Hynes v. Petkoff et al

Filing 75

ORDER Granting in part and holding remainder in abeyance 54 Defendants' Motion for Protective Order, as set forth in the order. By Magistrate Judge Michael J. Watanabe on 4/8/2016.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00758-WYD-MJW
CORY HYNES and
KYLER LIVINGSTON,
Plaintiffs,
v.
KIEL PETKOFF,
SHANE MUSGRAVE,
JOHN DOES 1-10, and
CITY OF STEAMBOAT SPRINGS, COLORADO;
Defendants.
ORDER
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the Court on Defendants’ Motion for Protective Order
(Docket No. 54). The motion was referred to the undersigned by District Judge Wiley Y.
Daniel (Docket No. 55). The Court has reviewed the motion, the response (Docket No.
56), and the reply (Docket No. 59). At this time, the Court grants the motion in part and
holds the remainder in abeyance.
Background
This lawsuit involves Fourth Amendment claims of unreasonable seizure and
excessive force against the City of Steamboat Springs and certain police officers
employed by the City of Steamboat Springs. (Docket No. 5 at 1-2.) Plaintiffs bring
municipal liability claims against the City of Steamboat Springs alleging that the city had
customs or policies that led to the constitutional violations. (Id. ¶¶ 140-95.) Plaintiff also
alleges that the city did not sufficiently train its employees regarding the appropriate

amount of force to use. (Id. ¶¶ 170-71.)
As described in the motion, the City of Steamboat Springs hired an independent
investigator, Kathy Nuanes, to conduct an internal investigation in the spring of 2015.
(Docket No. 54 at 2). This investigation was “[p]rompted by media attention given to the
open letter of former Detective David Kleiber, who alleged several incidents of
misconduct by City of Steamboat Springs management and police department
leadership . . . .” (Id.) The investigation resulted in six reports covering various issues.
(Id. at 3.) “Report 1 pertained to the allegations of mismanagement of the Police
Pension Plan” and was released to the public. (Id.) “The remaining five reports involve
personnel issues and, according to the Nuanes Investigation summary, are not to be
shared until authorized by either the City or the subjects of the complaint.” (Id.) A
redacted version of Report 2 was publicly released. (Id.) Plaintiffs have propounded
discovery requests that seek the reports produced by Nuanes and also have included a
topic on their Fed. R. Civ. P. 30(b)(6) deposition notice that relates to the Nuanes
investigation. (Id. at 3-5.) Plaintiff are also seeking to depose Ms. Nuanes.
As a result, in the motion Defendants seek “a protective order with respect to the
reports 3, 5, and 6,1 questioning related to the Nuanes Investigation during the Rule
30(b)(6) deposition, and the deposition of Ms. Nuanes.” (Id. at 5.) Defendants argue
that
[t]he information in the reports, and related deposition questioning is not
relevant to Plaintiffs[’] claims and the production of the investigation is
unduly burdensome. The release of these reports—even under the

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Defendants note that Plaintiffs have agreed that Report 4 is not relevant. (Docket No.

54 at 1.)

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protective order currently entered in this case—would compromise the
privacy interests of the subjects of the investigation and would hinder all
future investigations by deterring officers from providing full and frank
discussion to any future investigator.
(Id.) Defendants request that the Court conduct an in camera review of the documents
related to the Nuanes investigation and determine which, if any, of the documents and
topics should be disclosed. (Id. at 8.) Defendants note that a similar approach was
taken in Weaver v. City of Steamboat Springs, 14-cv-02963-RM-NYW. (Id.) Plaintiff
argues that the letters that led to the Nuanes investigation reference excessive force
and that, therefore, the investigation must have investigated the customs and policies of
the Steamboat Springs police force. (Docket No. 56 at 2-3.) Plaintiffs further argue that
the discovery requests are relevant and not unduly burdensome. (Id. at 6-10.) Plaintiffs
also maintain that the Stipulation and Protective Order (Docket No. 29) entered on July
6, 2015, protects against public dissemination of the requested information. (Docket
No. 56 at 14). With regard to Defendants’ request for an in camera review, Plaintiffs
simply state that their reading of the case cited by Defendants does not require in
camera review when requested by a party. (Id. at 12.)
Analysis
The scope of evidence that is subject to discovery under the federal rules is
broad:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense—including the existence,
description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of
any discoverable matter. For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
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Fed. R. Civ. P. 26(b)(1). The party objecting to discovery must establish that the
requested discovery does not fall under the scope of relevance as defined in Rule
26(b)(1). Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004).
However, in this case, Defendants cannot offer more than general statements about the
scope of the material they seek to withhold from discovery. This is due, in part, to the
nature of the information contained in the documents at issue and the results of the
investigation itself. This is the type of case that lends itself to in camera review. See,
e.g., BPS v. Bd. of Trustees of Colo. Sch. For the Deaf & Blind, No. 12-cv-02664-RMKLM, 2014 WL 3742938, at *2 (D. Colo. July 29, 2014). The Court notes that the case
cited by Defendants in support of their argument for in camera review, Exum v. U.S.
Olympic Comm., 209 F.R.D 201, 206 (D. Colo. 2002) involved, not a protective order
against disclosure to the opposing party, but a protective order to keep the opposing
party from disseminating the documents to third parties. That is a different issue and,
as noted by Plaintiffs, the Stipulation and Protective Order (Docket No. 29) was entered
in this case to allow the parties to designate certain disclosed information as
confidential. However, the Court agrees with Defendants that the approach taken by
Magistrate Judge Wong in Weaver v. City of Steamboat Springs, 14-cv-02963-RMNYW, which involved discovery requests regarding the Nuanes investigation is
appropriate and the Court will conduct an in camera review of the disputed documents
before ruling on the request for a protective order.
Plaintiffs do not respond to Defendants’ statement that Defendants have already
produced Report 1 and a redacted version of Report 2, and that Plaintiffs agree that

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Report 4 is not relevant. (Docket No. 54 at 1, 5.) As a result, the Court will order
Plaintiff to file a Notice on the docket informing the Court whether there is any dispute
as to Reports 1, 2, and 4. The Court will also set a deadline for Defendants to submit
any disputed Reports to the Court for in camera review. If Plaintiffs’ Notice states that
they do not dispute the production of specific Reports, Defendants may omit those
Reports from their submission of documents to the Court.
Conclusion
Based on the foregoing,
It is hereby ORDERED that the portion of the Motion for Protective Order (Docket
No. 54) requesting in camera review of the disputed documents is GRANTED.
It is further ORDERED as follows:
•

On or before April 13, 2016, Plaintiffs shall file a Notice on the docket
informing the Court whether there is any dispute as to the production of
Reports 1, 2, or 4.

•

On or before April 18, 2016, Defendants shall submit any disputed
Reports to the Court in hard copy for in camera review.

The remainder of the Motion for Protective Order is HELD IN ABEYANCE pending the
Court’s review of the parties’ submissions.
Date: April 8, 2016
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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