McFadden et al v. Meeker Housing Authority et al

Filing 335

ORDER Sustaining Plaintiffs' 245 Objection in Part. Magistrate Judge Gordon P. Gallagher's August 14, 2017 order (ECF No. 238 ) is OVERRULED except to the extent Plaintiffs seek sanctions because Defendants filed the Rule 35 Motion publi cly. All documents that reveal the Additional Diagnosis shall remain under Level 1 Restricted Access, and any such document filed in the future shall be filed under Level 1 Restricted Access. Knowledge of and documents relating to the Additional Diagnosis shall be treated as a "CONFIDENTIAL" under the Protective Order. ORDERED by Judge William J. Martinez on 3/8/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2304-WJM-GPG
MEGAN MCFADDEN,
LONNIE WHITE, and
ANTONIO “A.J.” WHITE,
Plaintiffs,
v.
MEEKER HOUSING AUTHORITY, a Property Management Company,
MELINDA PARKER,
MICHELLE BUCKLER,
EDY GEORGE, and,
STACIE KINCHER,
Defendants.

ORDER SUSTAINING PLAINTIFFS’ OBJECTION IN PART

Before the Court is Plaintiffs’ Objections to Magistrate Judge’s Order Denying
Motions to Restrict and for Sanctions (“Objection”). (ECF No. 245.) The Objection
refers to United States Magistrate Judge Gordon P. Gallagher’s August 14, 2017 order.
(ECF No. 238 (filed under Level 1 Restricted Access).) Defendants filed no response.
For the reasons set forth below the Court sustains Plaintiffs’ Objection in most
respects. However, the Court defers consideration of sanctions to a later stage of the
case.
I. LEGAL STANDARD
When reviewing an objection to a magistrate judge’s non-dispositive ruling, the
Court must affirm the ruling unless it finds that the ruling is “clearly erroneous or

contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); Ariza v. U.S. West
Commc’ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly erroneous standard
“requires that the reviewing court affirm unless it on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal quotation marks
omitted). The “contrary to law” standard permits “plenary review as to matters of law,”
see 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr.
2016 update), but the Court will set aside a magistrate judge’s order only if it applied the
wrong legal standard or applied the appropriate legal standard incorrectly, see Wyoming
v. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1236 (D. Wyo. 2002). In short, “[b]ecause
a magistrate judge is afforded broad discretion in the resolution of non-dispositive . . .
disputes, the court will overrule the magistrate judge’s determination only if his
discretion is abused.” Ariza, 167 F.R.D. at 133.
II. BACKGROUND
Plaintiff A.J. White (“White”) 1 lives in federally subsidized housing in Meeker,
Colorado. (ECF No. 237 ¶ 47.) White has a history of severe depression and attention
deficit/hyperactivity disorder (“ADHD”), and claims that he is disabled by these
conditions. (Id. ¶ 8.) He relies on his pet cats to help manage his disability, on the
recommendation of his mental health professional. (Id. ¶ 8, 61–64.) From 2014 to mid2016, the management of White’s apartment complex permitted residents to keep pets
as long as the pets provided documented assistance. (Id. ¶¶ 52–53.) White obtained

1

A.J.’s father, Lonnie, is also a plaintiff in this lawsuit, but for purposes of this order,
“White” refers solely to A.J.

