Opinion
Civil Action 1:19-cv-02613-PAB-NYW
09-23-2021
SPENCER ERICKSON, Plaintiff, v. CITY OF LAKEWOOD, COLORADO; RYAN O'HAYRE, Lakewood Police Officer, in his individual capacity; EDWARD BAGGS, Lakewood Police Officer, in his individual capacity; JUSTIN RICHARDS, Lakewood Police Officer, in his individual capacity; and MATTHEW CHRISTENSEN, Lakewood Police Officer, in his individual capacity, Defendants.
Adam Frank Melissa Roth THE FRANK LAW OFFICE LLC ATTORNEYS FOR PLAINTIFF Mark S. Ratner Matthew J. Hegarty HALL & EVANS, L.L.C. ATTORNEYS FOR DEFENDANTS
Adam Frank Melissa Roth THE FRANK LAW OFFICE LLC ATTORNEYS FOR PLAINTIFF
Mark S. Ratner Matthew J. Hegarty HALL & EVANS, L.L.C. ATTORNEYS FOR DEFENDANTS
JOINT STATUS REPORT REGARDING DISCOVERY DISPUTE CONCERNING PLAINTIFF'S AMENDED NOTICE OF RULE 30(B)(6) DEPOSITION OF DEFENDANT CITY OF LAKEWOOD, COLORADO
Plaintiff Spencer Erickson and Defendant City of Lakewood, Colorado (“City”), through their respective counsel of record below, and pursuant to discovery dispute procedures in NYW Civ. Prac. Std. 37.1, together submit to the Court this Joint Status Report Regarding Discovery Dispute Concerning Plaintiff's Amended Notice of Rule 30(b)(6) Deposition of Defendant City of Lakewood, Colorado, stating as follows:
I. OBJECT OF DISPUTE
On July 29, 2021, Plaintiff served the City with a Rule 30(b)(6) notice, delineating 29 topics for the City's Rule 30(b)(6) deposition. After counsel agreed on a date for the 30(b)(6) deposition and a method of taking the deposition, on August 26, 2021, Plaintiff served the City with an Amended Rule 30(b)(6) Notice. [Exh. A]. The amended notice addressed the same topics as the original notice; the only changes were to add a date and change the method of taking the deposition to video.
The parties dispute whether Topic 29 of the Notice is a proper Rule 30(b)(6) topic. Topic 29 states: “The City of Lakewood's justification for the denial of any allegations in the Third Amended Complaint from paragraph 72 through 140, inclusive of those two paragraphs”. After conferral, Plaintiff limited this Topic to seeking a designee to testify concerning the City's denial, denial based on lack of knowledge, or partial denial of paragraphs 72, 76, 83-85, 89-90, 93-94, 97-100, 103-105, 111, 113, 116117, 129, and 135-138 of the Third Amended Complaint. [See Exh. C (Third Am. Compl.); Exh. D (City's Answer to Third Am. Compl.)]. Plaintiff asserts that Topic 29, as limited through conferral, is a proper Rule 30(b)(6) topic. The City disagrees.
II. PARTIES' POSITIONS AND SUPPORTING AUTHORITY
The City's Position
LAW: Rule 30(b)(6) deposition topics are irrelevant and impermissible where they seek an entity's subjective understanding of, or legal conclusions as to, any legal matter implicated by the topics. E.g., Great N. Ins. Co. v. NGL Warehouse, LLC, 2017 U.S. Dist. LEXIS 6137 (D. Colo. Jan. 17, 2017); Century Sur. Co. v. Smith, 2015 U.S. Dist. LEXIS 56530, at *16-17 (D. Colo. Jan. 21, 2015). And if Rule 30(b)(6) topics “might” seek legal opinions or privileged information, particularly that which may reveal defense strategies or work product, they are improper and should be stricken or narrowed by the Court. E.g., Int'l Bhd. of Teamsters, Airline Div. v. Frontier Airlines, Inc., 2013 U.S. Dist. LEXIS 22986, at *15 (D. Colo. Feb. 19, 2013) (“It is no secret that ‘questioning of a corporate representative pursuant to Rule 30(b)(6) about the facts underlying allegations in the pleadings may present a particular problem verging on taking the deposition of counsel.'”); Berwick v. Hartford Fire Ins. Co., 2012 U.S. Dist. LEXIS 21747, at *14 (D. Colo. Feb. 21, 2012); Townsel v. Butler, 2009 U.S. Dist. LEXIS 24735, at 7-8 (D. Colo. Mar. 13, 2009); T&H Landscaping, LLC. v. Colo. Structures Inc., 2007 U.S. Dist. LEXIS 63495, at *4 (D. Colo. Aug. 28, 2007) (“Plaintiffs cannot [obtain] Defendant's legal positions and arguments through this [30(b)(6)] deposition.”). Relatedly, if a noticed Rule 30(b)(6) deposition topic will invade the corporate defendant's work product, the topic is improper and should be stricken, particularly because such topics essentially amount to an improper attempt to depose opposing counsel. See SEC v. Goldstone, 301 F.R.D. 593, 664 (D.N.M. 2014) (granting protective order against Rule 30(b)(6) deposition on this basis); SEC v. Nacchio, 614 F.Supp.2d 1164, 1175-78 (D. Colo. 2009) (adopting grant of motion to quash 30(b)(6) deposition which sought work product).
