Verlo et al v. City and County of Denver et al

Filing 84

MINUTE ORDER granting #69 Motion to Quash and for Protective Order from Subpoenas to Testify at a Deposition in a Civil Action from Non-Parties Mitchell R. Morrissey and S. Lamar Sims. The subpoenas served on Mr. Morrissey and Mr. Sims are quashed. By Magistrate Judge Michael J. Watanabe on 12/17/2015. (emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01775-WJM-MJW
ERIC VERLO,
JANET MATZEN, and
FULLY INFORMED JURY ASSOCIATION,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, COLORADO,
ROBERT C. WHITE, and
CHIEF JUDGE MICHAEL MARTINEZ,
Defendants.

MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the Motion to Quash and for Protective Order from
Subpoenas to Testify at a Deposition in a Civil Action from Non-Parties Mitchell R.
Morrissey and S. Lamar Sims (Docket No. 69) is GRANTED for the following reasons.
No party disputes the applicable legal standards under Fed. R. Civ. P. 26 and
Fed. R. Civ. P. 45, and Movants neither deny that they have relevant evidence nor
argue that the subpoenas are unduly burdensome. Instead, they make three arguments:
(1) that allowing the depositions would violate the Younger abstention doctrine; (2) that
the testimony is protected by a variety of evidentiary privileges; and (3) that the
depositions are inappropriate in light of the “apex” doctrine (though Movants do not use
that term). The Court agrees as to the evidentiary privileges and, in part, as to the apex
doctrine.
Younger Abstention
Movants argue that Plaintiffs’ interests are sufficiently intertwined with those of
state-court criminal defendants Brandt and Iannicelli that allowing Movants to be
deposed would impermissibly interfere with the prosecutions of Brandt and Iannicelli,
such that Younger abstention is appropriate. See Hicks v. Miranda, 422 U.S. 332,
348-49 (1975). Assuming without deciding that Plaintiffs’ interests are indeed
sufficiently intertwined, the Court is nonetheless not persuaded that depositions give
rise to the comity concerns at the core of Younger. Nothing about these depositions

would in anyway limit Movants from pursuing all the options they would otherwise
pursue in the prosecutions of Brandt and Iannicelli. See Joseph A. ex rel. Corrine Wolfe
v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (“The relevant case law supports
abstention where, as here, federal court oversight of state court proceedings is required,
coupled with significant restrictions on the freedom of attorneys to present information to
the court.” (emphasis added)).
A preliminary injunction against further prosecutions has already been entered by
Judge Martinez; surely, if Younger abstention were implicated in this case, it would have
been at that point. Further, the Court fails to see how testifying at a deposition
interferes with Movants’ ability to do their jobs. Movants call the depositions
“fundamentally inappropriate” (Docket No. 69, p.9)––but every person has a duty to
provide their relevant evidence to the court. Compelling Movants to honor this duty
does not impermissibly tread on Colorado’s interests in administering its criminal-justice
system.
Evidentiary Privileges
Movants further argue that any relevant testimony they have is protected by (1)
the attorney-client privilege, (2) the work-product doctrine, and (3) the law-enforcement
privilege (which is a species of deliberative-process privilege).
The attorney-client privilege does not apply, because Movants have identified
neither a client nor communications with that client, to which the privilege might be
applied.
The work-product doctrine and deliberative-process privilege do apply, however.
Plaintiffs argue that the work-product doctrine has no applicability to deposition
testimony, as opposed to documents, but the Tenth Circuit disagrees. Resolution Trust
Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995). It is true that Fed. R. Civ. P.
26(b)(3) does not apply, because on its own terms it applies only to documents and
other tangible things, and to work-product prepared by a party to the instant
litigation––conditions that rule out any application to third-party deponents. But Rule
26(b)(3) is merely a partial codification of the work-product doctrine; the principles of
Hickman v. Taylor continue to apply even where Rule 26(b)(3) do not. See In re Qwest
Commc'ns Intern., Inc., 450 F.3d 1179, 1184 n.3, 1186 (10th Cir. 2006); United States
v. Deloitte, LLP, 610 F.3d 129, 136 (D.C. Cir. 2010). In the Tenth Circuit, that means
depositions may not inquire into the matters described as “an attorney's mental
impressions, conclusions, opinions or legal theories.”
A party may instruct a deposition witness not to answer when
necessary to preserve a privilege. Fed.R.Civ.P. 30(d)(1). The work
product privilege protects against disclosure of the “mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.” Fed.R.Civ.P. 26(b)(3).
The party asserting a work product privilege as a bar to discovery must

prove the doctrine is applicable. See Barclaysamerican Corp. v. Kane,
746 F.2d 653, 656 (10th Cir. 1984). A mere allegation that the work
product doctrine applies is insufficient. See Peat, Marwick, Mitchell & Co.
v. West, 748 F.2d 540, 542 (10th Cir. 1984) . . . .
Because the work product doctrine is intended only to guard
against divulging the attorney's strategies and legal impressions, it does
not protect facts concerning the creation of work product or facts
contained within work product. Feldman v. Pioneer Petroleum, Inc., 87
F.R.D. 86, 89 (W.D. Okla.1980). Thus [for example], work product does
not preclude inquiry into the mere fact of an investigation.
Dabney, 73 F.3d at 266.
As Plaintiffs explain it, Movants’ testimony is relevant insofar as they can explain
their charging decisions. Assuming without deciding that Movants’ subjective motives
are relevant to the legal claims in this case, the entire field of proposed inquiry relates to
Movants’ “strategies and legal impressions,” rather than to factual development. It is
opinion work-product, protected by an absolute and unqualified privilege. See United
States v. Taylor, 608 F. Supp. 2d 1263, 1267-69 (D. N.M. 2009) (collecting cases and
holding that charging practices are subject to work-product and deliberative-process
privileges).
Accordingly, the subpoenas served on Mr. Morrissey and Mr. Sims are hereby
quashed.
“Apex” Doctrine
In the interest of being thorough, the Court also finds that the “apex” doctrine
would bar deposing Mr. Morrissey. See EchoStar Satellite, LLC v. Splash Media
Partners, L.P., 2009 WL 1328226, at * 2 (D.Colo. May 11, 2009) (“Under what has been
termed the ‘apex doctrine,’ a court may protect a high executive officer from the burdens
of a deposition upon a showing that (1) the executive has no unique personal
knowledge of the matter in dispute; (2) the information sought can be obtained from
another witness; (3) the information can be obtained through an alternative discovery
method; or (4) severe hardship on the deponent.” (citing Thomas v. Int'l Business
Machines, 48 F.3d 478, 483 (10th Cir. 1995)). Plaintiffs have not suggested that Mr.
Morrissey has unique knowledge that cannot be gleaned elsewhere––specifically, from
Mr. Sims. Plaintiffs, indeed, characterize Mr. Sims as the “motivating force” for the
prosecutions at issue here. (Docket No. 76, p.2.) Accordingly, even if there were
non-privileged topics to be inquired into, the Court would nonetheless quash the
subpoena served on Mr. Morrissey.
Date: December 17, 2015