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the necessary documentation and lived with his cats without objection from apartment
management. (Id. ¶¶ 58–60, 65.)
In July 2016, the management tightened its pet policy to require much more
documentation regarding companion animals, including a letter from a psychiatrist (a
letter from a psychologist or therapist apparently does not suffice) and “evidence of a
nexus between the companion animal and the debility attested to by the [psychiatrist].”
(Id. ¶¶ 88.) White soon filed this lawsuit, claiming that Defendants’ new policies
discriminate against his disability status in violation of the Rehabilitation Act of 1973, 29
U.S.C. §§ 794 et seq., and the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (See ECF
No. 1.)
On May 16, 2017, Defendants filed a motion under Federal Rule of Civil
Procedure 35 to compel a psychiatric examination of White (“Rule 35 Motion”). (ECF
No. 152.) That motion included statements regarding conditions beyond White’s
admitted depression and ADHD, particularly a diagnosis that—for reasons that will
become clear below—the Court will refer to simply as the “Additional Diagnosis.” (Id. at
2, 3, 7.) It also attached Plaintiffs’ May 5, 2017 Rule 26(a)(2) expert disclosure, which
listed, among many other persons, a clinical counselor who “treated [White] for major
depressive disorder, generalized anxiety disorder, and [the Additional Diagnosis]. [This
counselor] may offer his opinion of [White’s] mental health condition and its effects . . . .”
(ECF No. 152-3 at 6.) It similarly listed a medical doctor who “treated [White] for [the
Additional Diagnosis]. [This medical doctor] may offer his opinion of [White’s] mental
health condition and its effects . . . .” (ECF No. 152-3 at 7.)
The day after Defendants filed their Rule 35 Motion, White filed a restricted
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emergency motion to “seal” (i.e., restrict) the Rule 35 Motion and its exhibits (“Motion to
Restrict”), arguing that the Additional Diagnosis was private and that Defendants had
violated the Protective Order (ECF No. 112) by discussing it in a public filing. (ECF No.
156 at 2–3.) White announced that his counsel had conferred with Defendants about
restricting the Rule 35 Motion, but Defendants responded that White had made the
Additional Diagnosis public by including it in the Rule 26(a)(2) expert disclosure. (Id. at
2 n.1.) This disclosure had not been marked “confidential” per the Protective Order.
(See ECF No. 152-3.)
White preemptively countered this argument by noting a letter sent to
Defendants’ counsel on the same day that counsel exchanged expert disclosures. This
letter accused Defendants of violating the Protective Order because they had conveyed
the Additional Diagnosis to a third party without authorization. (ECF No. 156-3; see also
Part III.B.2, below.) White also noted that his counsel designated his entire deposition
transcript confidential per the Protective Order because the deposition focused
significantly on the Additional Diagnosis. (ECF No. 156 at 2.) And, Defendants had
only learned of the Additional Diagnosis by reviewing White’s medical records, which
were produced with a “CONFIDENTIAL” designation. Thus, White argued, Defendants
knew that the Additional Diagnosis should be treated as confidential under the
Protective Order. (Id. at 3.)
White also requested “attorneys’ fees and costs incurred in filing this Emergency
Motion.” (Id. at 4.) As grounds, White alleged “repeated violations of the Court’s
Protective Order in addition to [Defendants’] failure to follow Court procedures
[regarding discovery disputes].” (Id.)
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Defendants filed an unrestricted response confirming their view that White’s nonconfidential expert disclosure showed that the Additional Diagnosis was not confidential.
(ECF No. 168 at 3, 7.) 2 Defendants also argued that restriction was improper because
the Additional Diagnosis is relevant to resolving White’s claim, and restricting any
mention of it would deprive the public of its right to understand the Court’s eventual
reasoning either in favor of or against White’s claim. (Id. at 4–6.) Moreover, according
to Defendants, White testified at his deposition that he has already informed “some
people where he works” about the Additional Diagnosis. (Id. at 3.) Finally, Defendants
say that White’s Additional Diagnosis will, at some point, inevitably manifest itself
outwardly and therefore be impossible to keep private. (Id. at 7.)
In reply, White argued that whether his admitted disabilities (depression and
ADHD) are in some sense influenced or caused by the Additional Diagnosis is irrelevant
because he only needs to prove that he has a disability; he does not need to prove its
source. (ECF No. 197 at 3.) As for Defendants’ argument regarding White’s expert
disclosures, White asserted that “[t]he mere act of providing counsel with this
information does not render the information public in any way.” (Id. at 7.) Furthermore,
said White, “[i]f Defendants genuinely believed that disclosures served between counsel
were in fact discovery documents, it would have been appropriate for Defendants to
notify Plaintiffs of the missing ‘CONFIDENTIAL’ designation instead of using the
disclosures as a ‘gotchya’ moment.” (Id.) Concerning Defendants’ argument that the
Additional Diagnosis will inevitably manifest itself visibly, White countered with excerpts
from his deposition where he states that he plans to take steps to prevent that for as
2

White moved to seal this response as well. (See ECF No. 170.)

