Medina v. Samuels et al
ORDER on Motion to Quash. The Nonparty CDOC's Motion to Quash Plaintiff's Subpoena to Produce Documents [Doc. 159 ] is GRANTED IN PART and DENIED IN PART. The CDOC shall PRODUCE the consultation requests for oncology made by Defendant Je nnifer Samuels dated May 2, 2018; December 20, 2017; and November 1, 2017 as reflected at [Doc 165-2 at 8, 10, 11] no later than January 14, 2022, redacted for personally identifying health information and/or information designated under the Prot ective Order [Doc. 78] if appropriate. All other discovery REMAINS CLOSED and all deadlines, including the forthcoming dispositive motions deadline, REMAIN SET. The Second Subpoena [Doc. 159-1] is hereby QUASHED for all other purposes, by Magistrate Judge Nina Y. Wang on 1/7/2022.(agarc, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-01443-NYW
THE ESTATE OF GABRIELLE MEDINA,
JENNIFER ROSS SAMUELS,
RANDOLPH MAUL, and
ORDER ON MOTION TO QUASH
Magistrate Judge Nina Y. Wang
This matter is before the court pursuant to the Nonparty CDOC’s Motion to Quash
Plaintiff’s Subpoena to Produce Documents (the “Motion” or “Motion to Quash”) [Doc. 159] filed
on December 2, 2021 by non-party Colorado Department of Corrections (“CDOC”). The court
considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes
dated September 1, 2020. [Doc. 55]. After review of the Motion and associated briefing, the entire
docket, and the applicable law, the Motion to Quash is GRANTED IN PART and DENIED IN
Gabrielle Medina (“Ms. Medina”) passed away on October 13, 2019 due to complications
from cervical cancer. [Doc. 1 at ¶ 170]. Prior to her death, Ms. Medina was in the custody of the
CDOC, and while incarcerated, she discussed her cancer diagnosis with and requested treatment
from, inter alia, Defendant Jennifer Samuels. [Id. at ¶¶ 8, 46, 51]. On May 20, 2020, the Estate
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of Gabrielle Medina (“Plaintiff” or the “Estate”) initiated this civil action, asserting two claims
pursuant to 42 U.S.C. § 1983: (1) deliberate indifference to Ms. Medina’s serious medical needs
in violation of the Eighth and Fourteenth Amendments, for which Defendant Samuels was named
as a Defendant; and (2) a deliberate indifference claim based on supervisory liability, which is not
raised against Defendant Samuels. See generally [id.]. The Estate did not name the CDOC as a
defendant in this matter. See [id.]. On December 17, 2020, this court dismissed a number of
Defendants from this case upon ruling on three then-pending Motions to Dismiss. See [Doc. 97 at
31-32]. Defendant Samuels did not seek dismissal of Plaintiff’s deliberate indifference claim
against her, and this claim therefore remains. See [id.]. Relevant here, Plaintiff claims that
Defendant Samuels’s (and other Defendants’) delay in obtaining cancer treatment for Ms. Medina
was unconstitutionally deliberately indifferent, in violation of Ms. Medina’s Eighth Amendment
rights. See, e.g., [Doc. 1 at ¶¶ 199-201, 205].
As part of discovery in this case, the Estate served non-party CDOC with a subpoena duces
tecum on October 1, 2021 (the “First Subpoena”). [Doc. 128 at 1; Doc. 128-1]. The First
Subpoena requested that the CDOC produce, inter alia: (1) medical records of any and all patients
seen by Defendant Samuels in which the patient had or was believed to have cancer which the
CDOC has in its possession, including “any and all records of other providers;” (2) any and all
consultation requests and appointment records related to those patients; and (3) any and all CDOC
communications regarding those patients, consultation requests, and appointment records. [Doc.
128-1 at 4]. On October 15, 2021, the CDOC filed a motion to quash the First Subpoena (the
“First Motion to Quash”), arguing that these three requests were improper because they sought
privileged documents, were not relevant or proportional to the needs of the case, and were unduly
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burdensome to the CDOC. [Doc. 128 at 2]. This court granted the First Motion to Quash on
November 5, 2021. See [Doc. 137]. The court concluded that the documents sought in the First
Subpoena—namely, non-party medical records—were not relevant to Plaintiff’s claims, which
will require a jury to determine whether Defendant Samuels was deliberately indifferent to Ms.
