Yater v. Powderhorn Ski Company LLC

Filing 43

ORDER granting in part and denying in part 30 Motion to Quash. By Magistrate Judge Nina Y. Wang on 2/8/2018. (nywlc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01298-LTB-NYW
MITCHELL F. YATER,
Plaintiff,
v.
POWDERHORN SKI COMPANY LLC,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO QUASH
Magistrate Judge Nina Y. Wang
This matter is before the court pursuant to the Motion to Quash Subpoena to Testify at a
Deposition in a Civil Action (“Motion to Quash”), filed by third-party the Colorado Civil Rights
Division (“CCRD”). [#30, filed November 17, 2017]. The Motion to Quash was referred to this
Magistrate Judge pursuant to the Order Referring Case dated August 8, 2017 [#17] and the
memorandum dated November 20, 2017 [#31]. The court heard oral argument regarding the
Motion to Quash on January 11, 2018, and took the motion under advisement. After review of
the Motion and associated briefing, the entire docket, and the applicable law, this court
respectfully GRANTS IN PART and DENIES IN PART the Motion to Quash.
BACKGROUND
Plaintiff Mitchell F. Yater (“Plaintiff” or “Mr. Yater”) initiated this action on May 30,
2017, alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. §§ 2434401 et seq. [#1]. Mr. Yater asserts that he worked for Defendant as a regular ski-season

employee beginning in 2007, and that he was employed in the rental shop of Defendant’s ski
resort during the 2013-2014 ski season. [Id. at ¶¶ 13-14]. At that time, Mr. Yater was dating
another employee, Alex Nees, who also worked in the rental shop and who was allegedly the
subject of sexual harassment by their joint supervisor, Roger Roberts. [Id. at ¶¶ 21-22]. Mr.
Roberts fired Ms. Nees in January 2014, after which Mr. Yater complained to Defendant’s
human resources department that Mr. Rogers terminated Ms. Nees on pretextual grounds for
refusing his unwelcomed sexual advances. [Id. at ¶ 28]. Mr. Yater alleges that within four hours
of speaking with the human resource department, a fellow employee informed him that he would
be fired the following day. [Id. at ¶ 30]. Indeed, the next day, Mr. Roberts issued Mr. Yater a
written warning for arriving at work eight minutes late and then, after Mr. Yater left the ski boot
counter to assist at the short-staffed snowboard counter, Mr. Roberts presented him with an
Employee Disciplinary Action that recommended termination for failure to follow instructions.
[Id. at ¶¶ 32-36]. After meeting with the human resource department, Defendant fired Mr. Yater
for insubordination and failure to follow instructions, and for his allegedly confrontational
behavior during the meeting. [Id. at ¶ 38].
Mr. Yater filed a timely charge of retaliation with the Colorado Civil Rights Division
(“CCRD”) and the Equal Employment Opportunity Commission (“EEOC”) on or about July 24,
2014. [Id. at ¶ 8]. The CCRD opened an investigation into the matter and assigned investigator
Samuel Anderson to the file. [#30 at 2]. Mr. Anderson helped negotiate some resolution terms
between the Parties, [id.], before the EEOC issued a Notice of Right to Sue letter on March 1,
2017. [#1 at ¶ 9]. This action followed.
In response to the Complaint, Defendant filed an Answer denying liability and asserting
two counterclaims for enforcement of the settlement agreement and breach of contract. See [#9].

2

Specifically, Defendant alleges that Plaintiff made a settlement demand on or about April 24,
2015, and, following negotiations, the Parties entered into an enforceable contract to settle
Plaintiff’s claims on June 25, 2015. [Id. at 8-17]. Defendant further contends that later, on June
25, 2015, Mr. Yater “changed his mind and decided he no longer wished to settle his claims.”
[Id. at ¶ 18]. In response to the counterclaims, Mr. Yater asserts that he “neither admits nor
denies the allegations” because “the allegations contain [] confidential information protected by
the Colorado Dispute Resolution Act, Colo. Rev. Stat. § 1322-301, et seq.” [#16 at ¶¶ 24-25, 2830].
As part of discovery, Mr. Yater sought documents from the CCRD and subpoenaed Mr.
Anderson to gather facts to establish that Mr. Anderson was a “mediator” under the Colorado
Dispute Resolution Act, so that the Parties would be precluded from engaging in discovery into
any communications made at Mr. Anderson’s behest.

