to Plaintiff’s alleged brain injury and were (likely) inadvertently withheld from disclosure.
Unfortunately, the Plaintiff did not Bates label any pages produced, so the Court cannot refer to such
pages by page number. The first page that must be produced to the Defendant is dated March 1,
2011 and refers to a call from Nancy Ruff, RN to the Plaintiff regarding an MRI. The second page
is also dated March 1, 2011 and is a letter from Nurse Ruff to the Plaintiff regarding an MRI. The
Court finds that these records relate to an injury claimed in this case and orders the Plaintiff to
produce copies of these records to the Defendant.
Moreover, the Defendant asserts that Plaintiff should produce “all work releases” within the
relevant time period. According to Plaintiff’s Fourth Privilege Log, she has withheld return to work
notes from 2008 and 2009. The Court finds that these notes are not protected by the physicianpatient privilege, as they were prepared specifically by the physician to provide information to a
third party and the information contained therein was not meant to be confidential. See, e.g., Wesp
v. Everson, 33 P.3d 191, 197 (Colo. 2001) (finding, with respect to the attorney-client privilege, that
if a client communication is made to an attorney in the presence of a third party, the communication
ordinarily is not considered confidential). Accordingly, the Plaintiff shall provide copies of the
“Return to Work Treatment Verification” forms dated March 28, 2008, April 18, 2008, July 3, 2008,
March 20, 2009, and December 17, 2009 to the Defendant.
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As for Defendant’s suppositions that (1) Plaintiff’s psychological records are relevant to
Plaintiff’s claims of concussion, memory loss, delayed cognitive response and headaches, and (2)
Plaintiff’s eye and ear treatment records may be related to her alleged head injuries since eye and
ear problems may cause “double or fuzzy vision,” “sensitivity to light or noise,” “ringing in the
ears,” and “dizziness or seeing stars,” the Court finds that the medical records reveal nothing
supporting Defendant’s suppositions and, therefore, the records are not related. Defendant’s request
for these records is denied.
Defendant also expresses a concern that Plaintiff has failed to describe the “unrelated
medications” in the privilege logs. In Alcon, the Supreme Court held that a party asserting the
physician-patient privilege must provide the party seeking the medical records with a privilege log
identifying each of the medical records for which the privilege is claimed. Id. at 742. The party
asserting the privilege must describe each medical record with sufficient detail so that the
applicability of the physician-patient privilege can be assessed by the party seeking the medical
records and, if necessary, by the trial court. Id.
Here, the Court finds that while the Plaintiff failed to describe the “unrelated medications”
with sufficient detail in certain entries on two of the five privilege logs, after review of the records,
the Court concludes that the medications are, indeed, unrelated. That is, in Plaintiff’s first privilege
log, the entries for “unrelated medications” on page 2 relate to gastrointestinal and pulmonary issues
and the entry on page 3 relates to cardiovascular issues. On Plaintiff’s Amended Second Privilege
Log, the entry on page 1 relates to gastrointestinal, cardiovascular and nephrological issues, the
entry on page 5 relates to travel, and the entry on page 6 relates to gastrointestinal, cardiovascular
and respiratory issues. The Court denies Defendant’s request for production of these unrelated
records.
With respect to any other requests for production the Defendant has made here (i.e., copies
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of missing pages from Plaintiff’s Kaiser Permanente records, including pages 17-44, 46-47, 50-59,
63-86, and 91-104, plus 1-98 of a different Kaiser document; all radiological images of body parts
Plaintiff claims were injured in the subject accident; the identities of all of Plaintiff’s primary care
physicians and their records; updated medical and billing records from Dr. Miller of Rehabilitation
Services from March 23, 2011 to the present; Plaintiff’s physical therapy records as referenced in
a July 15, 2013 Kaiser record; the written histories from all physicals and well woman exams; and
all records regarding Plaintiff’s left hip pain), the Court notes that Defendant chose to file the
present motion requesting only that “this Court conduct an in camera review and order that the
records regarding Plaintiff currently being withheld and/or redacted be produced to Defendant (and
that releases for relevant records be provided to Defendant).” Motion, ¶ 2, docket #37. While
Defendant attempts to “incorporate” his previously filed motion to compel “by reference the same
as if fully set forth at length,” Judge Jackson denied that motion because, inter alia, “[a] 29-page
motion to compel in a simple auto accident case, supported by 254 pages of exhibits, is overkill.”
December 17, 2013 Order, docket #36. Most of the records requested above have been found to be
unrelated or are not contained in the documents produced for in camera review (i.e., all radiological
images of body parts Plaintiff claims were injured in the subject accident; the identities of all of
Plaintiff’s primary care physicians and their records; updated medical and billing records from Dr.
Miller of Rehabilitation Services from March 23, 2011 to the present; Plaintiff’s physical therapy
records as referenced in a July 15, 2013 Kaiser record; the written histories from all physicals and
well woman exams) and, thus, without evidence that the records have been already requested by the
Defendant, the Court will not compel production.
However, the Court acknowledges the Defendant’s claim of “omission” of certain pages of
Kaiser medical records and notes again that the Plaintiff failed to Bates label or number any of the
documents she has produced in discovery. Even if not required by the applicable rules, the Court
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finds that such failure causes confusion and disorganization, particularly with the number of records
produced in this case. Moreover, without proper labels, the privilege logs omit references to specific
pages that have been redacted or withheld. Accordingly, in the interest of judicial efficiency and
to abate the confusion and disorganization caused by Plaintiff’s failure to label her documents, the
Court will order the Plaintiff to label (whether by Bates or another suitable method) all documents
produced to the Defendant and revise her privilege logs to include the page numbers of those
documents withheld or redacted.
C.