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long as possible. (Id. at 10.) White concluded by “repeat[ing] [his] request for the
issuance of civil contempt sanctions.” (Id.)
The Court referred White’s motion to Judge Gallagher. (ECF No. 160.) He
agreed with Defendants that restriction was inappropriate. He noted that White had
already “docketed unrestricted filings which contain[] significant information that many
individuals would consider to be highly confidential, sensitive, and extremely personal,”
including information about White’s depression and ADHD. (ECF No. 238 at 3.) He
also noted that White’s disabilities and mental impairments are “the very foundation of
the litigation” and recognized the parties’ “disputes over whether [White] even has to
prove his disability(ies) to proceed with this action.” (Id. at 5–6.) Judge Gallagher
ultimately reasoned that the public has a right to understand the basis for judicial
decisions, and that interest is all the more important when one of the litigants is a public
entity, namely, the Meeker Housing Authority. (Id. at 6.)
[T]he public has a right to know how [Defendants] treated
members of their community, whether they followed the law
or whether they are liable for the claims lodged against
them. If there are factors which reasonably come into play,
as does [White’s Additional Diagnosis], the public should
know that as well.
(Id.)
As for violation of the Protective Order, Judge Gallagher found none “[b]ased on
the recitation of how this information was discovered, [and] how it has been utilized.”
(Id. at 7.)
By various orders of the undersigned and of Judge Gallagher, all of the materials
implicated in the Rule 35 Motion and the Motion to Restrict, including Judge Gallagher’s
order, remain restricted awaiting the undersigned’s resolution of White’s Objection.
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III. ANALYSIS
A.

Relevance
To the extent the Additional Diagnosis is relevant, the Court agrees with Judge

Gallagher that evidence and discussion of it should not be restricted, because the public
has a right to know the basis for the Court’s decisions. However, the Court concludes
that it was contrary to law to conclude that the Additional Diagnosis is or will be relevant
here. Defendants’ argument regarding relevance is one sentence long and entirely
lacking in citation to authority. 3 It also lacks any inherent sense. White claims that he is
disabled due to depression and ADHD. Defendants nowhere claim that depression and
ADHD do not qualify as disabilities for purposes of the relevant statutes. Given that, it is
incumbent upon Defendants to explain how the Additional Diagnosis, which Defendants
suspect to be a source or contributor to White’s depression and ADHD, can convert his
asserted disabilities into non-disabilities. Defendants nowhere explained that in their
response to the Motion to Restrict—and, notably, they do not attempt to defend Judge
Gallagher’s conclusion, having not bothered to respond to White’s Objection.
Again, White has asserted depression and ADHD as his disabilities. He has
explicitly denied that the Additional Diagnosis is also a basis for his disability claim—and
the Court will hold him to that denial. In that light, the Additional Diagnosis is irrelevant
and therefore White has a legitimate interest in maintaining his privacy regarding the
Additional Diagnosis. White’s Objection is sustained in this regard. All documents

3

The Court cannot quote that sentence, or even reproduce it in a reasonably redacted
form, without revealing information about the Additional Diagnosis that should not be revealed.
For the record, the sentence in question is the fifth sentence of the first full paragraph on page 6
of ECF No. 168.

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(attorney-drafted documents, documents produced in discovery, or otherwise) that
reveal the Additional Diagnosis shall remain under Level 1 Restricted Access, and any
such document filed in the future shall be filed under Level 1 Restricted Access.
Knowledge of and documents relating to the Additional Diagnosis shall be treated as a
“CONFIDENTIAL” under the Protective Order. 4
B.

Violation of Protective Order & Sanctions
White seeks to hold Defendants in contempt for violating the Protective Order.