Medina’s medical needs, not the medical needs of any other inmate. [Id. at 9-10]. Moreover, the
court found that there are “other, less burdensome means by which Plaintiff may obtain
information concerning Defendant Samuels’s ‘knowledge of the processes involved in cancer
treatment and/or coordination, the need for urgency and/or timeliness, and the risks/dangers
involved in failing to promptly act, as well as a lack of mistake regarding what a timely
consultation with and/or referral to oncologists looks like.’” [Id. at 12 (quoting Doc. 130 at 7)].
The court proffered that Plaintiff could obtain the information sought through “narrowly drawn
written discovery requests or seeking kites from the CDOC which have raised issues concerning
the medical treatment from Defendant Samuels.” [Id. at 13]. Thus, the court concluded that the
scope of Plaintiff’s requests in the First Subpoena exceeded the bounds of permissible discovery.
On December 2, 2021, the CDOC filed the instant Motion to Quash. [Doc. 159]. The
CDOC represents that, on November 16, 2021, Plaintiff served a second subpoena duces tecum
(the “Second Subpoena”) [Doc. 159-1] on the CDOC containing the following requests:
1. All notes or other entries by Jennifer Ross (a.k.a. Jennifer Samuels) between
2014 and the present regarding her consultation requests or referrals to outside
providers submitted or considered for the purpose of cancer diagnosis,
evaluation, and/or treatment.
2. All notes or other entries by Jennifer Ross/Samuel [sic] between 2014 and the
present reflecting her knowledge and conduct related to any coordination of
care between her/other DOC providers and outside providers for the
evaluation/diagnosis/treatment of cancer.
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3. All notes or other entries by Jennifer Ross/Samuel [sic] between 2014 and the
present reflecting her knowledge and conduct related to the timeliness or
necessity of appointments for cancer evaluation/diagnosis/treatment.
4. All notes or other entries by Jennifer Ross/Samuel [sic] between 2014 and the
present reflecting her knowledge and conduct in requesting records from
previous providers for the purpose of cancer evaluation/diagnosis/treatment
5. Any and all data/entries between 2014 and the present in which Jennifer
Ross/Samuels was the “ordering provider” for consultation requests/referrals
concerning cancer evaluation/diagnosis/treatment. The data/entries sought are
limited to entries reflecting Jennifer Ross/Samuels as the “ordering provider”
and signatory, the date of the entry, and her entries regarding: the “request
type,” the “service type,” the “location” and/or “specialist” options selected, the
“presumed diagnosis,” the “priority” requested, the “procedure requested,” and
any other comments, notes, or entries concerning Item #1.
6. Any and all communications regarding the information identified in the
foregoing Items #1-#5.
[Doc. 159 at 2; Doc. 159-1 at 4].
In its Motion to Quash, the CDOC argues that “[w]hile these requests are worded
differently, Plaintiff seeks the same records previously sought in the [First Subpoena].” [Doc. 159
at 3]. The CDOC moves this court to quash the Second Subpoena on the grounds that the Second
Subpoena requests (1) are not relevant or proportional to the needs of this case; (2) are unduly
burdensome to the CDOC; and (3) seek records that are protected by state and federal law. [Id. at
5-11]. This court ordered Plaintiff to respond to the Motion to Quash on or before December 9,
2021, and specifically instructed Plaintiff to “address the differences between its present subpoena
requests and those at issue in the prior Motion to Quash [Doc. 128] and the concerns raised in this
court’s . . . Order on Motion to Quash [Doc. 137].” [Doc. 160].
Plaintiff responded to the Motion to Quash, arguing that (1) its Second Subpoena requests
are relevant and proportional to the needs of this case; (2) its requests are not unduly burdensome
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to the CDOC; and (3) the records sought are not protected by law and, in any event, any privacy
concerns can be addressed by redactions. [Doc. 162 at 3-13]. While the Estate generally asserts
arguments as to why the documents requested in the Second Subpoena are relevant, the Estate does
not specifically address the differences between the documents requested in the present Subpoena
and the First Subpoena, as ordered by the court. See generally [id.]. Nevertheless, Plaintiff
disputed the CDOC’s alleged burden in responding to the Second Subpoena. As a result, this court
ordered the CDOC to file a Reply, supported by admissible evidence, to address Plaintiff’s
contentions. [Doc. 164].
