Walters v. S&F Holdings, LLC et al

Filing 88

ORDER granting 80 City's Motion To Intervene Solely To Move To Quash Subpoena; granting 81 City's Motion To Quash Subpoena. By Judge Robert E. Blackburn on 8/28/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02006-REB-MJW
BRIANNA WALTERS,
Plaintiff,
v.
S & F HOLDINGS LLC, dba “WILLOW RIDGE MANOR,” and
GREGORY SARGOWICKI,
Defendants.

ORDER QUASHING SUBPOENA
Blackburn, J.
The matters before me are (1) the City’s Motion To Intervene Solely To Move To
Quash Subpoena [#80]1 filed August 26, 2015; and (2) the City’s Motion To Quash
Subpoena [#81] filed August 26, 2015. The plaintiff filed a response [#82]. I grant the
motions.
On August 25, 2015, the plaintiff served a subpoena on the office of the Mayor of
the City of Denver. The subpoena requires the presence at the trial of this case of an
employee of the City of Denver who works at Red Rocks Park and Amphitheater.
Specifically, the subpoena requires the presence of the “person most knowledgeable about
rattlesnakes and rattlesnake warnings, and custodian of records for the park map and
pamphlet.” Motion To Quash, Exhibit A [#81-1]. The subpoena requires testimony

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“[#80]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

“regarding rattlesnakes in the area and warnings given about rattlesnakes on the signs”
and testimony to authenticate a park map and pamphlets given out by the park. Id.
In its motion to quash, the city contends the subpoena should be quashed because
it is unduly burdensome. This is true, the city asserts, because the testimony and
documents sought are not relevant to the issues in this case. In addition, the city contends
some of the testimony sought constitutes expert testimony under Fed. R. Evid. 702. No
employee of the City of Denver has been disclosed as an expert witness in this case. In
fact, no expert witnesses will be presented in this case. Final Pretrial Order [#68], p. 11.
The city has offered to provide the documents sought in the subpoena with a written
certification of their authenticity.
In her response, the plaintiff, Brianna Walters, says she is not seeking expert
testimony from a city witness. Rather, she says she seeks a fact witness to testify about
two issues: (1) reasonable steps that can be taken and are taken at Red Rocks Park to
warn guests of and protect guests from rattlesnakes; and (2) the frequency of rattlesnake
sightings at Red Rocks Park. Response [#82], p. 1. Ms. Walters cites evidence that the
terrain at the site where she was bitten by a rattlesnake is similar to the terrain at Red
Rocks Park. She contends that evidence of “what Red Rocks Park and Amphitheater
does will show the appropriate and reasonable steps that can be and are taken to warn
and protect guests from rattlesnakes in the area.” Id., p. 2. Ms. Walters claims the
defendants knew or should have known of the danger of rattlesnakes on their property and
unreasonably failed to warn or protect Ms. Walters from that danger.
Given these circumstances, I find and conclude that the subpoena is unduly
burdensome and improperly seeks disclosure of the opinion of an unretained expert, in
violation of Fed. R. Civ. P. 45(d)(3)(A)(iv) and 45(d)(3)(B)(ii). First, much of the testimony
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addressed in the subpoena constitutes expert testimony. Testimony which identifies
particular snakes observed at Red Rocks as rattlesnakes, as opposed to another species
of snake, necessarily is testimony based on specialized knowledge. Such snake
identification is beyond common or ordinary knowledge and experience. By definition,
testimony based on specialized knowledge – knowledge beyond common or ordinary
knowledge and experience – constitutes expert testimony. Fed. R. Evid. 701, 702.
Similarly, testimony which describes appropriate and reasonable steps which can be taken
to protect against rattlesnakes necessarily involves specialized knowledge about
rattlesnakes and protective techniques that are effective, as opposed to ineffective, with
regard to rattlesnakes. To this extent, the subpoena seeks to compel the testimony of an
unretained expert, in violation of Fed. R. Civ. P. 45(d)(3)(B)(ii).
Second, the relevance of the testimony and documents sought in the subpoena is
dubious at best. The testimony of any Red Rocks witness would be limited to fact
testimony by a lay witness. In this case, the relevance of such lay testimony is extremely
attenuated. Evidence is relevant if it has any tendency to make a fact more or less
probable and “the fact is of consequence” in the case in question. Fed. R. Evid. 401. Ms.
Walters identifies two facts which she says are of consequence in this action and are
made more or less probable by the evidence in question. Those facts are the purportedly
appropriate and reasonable steps that can be taken to warn of rattlesnakes and
appropriate and reasonable measures that can be taken to protect against rattlesnakes.
Response [#82], p. 2. The plaintiff does not cite any particular warnings or protective
measures used at Red Rocks.
The effectiveness of particular warnings often is within the bounds of common
knowledge and experience. However, the warnings or absence of warnings at issue in this
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case readily can be evaluated by a lay jury without the purported aid of a witness testifying
about warnings used at a different location with different circumstances. Notably, Ms.
Walters cites no particular warnings used at Red Rocks in an effort to demonstrate the
relevance of this evidence. Expert testimony about the effectiveness of protective
measures conceivably could be relevant, but no such testimony is available in this case.
Lay testimony about protective measures purportedly used at Red Rocks, without an
assessment of their effectiveness, would do little if anything to inform the jury about
reasonable, available, and effective protective measures.
To the extent any of this evidence may have some tenuous relevance and probative
value, I find and conclude that any probative value is substantially outweighed by the
dangers of undue delay and waste of time. Fed. R. Evid. 403; see also Fed. R. Evid.
611(a)(2). At most, a lay witness who is employed at Red Rocks could provide only small
bits of lay testimony with only oblique relevance to this case. Presenting such testimony
would needlessly delay the presentation of truly relevant evidence and would waste the
time of the jury, the parties, and the court.
Similarly, Ms. Walters has not shown that the Red Rocks map and pamphlets she
seeks are relevant to this case. She cites no rattlesnake warnings contained in those
documents and nothing about protective measures addressed in those documents. Ms.
Walters has not shown that these documents have any tendency to make a consequential
fact more or less probable.
It is unduly burdensome to require the City of Denver to provide a city employee
who is knowledgeable about operations at Red Rocks to provide (1) testimony that is
inadmissible because it would be expert opinion testimony by an unretained expert; and
(2) of no relevance or only very limited relevance to this case. Similarly, it is unduly
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burdensome to require the City of Denver to provide documents concerning Red Rocks the
relevance of which has not been demonstrated by Ms. Walters. Thus, the motion to quash
must be granted.
THEREFORE, IT IS ORDERED as followed:
1. That the City’s Motion To Intervene Solely To Move To Quash Subpoena
[#80] filed August 26, 2015, is granted;
2. That the City’s Motion To Quash Subpoena [#81] filed August 26, 2015, is
granted;
3. That the subpoena served on the office of the Mayor of the City of Denver,
shown at Exhibit A [#81-1] to the motion to quash [#81], is quashed; and
4. That the City of Denver is relieved of all obligations under the subpoena.
Dated August 28, 2015, at Denver, Colorado.
BY THE COURT:

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