[#30 at 3].

The CCRD produced

documents pursuant to a waiver, but declined to produce its communication log based on
privilege. [Id. at 9]. The CCRD also declined to make Mr. Anderson available for deposition,
and thereafter filed the Motion to Quash. The CCRD argues that a deposition is not the least
intrusive means for obtaining information from Mr. Anderson, as he has executed an affidavit
averring that he has no independent recollection of the investigation and the CCRD’s records are
the best source of knowledge on the subject. [#30, #30-4]. It also argues that some of the
information sought by Mr. Yater intrudes on the Governmental Deliberative Process Privilege, as
it requires Mr. Anderson to disclose his mental impressions about the Parties’ expectations of
finality. [#30 at 7-8]. The CCRD further contends that to the extent Mr. Yater seeks testimony
regarding the information posted on the CCRD website, Mr. Anderson is not the appropriate
person to depose as he has no relevant knowledge. [#30 at 7]. The CCRD also offers to issue an

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authentication of its files if so requested. [Id.]. Finally, the CCRD contends that the deposition
creates an undue burden on the agency beyond just this case, and expresses concern that allowing
the deposition “could create a precedent and have a broad effect across the hundreds of
discrimination cases filed each year,” such that “[t]he agency would be severely hampered in its
statutory duty in timely processing administrative charges and enforcing Colorado’s antidiscrimination statute.” [Id. at 10].
Mr. Yater opposes the Motion to Quash, and argues that the deposition of Mr. Anderson
is necessary to establish that “the settlement discussions that took place between April 21 and
June 25, 2015 were a ‘mediation’ conducted by the CCRD investigator and that the proposed
settlement agreement was a ‘mediation communication’ under the Dispute Resolution Act.”
[#34 at 3]. Mr. Yater enumerates a number of topics of factual testimony he seeks from Mr.
Anderson, such as Mr. Anderson’s customs and practices concerning informal dispute resolution;
whether the settlement discussions were confidential and whether the parties were informed as to
confidentiality; what Mr. Anderson told Mr. Yater about the settlement discussions and his role;
whether there was a written agreement to mediate and if not, why not; how the CCRD
investigator/agency handled the settlement documents; if the CCRD is a current record custodian
of the settlement agreement; whether Defendant signed the settlement agreement; and whether
the investigator and the agency regarded the settlement as final. [Id. at 3-4]. Mr. Yater contends
such information is necessary to support his defenses to Defendant’s two counterclaims, and that
the Governmental Deliberative Process Privilege does not protect factual information and in any
event the CCRD takes no steps in formally invoking such privilege. [#34 at 7]. Mr. Yater
argues that the circumstances presented here are akin to those in Giezie v. Valley Health Sys.,
LLC, No. 12cv00036-ECR-GWF, 2012 WL 3929446 (D. Nev. Sept. 7, 2012), in which the court

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compelled the testimony of an EEOC Investigator after the EEOC raised similar objections to the
deposition.
In Reply, the CCRD argues that “Mr. Yater failed to identify areas of factual testimony
that would require a CCRD investigator’s testimony,” [#36 at 1], and that Mr. Anderson’s
testimony is unnecessary with respect to each of the enumerated topics, because either Party
could attest or testify to what information Mr. Anderson conveyed. [Id. at 2-3]. The CCRD also
distinguishes this case from Giezie, and restates its position that permitting the deposition of Mr.
Anderson will result in both an undue burden for CCRD and repercussions that will reverberate
well beyond this case.
Defendant did not file a response to the Motion to Quash, but argued during the Status
Conference that the pretrial deadlines set for two phases of discovery would be jeopardized
should the court permit the deposition of Mr. Anderson. In particular, Defendant argued, the
Scheduling Order contemplated that during the first phase of discovery the Parties would focus
on whether there is an enforceable settlement agreement, and then focus during the second phase
on the merits of Mr. Yater’s retaliation claim. [#28]. Defendant also clarified that it does, in
fact, dispute whether Mr. Anderson’s involvement during the course of the CCRD investigation
gave rise to a “mediation,” and whether the Parties’ resulting communications occurred at the
behest of a mediator, such that they would be protected by the Colorado Dispute Resolution Act.
LEGAL STANDARDS
I.