“To prevail in a civil contempt proceeding, the plaintiff has the burden of proving, by
clear and convincing evidence, that a valid court order existed, that the defendant had
knowledge of the order, and that the defendant disobeyed the order.” Reliance Ins. Co.
v. Mast Const. Co., 159 F.3d 1311, 1315 (10th Cir. 1998) (citation omitted) (“Reliance
II”). “Any ambiguities or omissions in the order will be construed in favor of [the person
charged with violating the order].” Reliance Ins. Co. v. Mast Const. Co., 84 F.3d 372,
377 (10th Cir. 1996) (“Reliance I”).
1.

Filing the Rule 35 Motion Without Restriction

White asserts that the Protective Order unambiguously prohibited Defendants
from filing the Rule 35 Motion publicly. (ECF No. 156 at 3–4; ECF No. 245 at 12–13.)
Surprisingly, however, the Protective Order is ambiguous on the question of information
included in pleadings.
4

The Court may revisit these restrictions if circumstances change—if, for instance,
White chooses to disclose the Additional Diagnosis publicly, or it manifests itself such that it
cannot be kept private. However, the Court makes clear that any document revealing the
Additional Diagnosis must be deemed “CONFIDENTIAL” and, if filed with the Court, filed under
Level 1 Restricted Access, until the Court decides otherwise. Defendants may not take it upon
themselves to unilaterally conclude that the Additional Diagnosis has become public knowledge
and therefore disregard this Order or the Protective Order.

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The Protective Order states that “documents, materials, and/or information”
designated “CONFIDENTIAL” “shall not, without the consent of the Party producing it or
further Order of the Court, be disclosed except that such information may be disclosed
to * * * the Court in this case and its employees.” (ECF No. 112 ¶ 4(e) (emphasis in
original).) As for filing procedures, the Protective Order directs as follows: “In order to
keep CONFIDENTIAL Information contained in documents filed with the court out of the
public record, the parties will confer prior to filing any document designated
CONFIDENTIAL.” (Id. ¶ 8 (emphasis added).) This procedure presumes that the party
is filing a discovery document that the producing party has specifically declared to be
confidential, typically by placing a “CONFIDENTIAL” label on the document. (See id.
¶¶ 6–8.) Oddly, the procedure says nothing about reciting, describing, or otherwise
mentioning confidential information in a motion or other filing or paper.
As for White’s expert disclosures, they bore no “CONFIDENTIAL” label. White
claims that expert disclosures are not discovery documents. Whether true or not,
White’s attorneys surely understand that Rule 26 disclosures, including expert
disclosures, are routinely filed on the Court’s docket in support of various requests for
relief (e.g., a motion to strike an untimely disclosed expert’s testimony). In the Court’s
experience, litigants indeed mark such disclosures as confidential under a protective
order, if needed. In any event, there is nothing in the Protective Order that prohibits a
party from filing a document that has not been designated confidential under the
procedures set forth in the Protective Order.
Accordingly, because the Tenth Circuit requires this Court to give Defendants the
benefit of any doubt, the Court cannot consider contempt sanctions against Defendants
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based on the Rule 35 Motion’s public filing.
2.