The CDOC filed its Reply on December 27, 2021. [Doc. 165]. In support of the Reply,
the CDOC offers the declaration of Theresa Lynn Hiller, the CDOC’s Clinical Services Support
Manager, who acts as a records custodian for the CDOC. [Doc. 165-1 at ¶¶ 1-2]. Ms. Hiller states
that prior to 2017, the CDOC predominantly maintained its medical records by patient, in paper
format, without any “way to sort or filter such records by a specific provider.” [Id. at ¶ 5]. In
order to find documents related to the 5-10 individuals who Defendant Samuels treated for cancer,
the CDOC states it must “(1) know every inmate that was housed in the facilities where Ms. Ross
worked during the relevant timeframe, (2) manually search the medical records of those inmates
to see whether the inmates were seen by Ms. Ross for the purpose of cancer diagnosis, evaluation,
and/or treatment, then (3) gather and redact the responsive records.” [Id.]. As of sometime in
2017, CDOC implemented a system called EOMIS to maintain medical records. [Id. at ¶ 6].
EOMIS is searchable, and a search for Defendant Ross’s consultation requests for offside
treatment yielded 305 records. [Id. at ¶ 10; Doc. 165-2]. Ms. Hiller then explains that from the
search results, other than the ones that were specifically for oncology, it is unclear whether such
requests are submitted for the purpose of cancer diagnosis, evaluation, and/or treatment. [Doc.
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165-2 at ¶ 10]. Finally, the CDOC reiterates its arguments that responding to the Second Subpoena
is extremely burdensome. [Doc. 165 at 7]. Fact discovery in this matter closed on December 13,
2021, and the deadline for filing dispositive motions is set for January 26, 2022. [Doc. 120]; [Doc.
155 at 6].
The court considers the Parties’ arguments below.
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. Relevant evidence is “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. Moreover, 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’ 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.
In addition, Rule 26(b)(2) governs limitations on the extent of discovery. Under this Rule,
the court, “[o]n motion or on its own, . . . must limit the frequency or extent of discovery otherwise
allowed” if it determines that “the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less burdensome, or less
Fed. R. Civ. P. 26(b)(2)(C)(i).
“This rule incorporates the Rule 26(b)(1)
proportionality standard, which the court should always consider in resolving discovery disputes.”
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Atl. Specialty Ins. Co. v. Midwest Crane Repair, LLC, No. 20-4013-JAR-ADM, 2020 WL
5118067, at *5 (D. Kan. Aug. 31, 2020).
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). “When the discovery sought appears relevant, the party
resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the
requested discovery (1) does not come within the scope of relevance as defined under Fed. R. Civ.
P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery
would outweigh the ordinary presumption in favor of broad disclosure.” Simpson v. Univ. of Colo.,
220 F.R.D. 354, 350 (D. Colo. 2004) (citations omitted). Conversely, “when a request for
discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking
the discovery has the burden to show the relevancy of the request.” Cunningham v. Standard Fire
Ins. Co., No. 07-cv-02538-REB-KLM, 2008 WL 2668301, at *1 (D. Colo. July 1, 2008). 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).
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. Rice v. United States,
164 F.R.D. 556, 556-57 (N.D. Okla. 1995). Accordingly, a Rule 45 subpoena must 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). On a timely motion, the court must quash or modify a subpoena
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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).
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, so 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) (unpublished). The CDOC argues that the Subpoena should be quashed
because the requested documents not relevant or proportional to the needs of this case, would be
unduly burdensome for the CDOC to produce, and are protected by state and federal law. [Doc.
159]. The court considers these arguments below.