Are Plaintiff’s Income Records Protected?

For the recovery of her claims against Defendant, Plaintiff seeks “economic damages,
including, but not limited to, medical, rehabilitation and other health care expenses, and loss of
earnings.” Complaint, ¶ 12, docket #6. However, Plaintiff has redacted or withheld certain income
records, including her tax returns, pursuant to the claim of privacy/confidentiality set forth in
Corbetta v. Albertson’s, Inc., 975 P.2d 718, 720-21 (Colo. 1999). Defendant counters that, although
Plaintiff has provided her W-2 forms from the City and County of Denver for the years 2007-2012
and a W-2 form from AMF Bowling for 2006, she has not provided any tax returns nor the W-2
forms from Denver for 2005 and 2006. Defendant claims that the W-2 forms and tax returns are
relevant to Plaintiff’s claim for lost earnings and to her credibility.
It appears that the only income records included in the documents produced in camera and
listed on Plaintiff’s privilege log are the W-2 forms produced to the Defendant with Plaintiff’s social
security number redacted (Defendant has not opposed such redaction). Therefore, again, without
evidence presented here that the Defendant has requested the tax returns and the Plaintiff has
objected, the Court typically would not compel production of such records.1 However, Judge

1

Although the Court is not required to sift through Defendant’s 254 exhibits attached to the
previously filed 29-page motion to compel, the Court found Defendant’s request for eight years of
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Jackson specifically mentions that discovery of income records may be necessary to defend against
Plaintiff’s claim for lost earnings. Accordingly, the Court will determine whether it is necessary to
compel production of Plaintiff’s tax returns and W-2 forms.
The Colorado Supreme Court recently recognized that it has, under different circumstances,
constructed two tests to determine whether documents claimed as confidential should be produced
in discovery. In re Dist. Ct., City & Cnty. of Denver, 256 P.3d 687, 691 (Colo. 2011) (en banc). The
court concluded that one comprehensive test should be applied:
We hold that instead of choosing between the Martinelli and Stone tests, trial courts
should apply a comprehensive framework — incorporating, as appropriate, the
principles from both tests — to all discovery requests implicating the right to
privacy. The party requesting the information must always first prove that the
information requested is relevant to the subject of the action. Next, the party
opposing the discovery request must show that it has a legitimate expectation that the
requested materials or information is confidential and will not be disclosed. If the
trial court determines that there is a legitimate expectation of privacy in the materials
or information, the requesting party must prove either that disclosure is required to
serve a compelling state interest or that there is a compelling need for the
information. If the requesting party is successful in proving one of these two
elements, it must then also show that the information is not available from other
sources. Lastly, if the information is available from other sources, the requesting
party must prove that it is using the least intrusive means to obtain the information.
Id. at 691-92. In re Dist. Ct. involved requests for documents and information concerning an
individual’s compensation over a period of four years. Id. at 689. The court noted “this broad
discovery request likely includes tax returns as well as other financial documents and potentially
confidential information regarding” the defendants and held “based on the broader protection that
we have afforded to financial records in other contexts, these documents fall under the umbrella of
the right to privacy and necessitate analysis under the framework discussed above.” Id. at 692
(citation omitted); see also Stone v. State Farm Mut. Auto Ins. Co., 185 P.3d 150, 158 (Colo. 2008)

