United States District Court, D. Colorado
AMENDED ORDER OVERRULING DEFENDANTS' OBJECTION/APPEAL OF DECISION OF MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO, District Judge.
This order is an AMENDMENT of this Court's previous Order dated October 23, 2014 (Doc. # 192), to correct the listing of the Defendants in this case.
This matter is before the Court on Defendants' Objection to Magistrate Judge Michael J. Watanabe's Order ("Defendants' Objection, " Doc. # 186), which granted Plaintiff's Motion to Strike Kellie Wasko's Declaration (Doc. # 170).
In considering objections to non-dispositive rulings by a Magistrate Judge, the Court must adopt the Magistrate Judge's rulings unless it finds that the rulings are "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S. West Communications, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). Thus, objections will be overruled unless the Court finds that the Magistrate Judge abused his or her discretion or, if after viewing the record as a whole, the Court is left with a "definite and firm conviction that a mistake has been made." Ariza, 167 F.R.D. at 133 (citing Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)).
On August 12, 2014, Magistrate Judge Watanabe entered an Order which struck Kellie Wasko's Declaration (Doc. # 167-2), which was attached to Defendants' Response (Doc. # 167) to Plaintiff's Motion for Summary Judgment (Doc. # 159). Judge Watanabe reasoned that Defendants improperly used a "privilege" as both a sword and a shield and relied on evidence that was unsupported by any disclosure to Plaintiff during the discovery phase of this case. Specifically, the undisclosed information related to (1) Ms. Wasko's statements regarding new categories of inmate housing available under the anticipated regulations and steps the Colorado Department of Corrections (CDOC) anticipates taking to offer outdoor exercise; (2) Ms. Wasko's statements regarding a funding request relating to outdoor exercise, ostensibly made during the week of May 12, 2014; and (3) Ms. Wasko's reference to "an alternative plan to provide outdoor exercise to the offenders at CSP" in which certain inmates will be provided the opportunity to exercise outdoors five hours per week. (Doc. # 185.)
Having reviewed the relevant parts of the record, the Court finds that the Magistrate Judge's basis for denying the Motion is not clearly erroneous or contrary to law. Accordingly, the Court concludes that Defendants have failed to show that the Magistrate Judge's ruling was clearly erroneous or contrary to law. Therefore, it is ORDERED that Defendants' Objection (Doc. # 186) is OVERRULED.
This Order in no way affects the admissibility of this evidence at trial. As Magistrate Judge Watanabe's Order states, "Defendants' continuing assertion of the deliberative process privilege' means that they may not use the information they contend is privileged [ i.e., Ms. Wasko's Declaration (docket no. 167-2)] until they are willing to produce evidence of the information to Plaintiff in discovery. Fed.R.Civ.P. 37(c)(1)." (Doc. # 185 at 1) (emphasis added). Defendants make various assertions that they have now disclosed this information. See (Doc. # 185). Thus, it is
FURTHER ORDERED that on or before 5:00 PM on Friday, November 7, 2014, the parties shall provide a joint report regarding whether ...