Disclosure to McKenzie

White also claims that contempt is warranted because of Defendants’ disclosure
of the Additional Diagnosis to Michael McKenzie, one of Defendants’ designated
experts, who in turn disclosed the Additional Diagnosis to a third party, namely, an
employee of the Colorado Housing and Finance Authority who provides advice
regarding Section 8 compliance. (ECF No. 245 at 11–12; ECF No. 156-3 at 9–10.) At
his deposition, McKenzie testified that he never received a copy of the Protective Order,
and White says that Defendants never had a legitimate, litigation-related basis to
disclose the Additional Diagnosis to McKenzie. (ECF No. 245 at 12; see also ECF No.
112 ¶ 4(d) (Protective Order permits disclosure to experts “to the extent such disclosure
is necessary for preparation, trial or other proceedings”).)
Notably, disclosure to McKenzie was not the basis for contempt sanctions in
White’s Motion to Restrict. White alluded to McKenzie with a generic accusation about
disclosure “to non-parties, who then continued to disseminate the information to others.”
(ECF No. 156 at 2.) But the actual request for sanctions was based on Defendants’
choice to file the Rule 35 Motion as a publicly accessible document. (See id. at 3–4.)
Defendants’ response brief and White’s reply brief nonetheless went “into the weeds,”
so to speak, regarding whether disclosure to McKenzie violated the Protective Order
(ECF No. 168 at 8; ECF No. 197 at 8–9) and Judge Gallagher’s order shows that he
specifically had the McKenzie dispute in mind when he denied sanctions (ECF No. 238
at 7).
The Court finds that Judge Gallagher clearly erred in not considering contempt
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sanctions in this circumstance. Defendants learned of the Additional Diagnosis through
medical records designated “CONFIDENTIAL.” Defendants therefore were not
permitted to disclose the Additional Diagnosis to McKenzie without “notify[ing] [him] of
the terms of [the] Protective Order.” (ECF No. 112 ¶ 5.) McKenzie testified at his
deposition that he had never seen the Protective Order and that he had no recollection
of being informed by Defendant’s attorney “not to share documents that were marked as
confidential.” (ECF No. 223-2 at 11.) McKenzie also testified that he had never been
instructed to keep the Additional Diagnosis confidential. (Id. at 12.) This strongly
suggests that Defendants’ counsel violated the Protective Order. There is also some
question—a more factually complex question than the Court is prepared to address in
this posture—whether Defendants’ counsel disclosed the Additional Diagnosis to
McKenzie for a proper litigation purpose.
In short, there is a potential basis for contempt proceedings. However, the Court
will not institute such proceedings at this stage of the case, where any contempt penalty
would likely be limited to attorneys’ fees. See O’Connor v. Midwest Pipe Fabrications,
Inc., 972 F.2d 1204, 1211 (10th Cir. 1992). Currently pending is Plaintiffs’ Motion for
Entry of Judgment and Dismissal Due to Defendants’ Litigation Misconduct. (ECF No.
288.) Should the Court grant this motion—a matter the Court will resolve in due course,
and on which it has no present opinion—Plaintiffs would surely move for their attorneys’
fees. To the extent those fees encompass the entire case (and the Court presumes
they will), any award specific to the issues raised in the Objection would turn out to have
been a needlessly duplicative exercise. Moreover, the parties will file dispositive
motions soon, and to the extent White prevails, he may also be entitled to fees for his
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portion of the case. If the case goes to trial and White prevails, the same circumstance
obtains.
The Court accordingly finds that addressing any attorneys’ fees at this stage
would be an inefficient use of judicial resources. If, however, White never becomes
entitled to fees as a prevailing party, White may move again (at the conclusion of this
case) for sanctions specific to the apparent violation of the Protective Order noted
above.
Moreover, Defendants’ counsel are sternly warned that their behavior in this case
is deeply troubling and has caused the Court to question whether they have crossed the
line from permissible advocacy into sanctionable harassment and intentional
obstruction. Defendants’ counsel’s deposition of White is particularly disturbing and, on
its face, smacks of purposeful harassment and intimidation. Other events, such as
recent proceedings regarding letters that Meeker Housing Authority sent to its residents
falsely accusing Plaintiffs’ law firm of legal violations, have given the Court further
pause. (See, e.g., ECF No. 309.) Accordingly, Defendants’ counsel are on notice that
the Court is independently considering proceedings regarding sanctions and/or potential
referral to relevant attorney disciplinary authorities. The Court will continue to evaluate
the propriety of such actions as this case progresses.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiffs’ Objections to Magistrate Judge’s Order Denying Motions to Restrict
and for Sanctions (ECF No. 245) is SUSTAINED IN PART;

2.

Magistrate Judge Gordon P. Gallagher’s August 14, 2017 order (ECF No. 238) is
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OVERRULED except to the extent Plaintiffs seek sanctions because Defendants
filed the Rule 35 Motion publicly;
3.

All documents that reveal the Additional Diagnosis shall remain under Level 1
Restricted Access, and any such document filed in the future shall be filed under
Level 1 Restricted Access; and

4.

Knowledge of and documents relating to the Additional Diagnosis shall be treated
as a “CONFIDENTIAL” under the Protective Order.
Dated this 8th day of March, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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