tax returns and Plaintiff’s objection as to her right to privacy pursuant to Alcon. See docket #29-3
at 22 (RFP No. 4).
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(“[t]ax returns, by their very nature, would satisfy this initial inquiry [of confidentiality].”).
Accordingly, this Court finds that Defendant’s request for W-2 forms and tax returns seeks private
information necessitating the In re Dist. Ct. analysis.
The Court finds that Plaintiff’s wage information is certainly relevant to her claim for lost
earnings; however, it is not equally clear that Plaintiff’s tax returns, in their entirety, are relevant to
the claim. Even if they were, though, Defendant has not demonstrated a compelling need for the tax
returns. In Stone, the Colorado Supreme Court held that a trial court must find “there is a
compelling need for the [tax] returns because specific information contained in the tax returns is not
otherwise readily obtainable.” Stone, 185 P.3d at 152. Here, Defendant argues only that Plaintiff’s
tax returns “are relevant to Plaintiff’s claim for lost wages and her credibility.” Motion, ¶ 30, docket
#37. This is insufficient under Stone. While the Court acknowledges that tax returns contain annual
earnings information, a W-2 form contains earnings information and Defendant has failed to identify
what other information he needs from Plaintiff’s tax returns to defend this case. Therefore, the
Court will grant Defendant’s request for copies of W-2 forms from the City and County of Denver
for the years 2005 and 2006, but will deny Defendant’s request for production of tax returns.
Furthermore, to the extent they have not been produced, Plaintiff shall provide to Defendant copies
of paystubs showing a reduction in earnings, if any.
D.

Are Plaintiff’s Employment Records Protected?

