Meeker v. Life Care Centers of America, Inc. et al

Filing 204

ORDER On Discovery Motions,by Magistrate Judge Nina Y. Wang on 12/4/15, granting in part and denying in part 167 Motion for Protective Order; granting in part and denying in part 192 Motion to Compel; denying 195 Motion for Leave to Restrict. Defendant Life Care Corporation of America will SUPPLEMENT its production, consistent with the direction in this Order. The Clerk of the Court is DIRECTED to UNRESTRICT [#196, #196-1, #196-2, #196-3, #196-4]. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02101-WYD-NYW
MICHELLE MEEKER,
Plaintiff,
v.
LIFE CARE CENTERS OF AMERICA, INC., d/b/a HERITAGE PARK CARE CENTER;
COLORADO MEDICAL INVESTORS, LLC, d/b/a HERITAGE PARK CARE CENTER;
TOWN OF CARBONDALE, COLORADO;
EUGENE SCHILLING, Chief of the Carbondale Police Department, in his official and
individual capacities; and
MICHAEL ZIMMERMAN, Police Officer in the Carbondale Police Department, in his official
and individual capacities,
Defendants.
______________________________________________________________________________
ORDER ON DISCOVERY MOTIONS
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on three related discovery motions filed by the
Parties:
(1)

Defendant Life Care Centers of America, Inc.’s Motion for Protective Order

Pursuant to Fed. R. Civ. P. 26(c) (“Motion for Protective Order”) [#167] filed on October 6,
2015;
(2)

Plaintiff’s Motion to Compel LCCA Defendants’ Discovery Responses Regarding

Financial Information Pursuant to Fed. R. Civ. P. 37(a) (“Motion to Compel Financials”) [#192]
filed on November 16, 2015; and

(3)

The Motion to Designate Depositions of Terry Henry and John Van Veen, Jr. as

Confidential and Motion to Restrict Access to Document 192 and its Exhibits (“Motion to
Restrict”) [#195] filed by the Life Care Defendants on November 17, 2015.
Pursuant to the Order of Reference dated July 29, 2014 [#6], the Reassignment dated
February 10, 2015 [#58], and the Memoranda dated October 6, 2015 and November 16, 2015
[#168, #193], these Motions are before this Magistrate Judge. The court has reviewed the
associated briefing, the applicable case law, and considered the arguments made by counsel
during the informal discovery conferences, and hereby GRANTS IN PART and DENIES IN
PART the Motion for Protective Order; and GRANTS IN PART and DENIES IN PART the
Motion to Compel Financials; and DENIES the Motion to Restrict as follows.
BACKGROUND
The background of this case has been discussed in detail in other court recommendations
and orders [#123, #158], and therefore, will only be discussed here as it pertains to the Motions
pending before the court. Plaintiff Michelle Meeker (“Plaintiff” or “Ms. Meeker”) filed her
Complaint in this matter on July 29, 2014. [#1]. Ms. Meeker was a registered nurse employed
by Defendant Life Care Centers of America, Inc. (“LCCA”),1 who was an unwitting participant
in a hostage drill conducted at her place of employment, Heritage Park Care Center (“Heritage
Park”), during which she believed she was in the midst of an actual active shooter event. [#172
at ¶ 1]. As a result of the October 16 drill, Ms. Meeker alleges that she left her position at
Heritage Park, and that she “suffered and continues to suffer significant damages, including
severe mental and emotional distress.” [Id. at ¶¶ 1, 75-86].

