White v. City and County of Denver et al

Filing 139

ORDER granting 119 Motion for Protective Order. By Magistrate Judge Michael J. Watanabe on 07/10/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01761-CMA-MJW
PHILIP WHITE,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
ROBERT WYCOFF, in his individual and official capacity,
KYLLION CHAFIN, in his individual and official capacity,
KRISTY GARCIA, in her individual and official capacity,
CODE-3 PROTECTION & SECURITY LLC, and
DANIEL BURKE,
Defendants.
ORDER REGARDING
DEFENDANTS CITY AND COUNTY OF DENVER’S MOTION FOR PROTECTIVE
ORDER REGARDING NOTICE TO DEPOSE
DENVER POLICE CHIEF ROBERT C. WHITE (docket no. 119)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant City and County of Denver’s Motion
for Protective Order Regarding Notice to Depose Denver Police Chief Robert C. White
(docket no. 119). The court has reviewed the subject motion (docket no. 119), the
response (docket no. 134), and the reply (docket no. 138). 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:

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1.

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

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 on the subject motion (docket no. 119);

4.

That Plaintiff has brought the following claims in his Second
Amended Complaint (docket no. 61):
a.

42 U.S.C. § 1983 - 4th Amendment Violation - Excessive
Force Against Defendants City and County of Denver,
Chafin, Garcia and Wyckoff;

b.

42 U.S.C. § 1983 Fourth Amendment Violation - False Arrest
/ Unlawful Seizure Against Defendants City and County of
Denver, Chafin, Garcia and Wyckoff;

c.

42 U.S.C. § 1983 - Failure to Train or Supervise, Informal
Custom & Ratification by Final Policymaker Against
Defendants City and County of Denver and Defendant
Wyckoff;

d.

42 U.S.C. § 1985 - Conspiracy to Interfere with Civil Rights
Against All Defendants;

e.

Assault Against Defendants Greyhound Lines, Inc., Code-3,
and Burke;

f.

Battery Against Defendants Greyhound Lines, Inc., Code-3,
and Burke;

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g.

Intentional Infliction of Emotional Distress/Outrageous
Conduct Against Defendants Greyhound Lines, Inc., Code-3,
and Burke;

h.

False Imprisonment Against Defendants Greyhound Lines,
Inc., Code-3, and Burke; and

I.

Negligence Against Defendants Greyhound Lines, Inc., and
Code-3;

5.

That Plaintiff seeks the following relief as outlined in the Second
Amended Complaint (docket no. 61):
a.

Compensatory damages, including but not limited to those
for emotional distress, pain and suffering;

b.

Actual economic damages and consequential damages
arising out of Defendants’ conduct;

c.

Declaratory relief and other appropriate equitable relief;

d.

Punitive damages as allowed by law;

e.

Pre-judgment and post-judgment interest at the highest
lawful rate;

f.
g.
6.

Attorneys fees and costs; and
Such further relief as justice requires.

That Defendant City and County of Denver seeks, in the subject
motion (docket no. 119), a protective order from this court
prohibiting Plaintiff from taking the deposition of Denver Police
Chief Robert C. White concerning Denver Police Department’s

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customs, practices and policies. Defendant City and County of
Denver seeks such the protective order on two grounds. First, that
Chief White is a high-ranking government official who should be
shielded from such a request under the circumstances presented
here. Second, that Magistrate Judge Watanabe has recommended
dismissal of Plaintiff’s claims against Denver (i.e., the claims as to
which the Denver Police Department’s customs, practices and
policies are arguably relevant), so even if this court finds that Chief
White can be deposed, the requested deposition should not take
place until District Judge Arguello determines whether to adopt the
recommendation. See Recommendation on Denver Defendants’
Motion to Dismiss (docket no. 62) and Defendant Greyhound Lines,
Inc.’s Motion to Dismiss Plaintiff’s Second Amended Complaint
(docket no. 69) [docket no. 103]. It should be noted that Objections
(docket no. 109) have been filed Plaintiff as to the
Recommendation (docket no. 103). Moreover, it should be noted
that as of this date of this Order, District Judge Arguello has not
ruled on those Objections (docket no. 109);
7.