Relevancy and Proportionality
Relying on this court’s order on the First Motion to Quash, see [Doc. 159 at 5-7], the CDOC
argues that the requested records are not relevant or proportional to the needs of this case because
the “medical records of dozens or hundreds of other inmates, who are not parties to the case, are
not relevant to whether Defendant Samuels was deliberately indifferent to Ms. Medina’s serious
medical needs.” [Id. at 5]. Moreover, the CDOC asserts that even if the record search would
produce relevant records, it is not proportional to the needs of the case because producing
responsive records would be “extremely labor intensive on the part of CDOC, all for information
that would be, at best, minimally relevant.” [Id. at 7]. In response, Plaintiff argues that its requests
are narrowly tailored because they seek “only documentation and notes reflecting [Defendant
Samuels’s] knowledge and actions specifically regarding her knowledge and actions of
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referrals/appointments for cancer patients, the records needed, and communications with outside
providers about cancer care,” but do not seek patient medical records that are unrelated to
Defendant Samuels’s knowledge of cancer care. [Doc. 162 at 3-4].
More specifically, Plaintiff asserts that referrals to outside medical providers, which are
documented in “consultation requests,” are “certain” to contain information pertaining to
Defendant Samuels’s knowledge of the appropriate providers for referral and the urgency of such
referrals for cancer treatment. [Id. at 5]. Moreover, Plaintiff references Defendant Samuels’s notes
related to Ms. Medina’s medical care—in particular, notes in which Defendant Samuels noted on
August 20, 2018 that Ms. Medina’s options were to “do nothing” or “provider will submit a consult
to CHP for an appointment at [Rocky Mountain Cancer Center (“RMCC”)]” 1 and that “likely
trajectory for care” was “[Denver Health] for surgery, RMCC for chemo/radiation if needed,” see
[Doc. 162-5 at 2, 4]—and asserts that Defendant Samuels “likely made such notes for her other 510 patients that reflect her knowledge and actions regarding getting cancer treatment for them.”
[Id. at 5-6].
Relevancy Standards. Evidence is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence and the fact is of consequence in determining
the action. Fed. R. Evid. 401. The court “broadly construes relevancy, and a request for discovery
should be considered relevant if it is possible that the information sought may be relevant to the
claim or defense of any party.” Church v. Dana Kepner Co., No. 11-cv-02632-CMA-MEH, 2013
The Estate alleges in its Complaint that the Denver Women’s Correctional Facility, wherein Ms.
Medina was housed, does not have sufficient resources to evaluate or treat cancer patients, and
inmates must be treated for cancer at RMCC or by another outside specialist. [Doc. 1 at ¶ 28].
The Estate further alleges that Denver Health could not provide cancer treatment to CDOC
inmates, including Ms. Medina, because “Denver Health does not have a contract with CDOC for
cancer treatment.” [Id. at ¶ 128].
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WL 24437, at *4 (D. Colo. Jan. 2, 2013). But “when a request for discovery is overly broad on its
face or when relevancy is not readily apparent, the party seeking the discovery has the burden to
show the relevancy of the request.” Cunningham, 2008 WL 2668301, at *1. Here, the court does
not find that the relevancy of “all notes or other entries” by Defendant Samuels “between 2014
and the present” related to her consultation requests, outside-provider referrals, coordination of
cancer care, and records requests related to the care of non-party inmates and communications
regarding the aforementioned items is readily apparent on the face of the Subpoena. Thus, it is
Plaintiff’s burden to demonstrate the relevancy of the requested materials.
Subjective Deliberate Indifference.
Plaintiff argues that the requested discovery is
relevant to the subjective inquiry necessary to succeed on its Eighth Amendment deliberate
indifference claim against Defendant Samuels. [Doc. 162 at 4 (“This information is relevant to
show Defendant Samuels[’] knowledge from her treatment of inmates with cancer, her knowledge
of the processes involved, and lack of mistake regarding her responsibilities to timely obtain
records and schedule patients to outside providers.”)]. As set forth above, the Estate alleges in its
Complaint that Defendant Samuels was unconstitutionally indifferent to Ms. Medina’s serious
medical needs because Defendant Samuels knew that Ms. Medina had cancer and refused to refer
her to an oncologist who could treat her and/or otherwise ignored Ms. Medina’s worsening
symptoms. See, e.g., [Doc. 1 at ¶¶ 52-53, 56-57, 65-66, 200-01]. In its Response to the Second
Motion to Quash, the Estate argues that it “seeks records regarding the treatment of other cancer
patients by Defendant Samuels in order to assess the knowledge, opportunity, and lack of mistakes
of Defendant Samuels in treating Ms. Medina.” [Doc. 162 at 7]. Specifically, Plaintiff posits that
the requested documents would reflect that Defendant Samuels “would likely have encountered
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information indicating she must refer cancer patients to RMCC (and not Denver Health).” [Doc.