1

The court refers to Defendant Life Care Centers of America, Inc. and Colorado Medical
Investors, LLC (“CMI”) collectively as the “Life Care Defendants.”
2

On the basis of these and other allegations, Plaintiff asserts a number of claims under
federal and state law: claims under 42 U.S.C. § 1983 for unreasonable seizure, excessive force,
and false imprisonment in violation of the Fourth Amendment of the U.S. Constitution against all
Defendants; a § 1983 claim under the Fourteenth Amendment for a violation of procedural due
process against all Defendants; a § 1983 claim under the Fourteenth Amendment for a violation
of substantive due process against all Defendants; a § 1983 claim under the Fourteenth
Amendment for failure to train and/or supervise against Defendant Town of Carbondale
(“Carbondale”) and Defendant Eugene Schilling (“Defendant Schilling” or “Chief Schilling”); a
claim for civil assault against the Life Care Defendants, Defendant Schilling, and Defendant
Michael Zimmerman (“Defendant Zimmerman” or “Officer Zimmerman”); a claim for civil
battery against the Life Care Defendants, Defendant Schilling and Defendant Zimmerman; a
claim for civil false arrest/imprisonment against the Life Care Defendants, Defendant Schilling
and Defendant Zimmerman; a claim for outrageous conduct against the Life Care Defendants,
Defendant Schilling, and Defendant Zimmerman; and willful and wonton breach of contract
against the Life Care Defendants [#172].2
In her Amended Complaint, Plaintiff alleges that the Life Care Defendants “deliberately
intended to cause Ms. Meeker’s injuries, and acted directly to bring about her injuries.” [Id. at ¶
101]. As part of her claim for willful and wonton breach of contract, Ms. Meeker seeks “all
damages allowed by law, including but not limited to exemplary and treble damages, as well as
the maximum increase of such damages for the continued behavior as allowed by law.” [Id. at ¶
243]. To that end, Plaintiff served discovery regarding both the Life Care Defendants’ prior

2

By Order dated May 5, 2015, the court dismissed the state law claims brought against the
individuals—Defendants Baker, Varley, and Holmes—holding that Workers’ Compensation
benefits were the only remedy available to Plaintiff for injuries caused by co-workers or
superiors in the course of employment. [#120].
3

conduct of similar drills, and the financial relationship and condition of Defendants. The court
has conducted repeated informal discovery conferences related to the adequacy of Defendants’
disclosures. [#156, #166, #194].
On October 6, 2015, Defendant LCCA3 filed its Motion for Protective Order, contending
that having to perform a company-wide search of all emails to determine whether responsive
emails related to the disaster drills exist was overly burdensome. [#167 at 3-4]. LCCA further
asserted that the 2013-2015 LCCA Consolidated Financial Statements that were previously
produced constituted the “full financial information” that the court ordered and no further
production was necessary because the excluded information related to Variable Interest Entities
(“VIEs”), whose assets and liabilities, the Life Care Defendants contend, would not be
considered the Life Care Defendants’ assets for the purposes of punitive damages. [#167, #166].
Plaintiff opposed the requested protective order, arguing that it was willing to limit the search for
electronic mail related to the disaster drills to individuals on the safety committee and
management employees of those facilities, that LCCA had failed to establish that producing such
e-mail was overly burdensome, that the financials of the VIEs were not relevant, and that the
court had already ordered the Life Care Defendants to produce such information and LCCA
should not be permitted to re-argue relevance at this juncture. [#173]. LCCA replied, arguing
that the search to discover whether any responsive emails exist itself was unduly burdensome,
that the potential for any relevant information was “marginal,” and that the Life Care Defendants
had already admitted that its facilities perform unannounced emergency disaster drills. [#183 at
5-8]. LCCA further contended that the court already ruled that Plaintiff was not entitled to
discovery on this issue, citing the court’s order dated July 20, 2015. [Id. at 3].

3

While referring to itself as the “Life Care Defendants,” the Motion for Protective Order appears
to be filed only on behalf of Defendant LCCA, not Defendant CMI.
4