ANALYSIS: Even in the form by which Plaintiff attempted to limit the scope of Topic 29, the Court still should order the City need not produce a 30(b)(6) designee to testify concerning Topic 29, clearly a contention or “blockbuster” topic, on the following grounds: it still is oppressive and imposes an undue burden on the City in that it would compel the City to expend significant resources to properly educate a corporate representative to extemporaneously and yet competently, reasonably comprehensively, and exhaustively detail all grounds of support for the City's positions as to the 27 paragraphs of the Third Amended Complaint on which Plaintiff demands 30(b)(6) testimony despite a searching inquiry on 28 arguably sufficient topics already occurring, and should be stricken on that ground alone, see Lenox Maclaren Surgical Corp. v. Medtronic, Inc., 2015 U.S. Dist. LEXIS 75813, at *10-16 (D. Colo. June 11, 2015) (Wang, M.J.) (prohibiting Rule 30(b)(6) inquiry into contention or “blockbuster” topics); and it seeks the City's legal contentions and conclusions, and mental processes in consultation with its counsel, and should be stricken on that ground alone, see Gebremedhin v. Am. Family Mut. Ins. Co., 2015 U.S. Dist. LEXIS 91948, at *27 (D. Colo. July 15, 2015) (Wang, M.J.) (relying on case striking 30(b)(6) topics which were “impermissible attempt ... to inquire into the mental processes and strategies” of the party subject to Rule 30(b)(6) notice”); see also Goldstone, 301 F.R.D. at 664; Int'l Bhd. of Teamsters, 2013 U.S. Dist. LEXIS 22986, at *15.
A few examples will illustrate. (1) 3AC paragraph 76 baldly asserts, in part, “K-9 Finn inflicted deadly force on Mr. Erickson.” This is a misstatement of the law, because the Tenth Circuit categorically declined to hold “a police dog's ability to bite and hold to be sufficient to make [said dog]'s release, alone, an act of deadly force.” Thomson v. Salt Lake Cnty., 584 F.3d 1304 (10th Cir. 2009). The City's denial was proper, and the City need not be compelled to explain its denial of this paragraph. (2) 3AC paragraphs 89-90, 93-94, 97-100, and 103-105 allege things about the deposition testimony of nonparty City police agent Patrick Lone, and things about the City's K-9 training approach (some of which the City already admitted). Agent Lone's deposition testimony speaks for itself, and Plaintiff can obtain the City's perspective on any factual matter implicated by those paragraphs cited above from a City designee who testifies on one of the other 28- twenty-eight-30(b)(6) topics which very plainly encompass the City's K-9 training approach without needing to go through the point-scoring exercise of tripping up a City designee who may or may not be able to exhaustively explain, in the crucible of a 30(b)(6) deposition, why the City denied a given allegation in the Complaint in whole or in part. (3) 3AC paragraph 115 very plainly seeks a legal conclusion about Plaintiff's recitation of Graham v. Connor, 490 U.S. 386 (1989), and its progeny. The City's denial was proper, and the City need not be compelled to explain its denial of this paragraph.
Relatedly, the Court in Great N. Ins., 2017 U.S. Dist. LEXIS 6137, did make judgment calls as to whether Rule 30(b)(6) deposition testimony sought to be introduced at trial, e.g., if the question at issue “asks for a legal conclusion, ” the Court did not allow use of the question and 30(b)(6) testimony at trial. See id. at *5 (scrollable table of same). If the Court disallowed use of such testimony at trial on the back end, arguably no principle definitively bars the Court, as gatekeeper, on the front end from prohibiting improper lines of 30(b)(6) questioning, including those which seek legal conclusions.