Rule 45
A subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil

Procedure is considered discovery within the meaning of the Federal Rules of Civil Procedure.
Rice v. U.S., 164 F.R.D. 556, 556–57 (N.D. Okla. 1995). Accordingly, a Rule 45 subpoena must

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satisfy the same standards that govern discovery between the parties, i.e., to be enforceable, it
must seek information that is relevant to a party’s claims or defenses, and that is proportional to
the needs of the case. Fed. R. Civ. P. 26(b)(1). In addition, discovery conducted pursuant to a
Rule 45 subpoena must be concluded by the deadline specified in the court’s Scheduling Order.
Grant v. Otis Elevator Co., 199 F.R.D. 673, 675 (N.D. Okla. 2001); Rice, 164 F.R.D. at 558.
On a timely motion, the court must quash or modify a subpoena that, inter alia: (1) fails
to allow a reasonable time to comply; (2) requires the disclosure of privileged or other protected
matter, if no exception or waiver applies; (3) subjects a person to undue burden; or (4) requires
the disclosure of a trade secret or other confidential research, development, or commercial
information. Fed. R. Civ. P. 45(d)(3)(A), (d)(3)(B). Generally, “a party has no standing to quash
a subpoena served upon a third party, except as to claims of privilege relating to the documents
being sought[,]” or “upon a showing that there is a privacy interest applicable.” Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) (citations omitted) (“[a]bsent a specific
showing of a privilege or privacy, a court cannot quash a subpoena duces tecum”). “Objections
unrelated to a claim of privilege or privacy interests are not proper bases upon which a party may
quash a subpoena.” Cobbler Nevada, LLC v. Does, No. 15-CV-02771-WYD-MEH, 2016 WL
300827, at *1 (D. Colo. Jan. 25, 2016) (citations omitted).
II.

Rule 26(b)(1)
Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of permissible

discovery. Fed. R. Civ. P. 26(b)(1). The Rule permits discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.
Id. In considering whether the discovery sought is proportional, the court weighs the importance
of the discovery to the issues at stake in the action, the amount in controversy, the parties’

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relative access to relevant information, the parties’ resources, the importance of discovery in
resolving the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Id.
The scope as defined no longer includes all information “reasonably calculated to lead to
admissible evidence.” The amendments to Rule 26 effective December 1, 2015, purposefully
removed that phrase, due to concern expressed by the Advisory Committee on the Federal Rules
of Civil Procedure that use of the “reasonably calculated” phrase to define the scope of discovery
“might swallow any other limitation on the scope of discovery.” See In re Bard Filters Products
Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (citing Fed. R. Civ. P. 26 advisory
committee’s notes to 2015 amendment). The applicable test is whether the evidence sought is
relevant to any party’s claim or defense, and proportional to the needs of the case. Id. Rule 401
of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more or
less probable than it would be without the evidence.” Fed. R. Evid. 401.
The Advisory Committee Notes to the 2015 Amendments make clear that the party
seeking discovery does not bear the burden of addressing all proportionality considerations.
Advisory Comm. Notes to Fed. R. Civ. P. 26(b)(1). Generally, when discovery appears to be
relevant on its face, the responding party bears the burden of establishing that the requested
discovery does not come within the scope of relevant evidence, or is of such marginal relevance
that the potential benefit of discovery is outweighed by the harm. Simpson v. Univ. of Colo., 220
F.R.D. 354, 356 (D. Colo. 2004) (citations omitted). But when the relevance of a discovery
request or device is not apparent on the face of the request or device itself, the proponent of the
discovery bears the burden of making an initial, rebuttable showing of relevance. See Thompson

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v. Jiffy Lube Int'l, Inc., No. 05–1203–WEB, 2007 WL 608343, at *8 n. 20 (D. Kan. Feb. 22,
2007).
The court may also consider the fact that the discovery sought is directed at a nonparty,
and in such case, the ordinary burden imposed under Rule 26 is generally greater. Echostar
Commc'ns Corp. v. News Corp., 180 F.R.D. 391, 394 (D. Colo. 1998). The court indeed
considers this heavier burden, as discussed below.
III.