That Plaintiff argues that the subject motion (docket no. 119) should
be denied because he has brought a § 1983 claim against the
Defendant City and County of Denver and therefore the deposition
of Chief White is necessary to determine the customs, practices,
and policies of the Denver Police Department from a final

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policymaker. In addition, Plaintiff argues that the Defendants’ Rule
30(b)(6) witnesses of Commander Ron Thomas and Technician
Aaron Brill are not final policymakers. Moreover, Plaintiff argues
that this court has previously denied Defendant’s motion to stay
discovery against the Defendant the City and County of Denver.
Lastly, Plaintiff argues that the subject motion (docket no. 119) is
an effort by Defendant City and County of Denver to “side-step” this
court’s discovery order;
8.

That courts have broad authority to enter protective orders upon a
showing of good cause “to protect a party or a person from
annoyance, embarrassment, oppression, or undue burden or
expense . . . .” Fed. R. Civ. P. 26(c).
Applying the Rule 26(c) standard, the United States Court of
Appeals for the Tenth Circuit affirmed the issuance of a protective
order of a high-level corporate official in the case of Thomas v.
International Business Machines, 48 F.3d 478, 483 (10th Cir.
1995). In that case, the Tenth Circuit relied on the following facts in
upholding the protective order: (1) the deposition imposed “severe
hardship” on the deponent, (2) the reasons for the deposition were
of little relevance to the plaintiff’s lawsuit, (3) the deponent lacked
personal knowledge about the plaintiff, (4) nothing in the record
demonstrated that the defendant failed to make individuals with
knowledge available, and (5) the last-minute nature of the

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deposition. Id. at 483-84.
While there is not a uniform test, this court has articulated that the
plaintiff, to show that the deposition is necessary of a high-ranking
government official, must demonstrate whether (1) the official has
first-hand knowledge related to the claim being litigated; (2) the
testimony will likely lead to the discovery of admissible evidence,
(3) the deposition is essential to the party’s case, and (4) the
information cannot be obtained from an alternative source or via
less burdensome means. Cooke v. Hickenlooper, No. 13-cv01300-MSK-MJW, 2013 WL 579995, at *2 (D. Colo. Oct. 28, 2013);
Feldman v. Bd. of Educ. Sch. Dist. No. 1, No. 09-cv-00104-REBMJW, 2010 WL 383154, at *2 (D. Colo. Jan 28, 2010).
On the other hand, there is case law that states that highly-ranking
executives are not immune from discovery. The fact that an
executive has a busy schedule cannot shield that witness from
being deposed. Six West Retail Acquisition, Inc., v. Sony Theatre
Management Corp., 203 F.R.D. 98, 102 (S.D.N.Y. 2001); and
9.

In this case, it is undisputed that Chief White was not present at the
scene of the events on May 22, 2012 and Plaintiff does not contend
in the Second Amended Complaint (docket no. 61) that Chief White
ratified any decision made by Officer Chafin and/or Sergeant
Wyckoff. Further, there is no indication that Chief White has any
personal knowledge regarding these two officers’ training and no

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indication that Chief White promulgated any practices and/or
policies that could be relevant to the remaining issues in this case,
noting my Recommendation (docket no. 62) dated March 31, 2014.
Lastly, deposing Chief White on the broad topics of arrests,
handcuffing, using force, and dealing with people with disabilities
can be addressed through the Defendant’s Rule 30(b)(6) witnesses
of Commander Ron Thomas and Technician Aaron Brill.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That the Defendant City and County of Denver’s Motion for
Protective Order Regarding Notice to Depose Denver Police Chief
Robert C. White (docket no. 119) is GRANTED. Plaintiff may not
take the deposition of Denver Police Chief Robert C. White; and

2.

That each party pay their own attorney fees and costs for this
motion.
Done this 10th day of July 2014.

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