Finally, in the Tenth Circuit, “the testimony of a Rule 30(b)(6) witness is merely an evidentiary admission, rather than a judicial admission, ” so the entity can correct, explain, or supplement such testimony, arguably at any point until and including trial. Vehicle Mkt. Research, Inc. v. Mitchell Int'l, Inc., 839 F.3d 1251, 1260-61 (10th Cir. 2016).
Mr. Erickson's Position
The City makes two objections to Topic 29: that it imposes an undue burden on the City, and that it seeks information protected by either the attorney-client or attorney work product privileges. The Court should overrule both objections.
The City's undue burden argument is meritless on its face. “The party objecting to discovery on the basis that it is unduly burdensome has the burden of proof.” Rehberg v. City of Pueblo, No. 10-cv-00261-LTB-KLM, 2011 U.S. Dist. LEXIS 58776, at *15 (D. Colo. June 2, 2011). “[A] party seeking protection based upon undue burden or expense must submit affidavits or otherwise explain in detail the nature and the extent of the claimed burden or expense.” Colo. Mills, LLC v. Phila. Indem. Ins. Co., No. 12-cv-01830-CMA-MEH, 2013 U.S. Dist. LEXIS 53467, at *15 (D. Colo. April 15, 2013). This entails demonstrating “not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discovery.” Id. The standard “can only be met by providing sufficient details or a compelling showing of undue burden to obviate the overwhelming preference for requiring that relevant discovery materials be exchanged.” Chevron Corp. v. Snaider, 78 F.Supp.3d 1327, 1341 (D. Colo. 2015). “General assertions of undue burden and expense are insufficient alone to foreclose discovery ....” Id. As the City has provided no evidence to support its claims of an undue burden despite long-established law requiring that they do so, the Court should reject the City's argument out of hand.
The City likely provides no support for its claim of an undue burden because it cannot. Topic 29 asks the City to provide a representative to answer why the City denied particular specific factual allegations in Mr. Erickson's operative complaint that are well-supported by the record. Presuming opposing counsel complied with Fed.R.Civ.P. 11(b)(4), each of the denials Mr. Erickson seeks to ask about was made because a representative of the City informed opposing counsel that the denials were warranted by facts known to the City. After all, though signed by counsel, the answer is the City's. See Fed. R. Civ P. 8(b)(1)(B) (any denial of an allegation in complaint is made by the party). Whoever gave this information to opposing counsel is the proper designee, and (again, presuming compliance with Fed.R.Civ.P. 11(b)(4)) that person has already done the research necessary to support the City's factual assertion. The burden on the City to produce and prepare a witness to answer Topic 29 is minimal. For this additional reason, the Court should overrule the City's undue burden argument.
The Court should also overrule the City's privilege argument because the vast majority of potential questions covered by Topic 29 are factual in nature. Any hypothetical questions where the potential answer would be protected by a privilege can be objected to and the privilege preserved just as in any other deposition. Gebremedhin v. Am. Family Mut. Ins. Co., No. 13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948, at *31 n.7 (D. Colo. July 15, 2015) (“To the extent Topics 3, 4, 5, 8, and 13 potentially implicate information subject to a valid claim of privilege or protection, the court finds that counsel . . . should be able without undue burden to preserve any such privilege or protection by interposing objections at deposition, when proper and well-founded.”).
For example, in paragraph 83 of the Third Amended Complaint, Mr. Erickson alleged that the TacDogs training method involves ten areas of training, which the City previously disclosed. See Exh. C, ¶ 83; Exh E. (TacDogs training material provided by City in discovery). On August 24, 2021, Lakewood denied that this is true. Exh. D, ¶ 83. It is entirely reasonable and discoverable for Mr. Erickson to find out why the City denied this and what facts the City knows that support the denial. See Lykins v. Certainteed Corp., No. 11-2133-JTM, 2012 U.S. Dist. LEXIS 115145, at *8 (D. Kan. Aug. 16, 2012) (“At the discovery stage of litigation, ‘[r]elevancy is broadly construed . . . and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action.”). In paragraphs 84, 85, 89, and 90, Mr. Erickson alleged that, as Agent Lone has testified, the TacDogs program involves training a K-9 handler how to deploy a K-9 but not when to do so. Exh. C, ¶¶ 84, 85, 89, 90. It is entirely reasonable and discoverable for Mr. Erickson to find out what facts the City purports to know that support this denial. Exh. D, ¶¶ 84, 85, 89, 90.