Colorado Dispute Resolution Act
The Colorado Dispute Resolution Act provides, in pertinent part:
Any party or the mediator or mediation organization in a mediation service
proceeding or a dispute resolution proceeding shall not voluntarily disclose or
through discovery or compulsory process be required to disclose any information
concerning any mediation communication or any communication provided in
confidence to the mediator or a mediation organization, unless and to the extent
that:
(a) All parties to the dispute resolution proceeding and the mediator consent in
writing; or
(b) The mediation communication reveals the intent to commit a felony, inflict
bodily harm, or threaten the safety of a child under the age of eighteen years; or
(c) The mediation communication is required by statute to be made public; or
(d) Disclosure of the mediation communication is necessary and relevant to an
action alleging willful or wanton misconduct of the mediator or mediation
organization.

Colo. Rev. Stat. § 13-22-307(2). “Mediation communications” are defined as “any oral or
written communication prepared or expressed for the purposes of, in the course of, or pursuant
to, any mediation services proceeding.”

Id. at § 13-22-307(2.5) (emphasis added).

The

Colorado Supreme Court has been careful to explain that the definition of “mediation
communication” does “not [] extend to all communications that may in some way or another be
related to the mediation. Rather, ‘mediation communications’ are limited to those made in the
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presence or at the behest of the mediator.” See Yaekle v. Andrews, 195 P.3d 1101, 1110 (Colo.
2008) (en banc). Documents pre-dating or subsequent to the actual mediation may be covered by
the confidentiality contemplated by § 13-22-307, but the Yaekle decision makes clear such
inquiry is fact-intensive. Id.
ANALYSIS
As discussed above, Rule 26 of the Federal Rules of Civil Procedure provides that a party
may discover any nonprivileged matter relevant to the party’s claim or defense, as long as it is
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Larson v. Larson, 687 F. App'x
695, 707 (10th Cir. 2017). The CCRD contends that Mr. Anderson’s deposition testimony is not
relevant, in some instances it is privileged, and, in all instances, it is unduly burdensome and thus
not proportional to the needs of the case. The court considers first the question of relevancy,
second the issue of privilege, and, finally, whether the discovery sought is proportional to the
needs of the case.
I.

Relevance
The CCRD argues that the information sought from Mr. Anderson is not relevant to

“whether the parties had a binding settlement agreement through the CCRD process, as
facilitated by investigator Mr. Anderson.” [#30 at 2]. The Parties vigorously dispute whether
the conciliation conducted by Mr. Anderson constituted a “mediation” under the Colorado
Dispute Resolution Act. Mr. Yater insists that the CCRD process was a mediation, and thus any
statements made during the course of the mediation or at the behest of the mediator are

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privileged and inadmissible in this action. Defendant contends that Mr. Yater’s statements and
actions within the CCRD process are not covered by the Colorado Dispute Resolution Act.1
The Colorado Dispute Resolution Act defines mediation as “an intervention in dispute
negotiations by a trained neutral third party with the purpose of assisting the parties to reach their
own solution.” Colo. Rev. Stat. § 13-22-302(2.4). A mediation communication is defined as:
any oral or written communication prepared or expressed for the purposes of, in
the course of, or pursuant to, any mediation service proceeding or dispute
resolution program proceeding, including, but not limited to, any memoranda,
notes, records, or work product of a mediator, mediation organization, or party;
except that a written agreement to enter into a mediation service proceeding or
dispute resolution proceeding, or a final written agreement reached as a result of a
mediation service proceeding or dispute resolution proceeding, which has been
fully executed, is not a mediation communication unless otherwise agreed upon
by the parties.
Id. at § 13-22-302(2.5). A mediator is defined as “a trained individual who assists disputants to
reach a mutually acceptable resolution of their disputes by identifying and evaluating
alternatives.” The Tenth Circuit recognizes that the Act “protects as confidential” mediation
communications that are “made in the presence or at the behest of the mediator. Larson, 687 F.
App’x at 706. The Act further sets forth the requirements for rendering a settlement agreement
judicially enforceable:
If the parties involved in a dispute reach a full or partial agreement, the agreement
upon request of the parties shall be reduced to writing and approved by the parties
and their attorneys, if any. If reduced to writing and signed by the parties, the
agreement may be presented to the court by any party or their attorneys, if any, as
a stipulation and, if approved by the court, shall be enforceable as an order of the
court.