162 at 6].
To succeed on an Eighth Amendment deliberate indifference claim, the plaintiff must
establish that the defendant was deliberately indifferent to the plaintiff’s serious medical needs.
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). To make such a showing, the plaintiff must
demonstrate that (1) the medical need was sufficiently objectively serious (the “objective prong”);
and (2) the official knew of and disregarded an excessive risk to the plaintiff’s health or safety (the
“subjective prong”). Id. “Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. 825,
842 (1994) (citation omitted).
Plaintiff’s Requested Records. In its Order on the First Motion to Quash, the court
concluded that the medical records of non-party cancer patients are not relevant to the subjective
prong of Plaintiff’s Eighth Amendment claim against Defendant Samuels because Defendant
Samuels’s treatment of other inmates did not bear on whether Defendant Samuels was deliberately
indifferent in Ms. Medina’s case. [Doc. 137 at 9-10]. In so doing, the court cited a long line of
cases finding that such non-party records are not relevant in this context. See [id. at 10-11]; see
also Coats v. Chaudhri, No. 1:13-cv-02032-BAM (PC), 2016 WL 1046233, at *4 (E.D. Cal. Mar.
16, 2016); Awe v. Clarke, No. 7:13-cv-00143, 2014 WL 948880, at *2 n.2 (W.D. Va. Mar. 11,
2014); Dugan v. Middlebrooks, No. 5:10-cv-367-OC-10PRL, 2014 WL 3894299, at *3 (M.D. Fla.
Aug. 8, 2014); Thomas v. Loftin, No. 3:08-cv-101MJR, 2010 WL 234998, at *1 (S.D. Ill. Jan. 15,
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2010); Oliver v. Calderon, No. 6:17-cv-1792-ORL-31TBS, 2021 WL 4528127, at *3 (M.D. Fla.
Feb. 24, 2021).
This court understands that Plaintiff seeks to glean very particular information from the
requested documents, i.e., the knowledge that Defendant Samuels had, based on her prior 5 to 10
cancer cases, that she had to act quickly when obtaining medical records and that she had to refer
cancer patients to RMCC instead of Denver Health. This court agrees with the general proposition
that such information may be relevant to Defendant Samuels’s knowledge in treating Ms. Medina.
Nevertheless, as drafted, the topics included in the Second Subpoena are not proportional to the
needs of this case when 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.” Fed. R. Civ. P. 26(b)(1).
First, there is no doubt that the issues at stake in this action, i.e., the care of an incarcerated
person and the allegations that Defendants were deliberately indifferent to an incarcerated person’s
medical needs, are important not only to Plaintiff, but to incarcerated individuals and to the State.
But this court finds that the burden of full compliance with the Second Subpoena is outweighed
by the attendant burden. First, the court finds that the Estate has not sufficiently articulated a
material difference between the records requested in the First Subpoena and those requested in the
instant Subpoena—despite the express instruction by the court. [Doc. 160]. Second, while
Plaintiff suggests, and the court agrees, that the Second Subpoena requests appear to be generally
narrower in scope, see [Doc. 162 at 3-4 (asserting that the Subpoena “does not seek the entirety of
patient medical records or records that are unrelated to Defendant Samuels[’s] knowledge of
cancer care”)], the Estate nevertheless concedes that the records it seeks are, in fact, portions of
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non-party patient medical files, see [id. at 5, 11-12], and as such, contain information wholly
unrelated to issue of Defendant Samuels’s subjective knowledge of whether Denver Health, versus
another facility, was an appropriate referral for Ms. Medina. And while the present Subpoena
requests may be narrower than the previous, the Second Subpoena nevertheless seeks a broad range
of documents: all notes or other entries by Defendant Samuels, from 2014 to the present, that
concern the following with respect to inmate cancer evaluation, diagnosis, and treatment:
(1) consultation requests or referrals to outside providers; (2) the coordination of care with other
CDOC providers or outside providers; (3) the timeliness or necessity of appointments; and
(4) requesting records or submitting consultation requests or referrals; as well as (5) “all data and
entries” in which Defendant Samuels was the ordering provider for consultation requests or
referrals; and (6) any and all communications regarding the following. See [Doc. 159-1 at 4].