Plaintiff’s Fourth and Fifth Privilege Logs reveal that she has redacted and/or withheld
documents found in her City and County of Denver employment file pursuant to her “right to
privacy” as set forth in Corbetta. Defendant requests that the Court order production of these
documents arguing they are relevant to Plaintiff’s claim for lost wages and allegations of a head
injury/concussion. Again, the Court will apply the In re Dist. Ct. test to the employment records
here.
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First, the Defendant must demonstrate the requested information is relevant. Defendant
argues that the employment records relate to Plaintiff’s claim for lost wages and to her allegations
of a head injury as it relates to problems with delayed cognitive response and memory loss.
Defendant contends that the records “may reflect how Plaintiff was functioning at her job(s) from
a cognitive and/or emotional perspective which would be relevant to the cause and extent of
Plaintiff’s claimed injuries.” Motion, ¶ 11, docket #37. Essentially, Defendant seeks information
from the employment records that may reveal Plaintiff’s health history, which may be relevant to
the injuries claimed here.
After a thorough review of the documents produced to the Court, keeping in mind
Defendant’s assertions that relevance lies in the lost earnings claim and alleged head injury, the
Court finds first that any records dating before the relevant time period (as established by the
parties), 2005-present, are not related to the claims in this action and will not be ordered produced.
As for records dated within the relevant time period, the Court finds that none of the records
withheld is relevant to the claims and defenses in this action. While the Defendant is correct that
some records refer to prior injuries and illnesses, they are properly explained in the privilege log and
do not relate to the treatment of mental or physical issues arising out of the injuries claimed.
Further, Defendant asserts that “the records may also reveal prior unexplained absences which may
be suggestive of other problems as well as daily work activity, performance and attendance”;
however, Defendant does not explain how any such absences might be relevant to this case other
than to speculate about doctor’s appointments. Nevertheless, the Court finds Plaintiff’s privilege
logs accurately explain any such employment records that have been withheld or redacted.
Furthermore, the Court finds that the records produced for in camera review neither implicate any
of the Defendant’s suggested bases for relevance nor relate to the claims and/or defenses in this
action.
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Even if the Defendant had demonstrated relevance of certain employment records related to
Plaintiff’s income or health, the Court finds the Defendant fails in a further analysis of the In re Dist.
Ct. test. It is Plaintiff’s burden to demonstrate her employment records are confidential. For this
prong, the Colorado Supreme Court has determined:
First, the claimant must show that he or she has “an actual or subjective expectation
that the information . . . not be disclosed,” as, for example, by showing that he or she
divulged the information to the [employer] pursuant to an understanding that it
would be held in confidence or that the [employer] would disclose the information
for stated purposes only.
Second, the claimant must show that the material or information which he or she
seeks to protect against disclosure is “highly personal and sensitive” and that its
disclosure would be offensive and objectionable to a reasonable person of ordinary
sensibilities. The Schellenberg court posits a “descending order of sensitivity and
constitutional interest,” pursuant to which the claimant’s objective expectation of
nondisclosure is to be determined. At the top of this ranking are those materials and
information which reflect the “intimate relationships” of the claimant with other
persons. Below this ranking:
“the progressively lower tiers would include . . . (the claimant’s) beliefs and
self-insights; his personal habits; routine autobiographical material; and
finally, his name, address, marital status, and present employment, which
together may constitute his irreducible identity to anyone who has reason to
acknowledge his existence.”
Depending, of course, on the circumstances of the individual case, it is less likely
that information or materials in the lower tiers of this ranking will come within the
zone of protection of the right to confidentiality.
Martinelli v. Dist. Ct. in and for the City & Cnty. of Denver, 612 P.2d 1083, 1091-92 (Colo. 1980)
(citations omitted). As set forth above, the Court has determined that Plaintiff’s medical and income
records are considered confidential and such determination does not change if the records are found
in a personnel file rather than a medical file.
Third, Defendant must show there is a compelling need for the information and the
information is not available from other sources. Here, Defendant fails to show that he cannot or has
been unable to get the information he seeks from other sources, particularly from the Plaintiff

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herself. For example, Defendant notes that Plaintiff informed Dr. Jane Burnham that her job
performance was the same both before and after the accident and that Plaintiff has observed “many
different types of seizures” at work. Defendant contends that he is entitled to the job performance
reviews to demonstrate whether Plaintiff’s comments were true, and is entitled to know whether
Plaintiff has been educated regarding seizures at work. However, Defendant says nothing about
whether he asked Plaintiff directly about these issues. The same is true with respect to possible preaccident seizures, memory loss and/or other pre-accident conditions that may be relevant to
Plaintiff’s claims.
Therefore, the Court will deny Defendant’s request for the production of the employment
records listed on Plaintiff’s privilege logs and produced to the Court for in camera review.
IV.

Conclusion
Accordingly, for the reasons stated above, it is hereby ORDERED that Defendant’s

Unopposed Motion for In Camera Review [filed January 3, 2014; docket #37], to the extent that
Defendant seeks an order compelling production of the documents produced to this Court in camera,
is granted in part and denied in part as follows:
(1)

The Plaintiff shall label (whether by Bates or another suitable method) all documents
produced to the Defendant and revise her privilege logs to include the page numbers of those
documents withheld or redacted on or before March 24, 2014;

(2)

Defendant’s request for withheld or redacted medical records is granted in that the Plaintiff
shall produce, on or before March 24, 2014, copies of the March 1, 2011 call record and
correspondence concerning an MRI, as well as copies of the return-to- work notes dated
March 28, 2008, April 18, 2008, July 3, 2008, March 20, 2009, and December 17, 2009;
otherwise, Defendant’s request for withheld or redacted medical records is denied;

(3)

Defendant’s request for withheld or redacted income records is granted in that the Plaintiff
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shall produce, on or before March 24, 2014, copies of her 2005 and 2006 W-2 forms from
the City and County of Denver, as well as copies of paystubs demonstrating her loss of
earnings as described in this case, if any; otherwise, Defendant’s request for withheld or
redacted income records is denied; and
(4)

Defendant’s request for withheld or redacted employment records is denied.
Dated at Denver, Colorado, this 7th day of March, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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