1

Defendant does not articulate precisely why it believes the Colorado Dispute Resolution Act
does not apply, e.g., that the CCRD process does not constitute a “mediation” under the statute,
or that the statements attributable to Mr. Yater were not made at the behest of the mediator. For
the purposes of the Motion to Quash, Defendant’s theory is immaterial to the court’s order.
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Yaekle, 169 P.3d at 198 (citing Colo. Rev. Stat. § 13-33308(1)). See also GSL of ILL, LLC v.
Kroskob, No. 11-CV-00939-WYD-KMT, 2012 WL 10311, at *4 (D. Colo. Jan. 3, 2012); Sun
River Energy, Inc. v. Nelson, Civil Action No. 11–cv–00198–MSK–MEH, 2011 WL 3924973, at
*4 (D.Colo. Sept. 7, 2011.) (discussing instances in which parties can enter a binding settlement
agreement under the Colorado Dispute Resolution Act).
In reviewing the topics for deposition as identified by Plaintiff, this court concludes that
most of the topics are directed at factual issues that are relevant to the question of whether the
communications and actions undertaken by the Parties in conjunction with Mr. Anderson are
entitled to protection under the Colorado Dispute Resolution Act. However, certain topics stray
from the facts into areas of legal conclusion, e.g., were the settlement discussions “confidential,”
and into areas outside of Mr. Anderson’s personal knowledge, e.g., whether “the agency”
insisted that all settlement documents go through the investigator/agency and did “the agency”
regard the settlement as final. Mr. Anderson is subpoenaed as an individual witness, not as an
expert witness or a Rule 30(b)(6) deponent for the agency. Therefore, any deposition of Mr.
Anderson must be limited to his personal recollection of the factual circumstances of the
conciliation efforts, e.g., his statements to the Parties regarding confidentiality or the policy or
practice of the CCRD with respect to settlement agreements.
II.

Privileges
Deliberative Process Privilege.

The court next considers the applicability of the

“Governmental Deliberative Process privilege” asserted by the CCRD.2 By filing a Title VII
complaint, Mr. Yater invoked the court’s subject matter jurisdiction under 28 U.S.C. §§ 1331
and 1343. [#1 at ¶ 4]. However, he also pled that the court has supplemental jurisdiction over

2

Though not entirely clear, it appears from the citations the CCRD uses that it is invoking the
federal deliberative process privilege. See [#30 at 7-8].
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his CADA claim. [Id. at ¶ 5]. Each of Defendant’s counterclaims arise under state common law.
See [#9]. Generally, federal common law governs privilege in a case that arises under federal
question jurisdiction. Fed. R. Evid. 501. However, the Tenth Circuit has held that in cases
involving both federal and state causes of action, “a federal court should look to state law in
deciding privilege questions” for the state law claims. Motley v. Marathon Oil Co., 71 F.3d
1547, 1551 (10th Cir. 1995) (citing Fed. R. Evid. 501; White v. American Airlines, Inc., 915 F.2d
1414, 1424 (10th Cir. 1990)). But see Notes of Committee on Judiciary, Senate Report 93-1277
(observing that “[b]asically, [the Rule] provides that in criminal and Federal question civil cases,
federally evolved rules on privilege should apply since it is Federal policy which is being
enforced. [It is also intended that the Federal law of privileges should be applied with respect to
pendant State law claims when they arise in a Federal question case.]”); Vondrak v. City of Las
Cruces, 760 F. Supp. 2d 1170 (D.N.M. 2009) (holding that federal privilege law applies to both
federal and state law claims when subject matter jurisdiction is premised on a federal question);
Joyce v. N. Metro Task Force, No. 10-CV-00649-CMA-MJW, 2011 WL 1884618, at *3 (D.
Colo. May 18, 2011) (same).
Under Colorado common law, the deliberative process privilege is a qualified privilege.
“The primary purpose of the privilege is to protect the frank exchange of ideas and opinions
critical to the government’s decisionmaking process where disclosure would discourage such
discussion in the future.” City of Colorado Springs v. White, 967 P.2d 1042, 1051 (Colo. 1998)
(en banc). The Colorado Supreme Court went on to explain: “[t]hus, a key question in a
deliberative process privilege case is whether disclosure of the material would expose an
agency’s decisionmaking process in such a way as to discourage discussion within the agency
and thereby undermine the agency’s ability to perform its functions.” Id. The federal privilege

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is similar; the deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by which Government decisions
and policies are formulated.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532
U.S. 1, 2, 121 S. Ct. 1060, 1062, 149 L. Ed. 2d 87 (2001) (citing NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29) (1975)). As with all privileges, the court
narrowly construes the deliberative process privilege.