On November 16, 2016, Plaintiff moved to compel further disclosure of financial
information, based on the deposition testimony of LCCA’s corporate designees, arguing that the
excluded information about the VIEs was relevant. [#192]. Specifically, Plaintiff contends that
Terry Henry testified that the VIEs account for over $1 billion of LCCA’s total net operating
revenue. [Id. at 3, citing #192-1 at 48:20-53:24, 94:25-96:9.] Ms. Meeker further points to Mr.
Henry’s testimony that the Life Care Defendants’ auditors audit financial statements that include
the VIE income, including that of CMI. [Id. at citing #192-1 at 44:7-10]. Ms. Meeker also seeks
disclosure of financial information of LCCA’s sister corporation, Century Park Incorporated, and
the underlying financial records for “LCCA Corporate.” [Id. at 4]. The Life Care Defendants
resist production, again arguing that the assets of the VIEs are not relevant because “[t]he assets
of the VIEs that are consolidated are not considered general assets of the reporting company, and
the liabilities of the VIEs are not considered general liabilities of the reporting company, except
to the extent of debt the reporting company has guaranteed for the VIE.” [#196 at 2]. The Life
Care Defendants also contend that discovery into the VIEs and LCCA’s sister corporations are
not relevant because they are not defendants, and Plaintiff has failed to establish the elements to
allow for piercing of the corporate veil. [Id. at 2-4]. Plaintiff replied by arguing that the
information about the financial arrangements and the corporate organization between LCCA,
Century Park, CMI, and other VIEs is necessary not only for her demand for punitive damages,
but also to establish the interconnections between the entities “to show the link between LCCA
and these facilities and LCCA’s knowledge of, and control over, those drills.” [#199 at 4].
Finally, the Life Care Defendants seek to restrict Plaintiff’s Motion to Compel Financials
and its exhibits [#195], contending that they designated certain information as Confidential under
the Protective Order, and Plaintiff’s motion and exhibits reflect confidential financial

5

information that should be protected from public disclosure. Plaintiff has not filed a response to
the Motion to Restrict, but the Rule 7.1 Statement of Conferral included in the Life Care
Defendants’ Motion indicates she opposes the relief sought [#195 at 2], as does the Notice of
Restricted Filing. [#202]. The court considers each of these Motions in turn.
ANALYSIS
I.

Standard of Review
A.

Discovery

In considering whether information is subject to discovery, the court exercises its
discretion while balancing the interests and burdens of all parties. The Federal Rules provide for
discovery “relevant to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).4 The recent amendment to Rule 26
restores the “proportionality factors to their original place in defining the scope of discovery.”
Id. at advisory committee’s note to 2015 amendment.
Usually, it is the burden of the party seeking further answers to prove that that the
answers of the resisting party are incomplete or otherwise deficient. Bayview Loan Servicing,
LLC v. Boland, 259 F.R.D. 516, 518 (D. Colo. 2009) (citing Daiflon, Inc. v. Allied Chemical
Corp., 534 F.2d 221 (10th Cir.1976) (“appellees had the burden of proving the answer to their

4

Rule 26(b)(1) of the Federal Rules of Civil Procedure was amended, effective December 1,
2015. Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015,
the amendment shall govern all civil cases commenced after December 1, 2015 and “insofar as
just and practicable, all proceedings then pending.”
See http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf.
6

interrogatory was indeed incomplete”)); see also Continental Ins. Co. v. McGraw, 110 F.R.D.
679, 682 (D. Colo. 1986) (the burden of proof lies with the proponent of additional discovery to
prove that the answers before the court are incomplete, inadequate, or false). However, in this
case, the Life Care Defendants do not assert that they have searched and determined they do not
have additional, responsive documents. Rather, the Life Care Defendants contend that even
engaging in such a search with respect to electronic mail would be unduly burdensome.
Generally, a party seeking a protective order bears the burden of establishing good cause, in a
particularized manner rather than by simply asserting generalities. See Cartel Asset Mgm’t v.
Ocwen Financial Corp., No. 01–cv–01644–REB–CBS, 2010 WL 502721, *10 (D. Colo. Feb. 8,
2010). Therefore, to the extent the Life Care Defendants aver that the burden of producing
additional information is excessive, they must produce evidence of the burden involved. Id. The
court then will consider the alleged burden in light of the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues. zvelo, Inc. v. SonicWALL, Inc.,
No. 06-CV-00445-PAB-KLM, 2013 WL 2338352, at *4 (D. Colo. May 29, 2013). However, the
Court is not obligated to “make formal and explicit findings regarding each of the[se] factors.”
Id. (citing In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1194 (10th Cir. 2009)).
B.

Motion to Restrict

With respect to discovery materials filed in proceedings before this court, the Supreme
Court acknowledged a common-law right of access to judicial records in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the recognition that
public monitoring of the courts fosters important values such as respect for the legal system. See
In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). Judges have a responsibility to avoid

7

secrecy in court proceedings because “secret court proceedings are anathema to a free society.”
M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996). There is a presumption that documents
essential to the judicial process are to be available to the public, but access to them may be
restricted when the public's right of access is outweighed by interests which favor nondisclosure.
See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997).
Accordingly, documents filed with this District are presumptively available to the public,
and the burden is on the party seeking restriction to justify such relief. D.C.COLO.LCivR 7.2(a).
A showing of compelling reasons for restriction of public access is necessary, as it is critical that
the public be able to review the factual basis of this court's decisions and evaluate the court’s
rationale so that it may be confident that the court is functioning as a neutral arbiter. Cf. McVeigh,
119 F.3d at 814. A party seeking to restrict access may not simply point to confidentiality
designations with respect to materials produced in discovery and/or state that it “believes” certain
materials are competitively sensitive (without evidentiary support) in an attempt to secure
wholescale sealing of entire legal briefs and accompanying exhibits.

Whether a party has

designated a document “confidential” or even “attorney’s eyes only” is not dispositive, and may
not even be helpful, to the court’s analysis.
Local Rule 7.2(c) is quite clear that a party seeking to restrict access must make a multipart showing. It must: (1) identify the specific document for which restriction is sought; (2)
identify the interest to be protected and the reasons why that interest outweighs the presumption
of public access; (3) identify a clear injury that would result if access is not restricted; and (4)
explain why alternatives to restricted access—such as redaction, summarization, stipulation, or
partial restriction—are not adequate. D.C.COLO.LCivR 7.2(b)(1)–(4). Such showing must be

8

articulated in a specific manner; generalities about injury and the lack of alternatives will not
suffice.
II.

Defendant’s Motion for Protective Order
A.

E-Mails Regarding Other Hostage Drills

As discussed above, LCCA does not argue that information about its conduct or other
hostage-type drills would not be relevant, i.e., reasonably calculated to lead to admissible
evidence.

Rather, it contends that the mere search to determine whether there would be

responsive emails is overly burdensome, and the potential to yield responsive documents is
“marginal.” LCCA further argues that even with the limitation to the safety committee and
management employees at the facilities as offered by Plaintiff, the electronic search for emails
would still be unduly burdensome. [#183 at 6]. Based on these reasons, LCCA declined to even
attempt to perform a search.
This court is troubled by LCCA’s position, and respectfully declines to adopt it. The
Federal Rules of Civil Procedure, and the controlling case law of this Circuit and District, require
that counsel and parties make a reasonable inquiry before responding or objecting to discovery.
Fed. R. Civ. P. 26(g). Objections to discovery must be made with specificity, and the responding
party has the obligation to explain and support its objections. Cartel Asset Mgmt., 2010 WL
502721, at *10. From the record before the court, it appears that the LCCA Defendants failed to
undertake the requisite inquiry before responding or objecting to discovery.
As an initial matter, the LCCA Defendants affirmatively represented that “the only
hostage drill that has ever taken place at any LCCA facility was that occurring at the Carbondale,
Colorado facility on October 16, 2013.” [#173-7 at 3]. That assertion is patently wrong. See
[#173-5, #173-12].

At best, this misstatement reflects a failure on the part of the LCCA

9

Defendants and their counsel to reasonably investigate whether there were other similar drills. In
this same vein, the court fails to see how LCCA can reasonably determine that the potential to
yield responsive documents is “marginal,” when it has failed to undertake any type of search at
all. For instance, even in the face of specific deposition testimony of its employee, Jessica
Varley, that she emailed Robert Baker notes on the hostage drill [#173-9 at 193:12-194:18] and
testimony from Officer Zimmerman that he had email contact with Cathy Ortiz at Heritage Park
[#173-10 at 121:16-17, 122:11-25], it appears that LCCA has simply and unilaterally determined
that it need not undertake any search to determine whether it could find such emails. Indeed, it
does not appear that LCCA even asked the individuals deposed to search for responsive emails
on their respective computers. See [#173-11 at 177:9-24]. This effort does not comport with the
principles of discovery.
LCCA further relies upon the Declaration of Brad Thompson, the Director of Information
Technology, to assert that any search would be overly burdensome.

[#169].

Yet Mr.

Thompson’s testimony regarding how burdensome it would be to search all 7,500 individual
email accounts residing on 1 of 20 different Exchange mail store databases is inapposite.
Plaintiff has limited her request to members of the safety committee; specific LCCA employees
have been identified as exchanging emails about the drill; and LCCA has produced information
that reflects the type of drill, the facility, and the date of such drill in this action [#173-5]. Mr.
Thompson does not address what specific burden LCCA would suffer by undertaking this more
limited search, or even a more limited search related to the drills that appear to be undeniably
similar by description to the one endured by Ms. Meeker, i.e., “hostage situation,” “hostage,”
“active shooter hostage taking,” “hostage taking – person came in with weapon,” “hostage/active
shooter,” “hostage taking person with a weapon or armed robbery,” “code gray – intruder in the

10

building with weapon,” “man with gun hostage situation.” See [#173-5 at 1, 2, 5, 6]. Instead,
LCCA relies on attorney argument to contend that any search would still be too burdensome.
[#183 at 6]. But in doing so, LCCA offers the court no concrete facts about efforts or results,
instead relying upon statements like “any one email address could contain emails on several
different databases, thus requiring a search of multiple databases,” and “each individual
component search could take over an hour to complete and there is approximately 2 hours of
administrative work and data processing per search request.” [Id. (emphasis added)]. These
speculative statements are simply insufficient to carry LCCA’s burden or to persuade this court
that there is an actual, identifiable burden that can be weighed against the needs of the case, the
amount in controversy, the parties' resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues.
Finally, the court addresses LCCA’s suggestion that it already declined to order LCCA to
produce any information regarding drills of a related nature. Contrary to LCCA’s argument, the
court declined to compel the LCCA Defendants to respond to Plaintiff’s Interrogatory No. 5, and
Requests for Production Nos. 5, 8, and 9 because they requested “all drills or safety security
training exercises at any LCCA facility” over a decade, and framed as such, were facially
overbroad and potentially swept in incidents that were not proximate in location, time, or of the
“same type.” [#141 at 9]. The court further declined to reframe these discovery requests on
behalf of Plaintiff. [Id. at 10.] The court, however, made no finding with respect to any
reframed discovery requests. [Id.]
Here, additional discovery has disproven LCCA’s prior representation that Ms. Meeker
has not limited her discovery requests to emails associated with the safety committee and
management officials. This court further limits them to a narrow subset of “other incidents of

11

the same type,” as contemplated by the Advisory Committee Notes to Federal Rule 26(b)(1)
(2000) and (2015 “The 2000 Note offered three examples of information that, suitably focused,
would be relevant to the parties’ claims or defenses. The examples were “other incidents of the
same type, …”)), namely those which involved hostage taking.
Therefore, this court ORDERS as follows:
(1)

LCCA will conduct searches of emails for responsive documents for each of the

members of the safety committee and the three management employees of each facility (as
identified by Plaintiff by name or title), as well as Jessica Varley and Cathy Ortiz, and
specifically for relevant emails about any drill described in [#173-5] as “hostage situation,”
“hostage,” “active shooter hostage taking,” “hostage taking – person came in with weapon,”
“hostage/active shooter,” “hostage taking person with a weapon or armed robbery,” “code gray –
intruder in the building with weapon,” and “man with gun hostage situation,” and produce any
responsive documents no later than December 24, 2015; and
(2)

The court reserves ruling on whether sanctions are appropriate upon the filing of

an appropriate motion by Plaintiff,5 citing to specific discovery produced in response to this
Order; and the LCCA Defendants are specifically advised that failure to comply with this court’s
order or engage in discovery in a good faith manner may lead to sanctions, including but not
limited to default judgment.

