Richter v. City of Commerce City, Colorado et al
ORDER ON MOTION TO QUASH denying 45 Motion to Quash by Magistrate Judge Michael E. Hegarty on 04/01/2016. Adams County shall produce to Plaintiff all documents requested in the subpoena in accordance with the operative Protective Order in this case 38 on or before 4/15/2016.(mdave, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01826-MEH
DEREK M. RICHTER,
CITY OF COMMERCE CITY, COLORADO,
TROY SMITH, in his individual capacity,
DAVID CUBBAGE, in his individual capacity, and
KAREN STEVENS, in her individual capacity,
ORDER ON MOTION TO QUASH
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is an Amended Motion to Quash Subpoena filed by the Seventeenth Judicial
District Attorney’s Office [filed February 26, 2016, docket #45]. The matter is briefed to the extent
required by the applicable rules, and the Court finds oral argument would not materially assist in
adjudicating the motion. For the reasons that follow, the Court denies the Motion.
Plaintiff initiated this action on August 24, 2015, claiming Defendants took adverse
employment actions against him in violation of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”).
Specifically, Plaintiff alleges that he suffered
discrimination and retaliation by the Defendants because of his service with the Colorado Army
National Guard, and the workplace absences that this service necessitated. Defendants answered
denying Plaintiff’s allegations and asserting 17 affirmative defenses, including the claim that “[a]ll
actions referenced by Plaintiff involving these Defendants were based on legitimate, nondiscriminatory, and non-retaliatory reasons.” Answer, docket #22 at 21.
On February 10, 2016, the Plaintiff served on the Seventeenth Judicial District Attorney’s
Office (“Adams County”) a subpoena to produce “[e]ach document and audio/visual recording related
to or associated with a 2012 investigation in Adams County (via investigator Joe Maier, and possibly
others) conducted regarding discrimination against military reservists employed by the Commerce
City, Colorado Police Department.” Subpoena, docket #40 at 3. On February 22, 2016, Adams
County filed a motion to quash the subpoena, but the Court denied the motion without prejudice due
to a procedural deficiency. Adams County then filed the present amended motion to quash the
subpoena on February 26, 2016.
Adams County argues that pursuant to Colo. Rev. Stat. § 24-72-702(1)(d), no record exists
with respect to the referenced investigation and, therefore, the County requests that this Court quash
the subpoena because it imposes an undue burden. In response to the motion, Plaintiff claims that
an Adams County attorney met with Plaintiff’s counsel and the County attorney acknowledged the
existence of the requested documents. Response, docket #47 at 5. According to Plaintiff, Adams
County refused to produce the records and even rejected Plaintiff’s offers to narrow the scope of the
subpoena and to request that the material be produced under a protective order. Plaintiff argues these
records are essential to the case because, “the information contained in the report subject to this
subpoena is needed to rebut Defendants’ defenses and should be produced.” Id. at 3.
Fed. R. Civ. P. 45(d)(3)(A) requires the Court to quash or modify a subpoena that: (i) fails
to allow a reasonable time to comply; (ii) requires excessive travel by a non-party; (iii) requires
disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects
a person to undue burden. There is no indication that subsections (i)-(iii) apply here; thus, the Court
will analyze whether the subpoena subjects Adams County to an undue burden.
Adams County rests its argument that Plaintiff’s subpoena is “unreasonable and oppressive”
entirely on Colo. Rev. Stat. § 24-72-702(1)(d), and claims that pursuant to the statute, the requested
records do not exist. Motion, docket #45 at 1. Colo. Rev. Stat. § 24-72-702 codifies the rules and
procedures for sealing arrest and criminal records, other than convictions. Colo. Rev. Stat. § 24-72702(1)(d) states, “[u]pon the entry of an order to seal the records, the petitioner and all criminal
justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with
respect to the person.” Because Adams County relies solely on this narrow and specific statutory
provision, the Court must conclude that the referenced documents in fact physically exist. However,
the statute contains several exceptions, including Colo. Rev. Stat. § 24-72-702(4)(b),1 which provides
“[c]ourt orders sealing records of official actions entered pursuant to this section do not limit the
operation of rules of discovery promulgated by the supreme court of Colorado.” See People v.
Connors, 230 P.3d 1265, 1269 (Colo. App. 2010) (citing the previous, but identical, subsection of
the rule and holding that sealing differs from expungement in its legal effect in part because court
orders sealing records “do not limit the operation of applicable discovery rules”).
Adams County’s amended motion makes no reference to this discovery exception to Colo.
Rev. Stat. § 24-72-702. See docket #45. Plaintiff’s response to the motion specifically identifies the
Plaintiff cites Colo. Rev. Stat. § 24-72-703(2), but that statute governs the sealing of
convictions and, thus, does not apply to this case.
exception and argues that it precludes Adams County’s arguments of undue burden. Response,
docket #47. Plaintiff also notes that Adams County failed to produce the court order that allegedly
seals the records Plaintiff seeks. Id. at 7. Although Adams County was provided the opportunity to
file a reply brief and, thus, the chance to rebut Plaintiff’s arguments, Adams County did not do so.
The Court finds Adams County cannot rely on one discrete section of the statute to argue Plaintiff’s
subpoena causes it an undue burden without addressing the applicable exception. In addition, Adams
County’s failure to produce the court order allegedly sealing the records prevents this Court from
accepting and relying on this argument. Because Adams County has failed to address these essential
elements of Colo. Rev. Stat. § 24-72-702(1)(d), Adams County cannot rely solely on the statute to
make a claim that the records do not exist and cannot be produced.
For the reasons stated above, it is ORDERED that Adams County’s Motion to Quash
Subpoena of the Seventeenth Judicial District Attorney’s Office [filed February 26, 2016, docket #45]
is denied. Adams County shall produce to Plaintiff all documents requested in the subpoena in
accordance with the operative Protective Order in this case (docket #38) on or before April 15,
Dated at Denver, Colorado, this 1st day of April, 2016.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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