Arnal v. Aspen View Condominium Association, Inc. et al

Filing 38

ORDER denying 29 Plaintiff's Motion to Compel. Disputed documents 37 that were filed in both redacted and unredacted form for in camera review shall remain under restricted access at Level 2 until further Order of Court. Each party to pay own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 12/3/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01044-WYD-MJW
ALVARO J. ARNAL,
Plaintiff,
v.
ASPEN VIEW CONDOMINIUM ASSOCIATION, INC.,
a Colorado nonprofit corporation, and
ASPEN SNOWMASS CARE, INC. D.B.A. FIRST CHOICE PROPERTIES &
MANAGEMENT, INC., a Colorado corporation,
Defendants.

ORDER REGARDING
PLAINTIFF’S MOTION TO COMPEL (DOCKET NO. 29)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff’s Motion to Compel (docket no. 29).
The court has reviewed the subject motion (docket no. 29), the response (docket no.
34), and the reply (docket no. 35). In addition, the court has reviewed, in camera, the
disputed documents which were filed with this court under restricted access Level 2 per
this court’s minute order dated November 18, 2015 (docket no. 36). See disputed
restricted access documents and Defendant’s privilege log (docket no. 37). Lastly, 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.

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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 lawsuit;

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;

4.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is 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. Information within this
scope of discovery need not be admissible in
evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain

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discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(c);
5.

That “[o]rdinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial by or
for another party or its representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R.
Civ. P. 26(b)(3)(A). However, subject to Rule 26(b)(4), “those
materials may be discovered if: (i) they are otherwise discoverable
under Rule 26(b)(1): and (ii) the party shows that it has substantial
need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other
means.” Fed. R. Civ. P. 26(b)(3)(A);

That “[i]f the court orders discovery of those materials, it must

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protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” Fed. R. Civ. P.
26(b)(3)(B);
6.

That the disputed restricted access documents were submitted to
this court timely both in redacted and unredacted form so that this
court could compare, in camera, what information was provided in a
given disputed document and what information was not provided to
the Plaintiff. This court has now reviewed and compared such
disputed documents in both redacted and unredacted form along
with the Defendant’s privilege log. This court notes that the
Defendant’s privilege log outlines, with specificity, the legal
[evidentiary] basis for each disputed document as to why
Defendant did not turn over such disputed document or portions of
such disputed document; and

7.

That each of the evidentiary objections as outlined in the
Defendant’s privilege log (docket no. 37 - exhibits A and B) are
sustained.
ORDER

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

That Plaintiff’s Motion to Compel (docket no. 29) is DENIED;

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2.

That the disputed documents (docket no. 37) that were filed with
this court in both redacted and unredacted form for in camera
review shall remain under restricted access at Level 2 until further
Order of Court; and

3.

That each party shall pay their own attorney fees and costs for this
motion.
Done this 3rd day of December 2015.

BY THE COURT

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