Moreover, the court finds that Plaintiff’s attempts to narrow its previous requests in the
First Subpoena do not render the documents subject to its present requests sufficiently proportional
to this matter. For example, the Estate argues that the records it seeks are relevant to determining
Defendant Samuels’s knowledge of appropriate providers for referral and the urgency of such
referrals, so as to show “the subjective awareness of Defendant Samuels at the time Ms. Medina
was under her care.” [Doc. 162 at 5, 6 (emphasis added)]. But Plaintiff alleges that Ms. Medina
was under Defendant Samuels’s care in 2018 and 2019, see, e.g., [Doc. 1 at ¶¶ 51, 55, 60, 65, 78,
102], and does not explain in its Motion why notes or other records after 2019 would reflect
Defendant Samuels’s knowledge at the time she was actually treating Ms. Medina. See generally
[Doc. 162]; cf. Phillips v. Ottey, No. CV DKC 14-0980, 2016 WL 6582647, at *5 (D. Md. Nov. 7,
2016) (where requested medical records did not concern the treatment at issue in the plaintiff’s
complaint, they were not relevant to the case or within the scope of discovery). While Plaintiff
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now frames its request as those records “reflecting [Defendant Samuels’s] knowledge and
conduct” related to cancer treatment, diagnosis, evaluations, referrals, record requests, and
consultations, [Doc. 159-1 at 4], as the CDOC argues in its Reply, seemingly all notes, entries,
and records created by Defendant Samuels would “reflect her knowledge and conduct;” thus,
this attempt at limitation appears to be inconsequential.
The Second Subpoena still requests, similar to the First Subpoena, medical records of nonparty inmates, and the Estate cites no case law finding that a provider’s notes or entries related to
the care of other patients are relevant to the determination of whether that provider was deliberately
indifferent in the care of a separate specific patient, even to show the defendant’s knowledge at the
time the defendant treated the patient. See generally [id.]. Indeed, as set forth above, the consensus
view is that such outside-patient materials are not relevant to a party’s Eighth Amendment claim.
See [Doc. 137 at 10-11]. Further, it does not appear that Plaintiff addresses the relative access to
relevant information regarding Defendant Samuels’s knowledge by seeking this information
through any other mechanism, such as requesting production of policies, procedures, directives,
manuals, provider directories, or training materials regarding referrals to outside providers from
the CDOC. See [Doc. 128-1; Doc. 159-1]. Nor does it appear that Plaintiff subpoenaed RMCC,
which would also have records of referrals from the CDOC.
Accordingly, the court finds that the Estate has not met its burden of demonstrating that
the records as requested in the Second Subpoena and the communications related thereto are
proportional to the needs of this case.
Rule 26 Considerations
In its earlier Order, the court found that the First Subpoena requests exceeded the bounds
of Rule 26(b)(2)(C), which provides that a court must, “[o]n motion or on its own,” limit the extent
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of discovery if the court finds that the discovery sought “can be obtained from some other source
that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). The
court found that there were other, less burdensome means, such as “narrowly drawn written
discovery requests or seeking kites from the CDOC which have raised issues concerning the
medical treatment from Defendant Samuels,” through which Plaintiff could obtain the information
sought, and determined that quashing the Subpoena in part was appropriate under Rule
26(b)(2)(C). [Doc. 137 at 12-13].
The court generally concludes the same here. First, Plaintiff does not argue or explain why
the less burdensome means suggested by the court, or any other less onerous discovery requests,
would be insufficient to obtain the information it seeks, see generally [Doc. 162], despite this court
specifically directing Plaintiff to address the concerns raised in this court’s Order on the Motion
to Quash. [Doc. 160]. Moreover, in its Response, the Estate references and attaches some of
Defendant Samuels’s notes related to Ms. Medina’s medical care, which show, inter alia, that on
August 20, 2018, Defendant Samuels noted that Ms. Medina’s options were to “do nothing” or for
Defendant Samuels to submit a consult for an appointment at RMCC, [Doc. 162-5 at 4], and that
Ms. Medina’s likely trajectory for care was “RMCC for chemo/radiation if needed.” [Id. at 2].