5

Local Rule 7.1(d) prohibits a party from seeking relief in a response. D.C.COLO.LCivR
7.1(d). Based on the record before it, the court is disinclined to award sanctions at this juncture
but reserves ruling specifically.
12

B.

Financial Documents

It is undisputed that Plaintiff seeks the financial information of the LCCA Defendants for
purposes of supporting a claim for punitive damages, as confirmed by Plaintiff’s counsel during
the last informal discovery conference. In addition, Plaintiff contends she requires information
about the corporate relationship between LCCA, CMI, Century Park Incorporated, and the
various VIEs in order to understand the control and knowledge exerted by LCCA over such
entities and to avoid any argument by the LCCA Defendants that the wrong corporate entities are
sued. [#199 at 3-5].
The financial condition of the LCCA Defendants is generally discoverable as relevant to
the issue of punitive damages. See Scavetta v. King Soopers, Inc., No. 10-CV-02986-WJMKLM, 2012 WL 3545278, at *3 (D. Colo. Aug. 16, 2012). CMI is undisputably a VIE. Mr.
Henry testified that the net revenue including the VIEs would be about 2.1 or 2.2 billion. [#1921 at 52:18-23]. Publicly available information indicates that “Life Care Centers of America’s”
revenue as of October 2014 was $2.9 billion. Nevertheless, there is no indication that the balance
sheets produced and filed at [#196-1] include any information about CMI, which is a defendant
in this case. Nor does it appear that the Life Care Defendants have produced any documents to
demonstrate what percentage of VIE income is attributable to CMI.
While the LCCA Defendants insist that such revenue cannot be imputed to the named
defendants for purposes of punitive damages [#196 at 1-2, #167 at 7-8], they fail to explain how
the already produced documents account for any revenues associated with CMI. Particularly if
LCCA intends to take the position that the entire $2.9 billion that is reported in the public media
is not attributable to LCCA and CMI in this action, Plaintiff must be able to discover how the
assets are divided between LCCA on one hand and CMI and the other VIEs on the other. In

13

addition, the LCCA Defendants have already created financials that reflect the net operating
income including the VIEs which presumably reflects financial information regarding CMI.
[#192-1 at 46:4-16, 88:16-22].
The court is not persuaded, however, that Ms. Meeker’s demand for punitive damages
warrants discovery of all documents sought, including compensation to Forrest Preston, financial
information related to Century Park Incorporated, and/or additional supporting documentation
such as any/all financial agreements between the entities. As an initial matter, Mr. Preston is not
personally named as a defendant to this litigation, and Ms. Meeker concedes that she is not
attempting to pierce the corporate veil. [#199 at 2]. Plaintiff does not explain how Mr. Preston’s
compensation is relevant to her claim for punitive damages. Nor are Century Park Incorporated
or LCCA Corporate named defendants, and the court does not conclude, on the record before it,
that Plaintiff has established that the financial condition of these separate entities—whether or
not related to or held by Mr. Preston—is relevant to her claim for punitive damages against
LCCA and/or CMI. There is no current defense that the LCCA Defendants are unable to pay if
punitive damages are assessed against them. [#180]. There is no obligation on the part of Ms.
Meeker in presenting the financial condition of the Life Care Defendants for the purposes of
punitive damages to be able to present details of how such Defendants handle their finances. And
despite the LCCA’s conduct through discovery in this matter, this court does not find on the
record before it that the LCCA Defendants are shifting assets away from LCCA, which is a
defendant to this action, to circumvent Ms. Meeker’s punitive damages award. Therefore, to
balance the competing concerns of the Parties in this action, and in order to avoid any possibility
that demands for financial information are sought for unwarranted purposes, this court will not

14

compel such production at this time. Cf. Koch v. Koch Indus., Inc., No. 85-1636-C, 1992 WL
223816, *10 (D. Kan. Aug. 24, 1992).
Accordingly, I find that the consolidated financials including the VIEs are reasonably
calculated to lead to admissible evidence about CMI and its finances and ORDER that
consolidated financials that include the VIEs be produced, no later than December 11, 2015, for
the years of 2013 to the present. In addition, it appears that the earnings associated with LCCA
Corporate should already be reflected in the consolidated financials. See [#192-2 116:21-117:8].
Further production will not be required at this time.6
C.