Roe v. Catholic Health Initiatives

Colorado, 281 F.R.D. 632, 636 (D. Colo. 2012) (citing Everitt v. Brezzel, 750 F. Supp. 1063,
1066 (D. Colo. 1990)). “Whatever their origins, these exceptions to the demand for every man’s
evidence are not lightly created nor expansively construed, for they are in derogation of the
search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039
(1974). The burden of establishing the applicability of the privilege lies with the CCRD.
Motley, 71 F.3d at 1550; Alcon v. Spicer, 113 P.3d 735, 739 (Colo. 2005).
In applying these concepts, and regardless of whether federal or state privilege law
applies, this court finds (and the CCRD implicitly acknowledges through its argument) that the
deliberative process privilege does not bar most of the testimony identified in Plaintiff’s
Opposition to the Motion to Quash. See [#34 at 3-4]. The deliberative process privilege does
not protect purely factual or investigative matters. See S.E.C. v. Nacchio, No. CIV.A.05-CV00480-MSK-CBS, 2009 WL 211511, at *3 (D. Colo. Jan. 29, 2009), aff'd, 704 F. Supp. 2d 1099
(D. Colo. 2010) (citing Trentadue v. Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007)).
The conversations between the CCRD investigator and the Parties do not reflect any pre-decision
deliberation of the agency or the investigator, and the inquiries into Mr. Anderson’s job
responsibilities as a CCRD investigator and his training do not implicate any deliberation on the

13

part of the agency. The CCRD’s concerns focus on the last topic, i.e., did the investigator regard
the settlement as final.3 [#30 at 79].
This court is not persuaded that the investigator’s impression as to whether a final
settlement was reached is deliberative, as contemplated by the federal or state privilege. First,
Mr. Anderson’s affidavit provides no explanation as to how his impressions regarding the
Parties’ conciliation efforts reflect his own (or the agency’s) process in determining how to
proceed with a CCRD investigation or what final decision to render. Indeed, this court is hardpressed, based on the record before it, to understand how Mr. Anderson’s mental impression of a
process between the Parties reflects the agency’s decision-making process at all. Nor is it clear
that Mr. Anderson’s testimony as to whether he believed the settlement agreement to be final
somehow reflects a pre-decision deliberation regarding an issue or agency policy. Accordingly,
this court concludes that the deliberative process privilege simply does not apply in this instance.
Work Product. It appears that the CCRD has withheld a communication log on the basis
that it contains work product. [#30 at 9]. The court’s review of both the subpoena and Plaintiff’s
Opposition to the Motion to Quash finds that Mr. Yater no longer seeks that information. See
[#30-1; #34]. Accordingly, this court has no basis on which to conclude that the CCRD’s
invocation of the work product doctrine to protect a communications log that was withheld from
production is improper, and the Motion to Quash will be granted as to the communication log.
III.

Undue Burden
Having concluded that the majority of the topics are relevant and the deliberative process

privilege does not apply, the court now turns to whether the discovery sought is proportional to
the needs of the case. The CCRD represents that it has produced its non-privileged records per