But there is no explanation as to how these documents are suggestive that Defendant Samuels
ignored the fact that the proper referral would be to RMCC, rather than Denver Health. Further,
the notes state that Defendant Samuels would submit a consult for an appointment at RMCC “once
. . . records received or within a month if no records received.” [Id. at 4]. The Estate does not
explain why these notes are insufficient to demonstrate Defendant Samuels’s knowledge prior to
October 2018 that, for example, cancer patients housed in the CDOC were to be treated at RMCC.
Case 1:20-cv-01443-NYW Document 166 Filed 01/07/22 USDC Colorado Page 16 of 17
See generally [Doc. 162]. 2 Plaintiff has thus not “convince[d] the Court that [it cannot] obtain the
information [it seeks] from another source,” Denver Homeless Out Loud v. Denver, No. 20-cv02985-WJM-SKC, 2020 WL 7230641, *3 (D. Colo. Dec. 8, 2020) (granting motion to quash),
particularly where the subjective prong of a deliberate indifference claim may be demonstrated by
circumstantial evidence, including the obviousness or seriousness of the risk involved, Farmer,
511 U.S. at 842, or a violation of DOC protocols. Mata, 427 F.3d at 758. Finally, despite
challenging the burden articulated by the CDOC, Plaintiff does not address either the
For these reasons, the court finds no reason to depart generally from its earlier conclusion
that broad requests for non-party medical records, even if narrowed to “[a]ll notes or other entries
by [Defendant Samuels] between 2014 and the present” and to cancer-specific treatment, is the
least burdensome means through which Plaintiff may obtain the information it seeks. See Franklin
v. United States, No. 12-1167 KBM/LFG, 2013 WL 11336864, at *8 (D.N.M. Aug. 28, 2013)
(sustaining objections to request for production where the request was “exceedingly broad” and
where the information sought could “be obtained from other sources that [were] less
However, this court notes that the CDOC’s search yielded three instances before October
13, 2019 where Defendant Samuels referred a patient to oncology: (1) May 2, 2018 [Doc. 165-2
at 8]; (2) December 20, 2017 [id. at 10]; and (3) November 1, 2017 [id. at 11]. To the extent that
these consultation requests might yield information regarding Defendant Samuels’s knowledge
Moreover, as noted by this court in its earlier Order, [Doc. 137 at 13 n.6], Plaintiff’s red-lined
proposed Amended Complaint appears to demonstrate that Plaintiff has sought and obtained
information related to Defendant Samuels’s knowledge through discovery. See, e.g., [Doc. 131-2
at ¶¶ 45-47, 104, 213, 239-40, 254-55, 292, 296].
Based on these rulings, the court does not pass on the CDOC’s argument that the records
requested are protected by state and federal law. See [Doc. 159 at 11].
Case 1:20-cv-01443-NYW Document 166 Filed 01/07/22 USDC Colorado Page 17 of 17
with respect to applicable procedures and/or referral facilities prior to her treatment of Ms. Medina,
this court concludes that the limited production of these three consultation reports alone
should be made by the CDOC no later than January 14, 2022, redacted of personally
identifying health information and/or information designated under the Protective Order
[Doc. 78] if appropriate.
For the reasons set forth herein, IT IS ORDERED that:
The Nonparty CDOC’s Motion to Quash Plaintiff’s Subpoena to Produce
Documents [Doc. 159] is GRANTED IN PART and DENIED IN PART;
The CDOC shall PRODUCE the consultation requests for oncology made by
Defendant Jennifer Samuels dated May 2, 2018; December 20, 2017; and
November 1, 2017 as reflected at [Doc 165-2 at 8, 10, 11] no later than January
14, 2022, redacted for personally identifying health information and/or information
designated under the Protective Order [Doc. 78] if appropriate;
All other discovery REMAINS CLOSED and all deadlines, including the
forthcoming dispositive motions deadline, REMAIN SET; and
The Second Subpoena [Doc. 159-1] is hereby QUASHED for all other purposes.
DATED: January 7, 2022
BY THE COURT:
Nina Y. Wang
United States Magistrate Judge
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