Organizational Documents

Finally, Ms. Meeker seeks organizational documents because she is “concerned that
Defendants may ambush her at trial by arguing that she has sued the wrong entities.” [#199 at 45]. In their Answer to the Amended Complaint, the LCCA Defendants do assert “The Complaint
may have failed to name an indispensable party.” [#180 at 41]. To avoid any issue in the future
with respect to whether the appropriate entities have been named, this court ORDERS the

6

Plaintiff contends that under Rule 612 of the Federal Rules of Evidence, LCCA should be
compelled to produce LCCA Corporate’s separate financial statements. The court notes that it
appears that Mr. Henry testified that he reviewed the financial statements of LCCA Corporate “a
little bit,” in anticipation of the depositions. [#192-1 at 87:10-17]. Courts considering whether
to require production of documents consulted by deposition witnesses have set forth three
conditions that a party must meet before production of documents used by a witness prior to
testifying: (1) the witness must use the writing to refresh his memory; (2) the witness must use
the writing for the purpose of testifying; and (3) the court must determine that production is
necessary in the interests of justice. See ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135JAR, 2007 WL 4334918, at *4 (D. Kan. Dec. 6, 2007). “In addition, the party seeking such
documents must show that the documents ‘actually influenced the witness' testimony.’” Id. In
reviewing the excerpts of Mr. Henry’s deposition as provided by Plaintiff, this court does not
conclude that Mr. Henry used the LCCA Corporate financial documents for the purpose of
testifying, or such documents influenced Mr. Henry’s testimony. The court further concludes
that based on the record before it, production is not necessary at this time in the interests of
justice, particularly in light of the required production of additional consolidated financials
relating to LCCA and CMI, the two named Defendants in this action.
15

LCCA Defendants to produce organizational charts or other documents sufficient to demonstrate
the ownership and management structure of Heritage Park Care Center, including but not limited
to Heritage Park Operations, LLC., from 2013 to the present, no later than December 11, 2015.
III.

Motion to Restrict
The LCCA Defendants have moved to restrict Plaintiff’s Motion to Compel Financials

[#192] and the associated exhibits.

[#195].

The LCCA Defendants have also filed their

Response to the Motion to Compel Financials and exhibits as Level 1 Restricted. [#196] They
have not filed a motion to restrict, but rather a Notice of Restricted Filing, based on “these
exhibits have been deemed confidential under the Protective Order in this case.” [#197]. Then
in support of her Reply, Ms. Meeker filed [#200] as restricted, and a Notice of Restricted Filing
[#202], stating that she has filed the deposition transcript of Mr. Van Veen as restricted “until
such time as the Court rules upon Defendants’ Motion.” [Id. at 1].
In determining whether to allow restriction of any of these filings or documents, this
court weighs the interests of the public, which are presumptively paramount, against those
advanced by the parties. See JetAway Aviation LLC v. Board of County Comm’rs of County of
Montrose, Colo., 754 F.3d 824, 826 (10th Cir. 2014).

It is unequivocal, under both

D.C.COLO.LCivR. 7.2(c)(2) and the Tenth Circuit’s controlling case law, that a party’s
designation of a document as “confidential” is insufficient to require its restriction from public
access. Id.; Avantgarde Surgical Inc. v. Rocky Mountain Hosp. & Medical Serv., Inc., Civil
Action No. 08-cv-02103-MSK-CBS, 2008 WL 5335777, at *3 (D. Colo. Dec. 18, 2008). In
addition, a party’s generalized assertions that information should be restricted are insufficient.
Rather, the party seeking to restrict records “must articulate a real and substantial interest that

