McDonald v. School District No. 1 in the County of Denver and State of Colorado et al

Filing 53

ORDER denying 47 Defendant School District No. 1 in the City and County ofDenver's Motion for Protective Order, as set forth in the Order, by Magistrate Judge Michael J. Watanabe on 10/7/2014.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03199-PAB-MJW
JOHN M. McDONALD,
Plaintiff,
v.
SCHOOL DISTRICT NO. 1 IN THE CITY AND COUNTY OF DENVER
AND STATE OF COLORADO, AND
ELDRIDGE GREER
AND
NORMA GIRON, IN THEIR INDIVIDUAL CAPACITIES,
Defendants.

ORDER REGARDING
DEFENDANT SCHOOL DISTRICT NO. 1 IN THE CITY AND COUNTY OF DENVER’S
MOTION FOR PROTECTIVE ORDER (DOCKET NO. 47)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant School District No. 1 in the City and
County of Denver’s Motion for Protective Order (docket no. 47). The court has reviewed
the subject motion (docket no. 47) and the response (docket no. 49). 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
to this dispute;

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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. 47);

4.

That Plaintiff has brought the following claims in his Complaint
(docket no. 1):
a.

Claim One - Title VII - Race and Sex Discrimination Against
Defendant School District No. 1 in the City and County of
Denver [hereinafter “District’];

b.

Claim Two - ADEA - Age Discrimination Against the
Defendant District;

c.

Claim Three - First Amendment Speech Against All
Defendants;

d.

Claim Four - Interference with Contract and/or Prospective
Business Advantage Against Defendants Ferrer, Giron and
Greer; and

e.

Claim Five - Breach of Contract Against the Defendant
District;

5.

That Plaintiff seeks the following relief as outlined in his Complaint
(docket no. 1):
a.

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

b.

Reinstatement to a position of social worker in the District

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with no loss of pay, benefits, placement on the salary
schedule, or seniority;
c.

Actual economic damages and consequential damages
arising out of Defendants’ conduct, including but not limited
to back pay and front pay;

d.

Exemplary/punitive damages on his federal claims;

e.

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

f.
6.

Such further relief as justice requires.

That the District seeks, in the subject motion (docket no. 47), a
protective order from this court prohibiting Plaintiff from taking the
deposition of Shayne Spalten, the District’s Chief Human
Resources Officer, because she is a high-ranking government
official without personal knowledge of the facts of this case and the
information purportedly sought from Ms. Spalten can be obtained
elsewhere;

7.

That Plaintiff argues that the subject motion (docket no. 47) should
be denied because he has brought Claims 1, 2, 3 and 5 as listed
above against the District and therefore the deposition of Shayne
Spalten is necessary to acquire information that includes: (1) the
organizational structure of the District’s Human Resources [“HR” ]
Department; (2) the relationships between various divisions within
the HR Department; (3) the HR Department’s policies and practices

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concerning “ghost writers” and “HR partners,” which policies and
practices are apparently not in written form; (4) how and why “ghost
evaluators” are hired, including who is responsible for making such
hiring decisions and the rationale for such hiring of “ghost
evaluators”; (5) the training for the “ghost evaluators”; (6) who does
the training for the “ghost evaluators”; (7) how Ms. Spalten instructs
the school principals throughout the District to use the “ghost
evaluators” and their written “ghost evaluations”; and (8) whether
the use of “ghost evaluators” and “ghost evaluations” is violation of
Colorado law and the District’s Collective Bargaining Agreement
with Plaintiff’s union and the Denver Classroom Teachers
Association. Plaintiff has indicated in his Response (docket no. 49
at pp. 4-5) that he does not intend to inquire of Ms. Spalten
regarding the particular facts pertaining to Plaintiff’s performance
and termination. Moreover, Plaintiff seeks only a four-hour
deposition of Ms. Spalten (docket no. 49 at p. 6). Lastly, Plaintiff
argues that it appears that Ms. Spalten is the person responsible
for the recruitment, hiring and training of the “ghost writers” and that
only she can testify to these topics numbered 1 through 8,
inclusive, as outlined above;
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

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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
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 5799995, at *2 (D. Colo. Oct. 28,
2013); Feldman v. Bd. of Educ. Sch. Dist. No. 1, No. 09-cv-01049-

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REB-MJW, 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.

That Shayne Spalten has personal knowledge of the listed topics in
paragraph 7 above and such information concerning these topics
cannot be obtained through another discovery method. The
information in such topics sought by Plaintiff cannot be obtained
through another witness noting that Plaintiff has already deposed
Lee Renfrow, Bart Muller and Lisa Negus who do not have the
personal knowledge to address each of these topics. The
deposition of Ms. Spalten is necessary and is likely to lead to the
discovery of admissible evidence. In addition, the deposition of Ms.
Spalten is essential in establishing Plaintiff’s claims as well as
relevant to Plaintiff’s theory of the case. See Complaint (docket no.
1) and paragraph 4 above. Finally, that a four-hour deposition of
Ms. Spalten is not unduly burdensome nor would it create a severe
hardship to Ms. Spalten.

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

That the Defendant School District No. 1 in the City and County of
Denver’s Motion for Protective Order (docket no. 47) is DENIED.
Plaintiff may take the deposition of Shayne Spalten, the District’s
Chief Human Resources Officer, for four hours. The scope of Ms.
Spalten’s deposition shall be limited to those topics numbered 1
through 8, inclusive, outlined in paragraph 7 above.

2.

That each party pay their own attorney fees and costs for this
motion.
Done this 7th day of October 2014.

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