3

The court previously found that “the agency’s” impression of whether the settlement was final
is not an appropriate topic for testimony by Mr. Anderson.
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the Parties’ agreement and insists that those records “are the best source of non-privileged factual
information in CCRD’s possession, not Mr. Anderson himself.” [#30 at 6]. In his affidavit, Mr.
Anderson sets out his employment history at the CCRD, his current duties, and his training in
mediation, and similarly opines that “the best source of information about the Yater
discrimination charge is the file materials.” [#30-4]. Respectfully, Mr. Anderson’s opinion and
the CCRD’s position as to the “best source” of information sought by Mr. Yater are not
dispositive.
The Federal Rules of Civil Procedure do not limit parties to the use of one discovery
vehicle to obtain relevant and proportional information in a case. It is long standing and wellsettled that methods of discovery are complementary, rather than alternative or exclusive. See
Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL 553308, at *8 (D.N.M.
Feb. 9, 2010); Stonybrook Tenants Ass'n, Inc. v. Alpert, 29 F.R.D. 165, 167 (D. Conn. 1961).
Indeed, the Rules make clear that “the methods of discovery may be used in any sequence.” Fed.
R. Civ. P. 26(d)(3). These complimentary methods are important to the country’s adversarial
system, in that they allow parties to develop the facts surrounding a matter in a “quest for truth.”
See Fed. Deposit Ins. Corp. v. Daily, 973 F.2d 1525, 1529-30 (10th Cir.1991). In light of these
principles, this court is not persuaded that the affidavit is an adequate substitute for deposition
testimony from Mr. Anderson. While the CCRD insists that the information that Mr. Yater seeks
is available either by Mr. Anderson’s deposition or the CCRD record already produced, the
CCRD does not point to specific evidence that responds to Mr. Yater’s topics with particularity.
For instance, the CCRD fails to point to any writings or recordings of Mr. Anderson’s
conversations with the respective Parties, or written scripts as to the advisements by Mr.
Anderson to the Parties about the conciliation process. Mr. Anderson’s affidavit does not detail

15

the procedures he personally utilized in attempting to settle cases that he was investigating, nor
does it provide any particular facts as to what he generally told parties. And the CCRD’s
responses contained in the Reply are, at their core, attorney argument, not assertions or
admissions of fact. Even Mr. Anderson’s statements regarding his mediation training provide
only the most basic information that may or may not be sufficient to make a determination as to
whether Mr. Anderson qualifies as a “trained” mediator under the Colorado Dispute Resolution
Act.

There is also no indication that the CCRD has produced documents reflecting Mr.

Anderson’s job responsibilities between July 28, 2014 and September 29, 2015. And to the
extent Mr. Anderson attests that he has no independent memory of the Yater investigation, a
deposition provides an opportunity to attempt to refresh Mr. Anderson’s recollection.
The most compelling argument, and one this court is particularly mindful of, is the
“serious and legitimate concern” that public agency resources would be commandeered by
private litigants, and that allowing the deposition of a CCRD investigator would have an
unintended ripple effect outside this litigation. [#30 at 9-10; #37 at 8-9]. As discussed above,
when a subpoena is served on a non-party, the burden is higher. But even with this higher
burden, and even considering the potential impact upon the limited resources of a government
agency, the issue of whether conciliation efforts undertaken by a CCRD investigator are covered
by the Colorado Dispute Resolution Act is significant, and indeed potentially dispositive of this
litigation. Even if Mr. Yater and representatives of Defendant can testify as to what occurred,
Mr. Anderson is an important neutral party who can provide information regarding his
background, training, and the custom and practices of the CCRD’s conciliation efforts. This
court is also not persuaded that Mr. Yater can discover this information from other sources, And
while this court is sensitive to the demands upon a public agency and its ability to function, the

16

court is not struck that the present issue is one that litigants will repeatedly raise in other
lawsuits. Indeed, the briefs do not cite, and the court could not independently find, any cases
that analyze whether efforts made through a CCRD investigation constitute “mediation” under
the Colorado Dispute Resolution Act. This court is inclined to believe that once the issue is
decided, either by the Honorable Lewis T. Babcock or by another judicial officer, it likely will
not be re-litigated again and again. Nevertheless, in recognition of the burdens a deposition may
place on a public employee, the court will limit the deposition to two hours, to be completed in
the next thirty days.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1)

Motion to Quash Subpoena to Testify at a Deposition in a Civil Action filed by

third-party the Colorado Civil Rights Division [#30] is GRANTED IN PART and DENIED IN
PART; and
(2)

Plaintiff is permitted to take a deposition of Samuel Anderson, CCRD

Investigator, of no more than two hours no later than March 2, 2018, limited to the factual
topics set forth in Plaintiff’s Opposition to the Motion to Quash [#34 at 3-4] except topics
excluded by this Order.

DATED: February 8, 2018

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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