16

justifies depriving the public access to the records that inform our decision-making process.” Id.
(citations omitted).
The Life Care Defendants contend that they “are privately owned companies who are not
required to make their financial records public. Such a disclosure could adversely impact
business dealings and affairs.” [#195 at 5-6]. The court finds such a statement both perfunctory
and speculative, and as such, insufficient to support restriction of any of the documents. Further,
the Life Care Defendants’ statement that “redaction is not practicable” is internally inconsistent
with its statement that the Life Care Defendants identified specific portions of each deposition
they were seeking to identify as confidential, [id. at 4], as well as the court’s own review.
In light of the Life Care Defendants’ failure to carry their burden, the court is under no
obligation to undertake an independent review of the documents to determine whether any of the
now-restricted documents should be maintained as such. Nevertheless, the court has reviewed
Plaintiff’s Motion to Compel Financials and its exhibits [#192], as well as the LCCA
Defendants’ Response and exhibits [#196], and Mr. Van Veen’s deposition [#200]. In doing so,
the court finds there are a number of points worth mentioning. First, as an initial matter, this
court is disinclined to restrict briefing filed by the Parties. As the Tenth Circuit has specifically
underscored, “parties should not routinely or reflexively seek to seal materials upon which they
predicate their arguments for relief…” See Lucero v. Sandia Corp., 495 F. App’x. 903, 913
(10th Cir. 2012). Next, the court notes the overbreadth of the Life Care Defendants’ request to
restrict, given the fact that some of the exhibits are unequivocally publicly available. See e.g.,
[#192-4]. The Life Care Defendants further articulate no basis, and the court is unaware of any,
that would warrant the restriction of communications between opposing counsel that reflect no
confidential information. See e.g., [#192-3].

Furthermore, the Life Care Defendants have

17

requested the court to evaluate certain documents, such as testimony from its corporate
representatives, to support their own positions. “Once a party asks the Court to consider a
document in resolution of an issue, the public has an interest in such document. Absent a
showing of compelling reasons that override the public's interest, documents filed with the Court
should not be sealed from public view.” Advantgarde Surgical, 2008 WL 5335777, at *3. In
reviewing the testimony of the corporate designees, the court finds it difficult to believe some of
the information is even confidential, e.g., for what reasons LCCA uses aircraft. [#196-3 at
101:2-10].

Accordingly, this court DENIES the Life Care Defendants’ Motion to Restrict

[#195].
With respect to the LCCA Defendants’ filing of their Response as a restricted document
on November 18, 2015 [#196], Local Rule 7.2(e) provides that “[i]f a document is filed as a
restricted document without an accompanying motion to restrict, it shall retain a Level 1
restriction for 14 days. If no motion to restrict is filed within such time period, the restriction
shall expire and the document shall be open to public inspection.”

The fourteen days lapsed

yesterday, and no motion to restrict has been filed. Accordingly, the court ORDERS that the
restriction on [#196] be lifted.
As for [#200], the 14 days to file a motion to restrict has yet to lapse. The court expects
that the Parties will account for the controlling case law, and the rulings made in this Order, in
evaluating whether it is appropriate to file a motion to restrict.

18

CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1)

Defendant Life Care Corporation of America, Inc.’s Motion for Protective Order

Pursuant to Fed. R. Civ. P. 26(c) (“Motion for Protective Order”) [#167] is GRANTED IN
PART and DENIED IN PART;
(2)

Plaintiff’s Motion to Compel LCCA Defendants’ Discovery Responses Regarding

Financial Information Pursuant to Fed. R. Civ. P. 37(a) (“Motion to Compel Financials”) [#192]
is GRANTED IN PART and DENIED IN PART;
(3)

Defendant Life Care Corporation of America will SUPPLEMENT its production,

consistent with the direction in this Order;
(4)

The Motion to Designate Depositions of Terry Henry and John Van Veen, Jr. as

Confidential and Motion to Restrict Access to Document 192 and its Exhibits (“Motion to
Restrict”) [#195] is DENIED;
(5)

The Clerk of the Court is DIRECTED to UNRESTRICT [#196, #196-1, #196-2,

#196-3, #196-4].

DATED: December 4, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

19