Similarly, in paragraph 72, Mr. Erickson alleged that Lakewood has trained its K-9s to be “bite and hold” K-9s and gave that term a definition. Exh. C, ¶ 72. This is supported by both Agent Lone's prior testimony concerning the City's K-9 training, Defendant O'Hayre's prior testimony concerning the City's K-9 training, and the City's own 30(b)(6) testimony provided on September 8, 2021. However, as of August 24, 2021, in its answer the City made the judicial admission that the City as an entity does not have sufficient knowledge to admit or deny whether its K-9s are trained as “bite and hold” dogs. Exh. D, ¶ 72. The City's claimed lack of knowledge concerning how it has trained its own K-9s is deeply relevant to the Monell claim in this case. The City's apparent lack of candor concerning what it does and does not know given its subsequent testimony and the prior testimony of its employees is relevant to the City's credibility. In short, examining the City about its denial of the paragraphs identified herein is plainly a proper subject for a deposition. The questions Plaintiff contemplates seek factual answers about what the City knew and when it knew it. Should the Court want to go through each denied paragraph for which Plaintiff wishes to examine the City concerning its denial, counsel will be prepared at the hearing to address why questioning on each denied paragraph is proper.
Because Topic 29 addresses factual matters within the City's knowledge, it is a proper topic for deposition testimony. The City's cited cases concerning deposition topics that seek the opposing party's legal analysis are not germane. To the extent the City believes that a particular question asked during the 30(b)(6) deposition seeks material protected by a privilege, it will remain free to raise that objection and direct the witness not to answer. Fed.R.Civ.P. 30(c)(2); Gebremedhin, 2015 U.S. Dist. LEXIS 91948, at *31 n.7.
Finally, the Court should note Defendants' questionable citation to this Court's decision in Lenox Maclaren Surgical Corp. v. Medtronic, Inc., 2015 U.S. Dist. LEXIS 75813, at *10-16 (D. Colo. June 11, 2015) (Wang, M.J.) for the proposition that Rule 30(b)(6) prohibits questioning concerning the opposing party's contentions. What this Court wrote was that while the parameters of a Rule 30(b)(6) deposition are not unbounded, “a party may use a Rule 30(b)(6) deposition to elicit an opposing party's contentions and the facts it may rely on to support them . . . .” This is what Mr. Erickson permissibly seeks to do. And while the decision does address the impermissibility of “blockbuster” topics, the examples this Court cited concerning what constitutes a “blockbuster” topic make clear that the label does not apply to Topic 29, which seeks factual information from the City concerning its answers to specific factual allegations in Mr. Erickson's operative complaint.
III. SUMMARY OF PRIOR GOOD FAITH ATTEMPTS TO RESOLVE DISPUTE
On September 1, 2021, the City served upon Plaintiff its Notice of Objections to Certain Topics in Plaintiff's Amended Fed.R.Civ.P. 30(b)(6) Deposition Notice, which included a recitation to Plaintiff of substantially all legal authority cited above on pages 34 thereof. [Exh. B]. On September 3, 2021, counsel for Plaintiff and for the City conferred telephonically on the City's Notice of Objections, then called the Magistrate Judge to discuss issues relating to said Notice of Objections. Later that day, after the telephonic discovery proceeding with the Magistrate Judge, the parties engaged in further conferral over email, with Plaintiff limiting the scope of Topic 29 as stated above. On September 3, 2021, the Magistrate Judge entered ECF 123 in which the City was ordered to designate, by September 13, 2021, one or more designees on topics to which the City did not respond in its Rule 30(b)(6) deposition on September 8, 2021. On September 13, 2021, the City sent to Plaintiff a draft of this Joint Status Report pursuant to NYW Civ. Prac. Std. 37.1, with an essentially contemporaneous notification that the City was producing one or more designees to testify on all topics apart from Topic 29 for which there was no response in the City's original Rule 30(b)(6) deposition on September 8, 2021-namely, Topics 1-2, 5-8, 10-20, 25-26, and 28, the City having already given compliant testimony on Topics 3, 4, 9, 21, 22, 23, 24 and 27. On September 15, Mr. Erickson added his position to the Joint Status Report. On September 16 and 17, the parties revised their various positions before sending the final Joint Status Report on September 17 via email to the Magistrate Judge's chambers with all counsel of record copied on the email.
CERTIFICATE OF SERVICE
I hereby certify that, on this 17th day of September, 2021, I electronically served the foregoing JOINT STATUS REPORT REGARDING OBJECTIONS FROM DEFENDANT CITY OF LAKEWOOD, COLORADO, TO PLAINTIFF'S AMENDED NOTICE OF RULE 30(B)(6) DEPOSITION OF DEFENDANT CITY OF LAKEWOOD, COLORADO upon the chambers of Magistrate Judge Nina Y. Wang and simultaneously copied the following email addresses of counsel of record for Plaintiff: