United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant Jeffrey Watts' ("Watts") Motion for a Protective Order Concerning Plaintiff's Subpoena to Produce Documents Directed at Sprint Telecommunications [#498] (the "Motion for Protective Order"); on Defendants City and County of Denver, Gilberto Lucio, James Dixon, Adam Barrett, Joel Smith, Jesse Rembert, Jay Lopez, Michael O'Neill, Darin Desel, and Perry Speelman's (the "Denver Defendants") Motion to Quash Subpoena [#504]; and on the Denver Defendants' Motion to Quash Subpoena [#505]. Plaintiff filed Responses [#513, #515] in opposition to the Motions, and Defendants filed Replies [#516, #524].
This matter is also before the Court on Defendant Watts' Motion to Reassert Motion for a Protective Order Concerning Plaintiff's Subpoena to Produce Documents Directed at Sprint Telecommunications [#645]; on the Denver Defendants' Motion to Reassert Motions to Quash Subpoena [Docs. #504 and 505] [#647]; and on Plaintiff's Motion to Resurrect Subpoenas [#528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, and 540] and for Copies of Previous Discovery Motions [#498, 500, 504, 505, 512, 513, 515] With Leave to Amend His Responsive Pleadings to Respond to Defendants' Motions [#498, 500, 504, 505] That Have Just Been Resurrected Without Service of Process and Proper Notice [#649] ("Plaintiff's Motion"). The Court has considered the Motions, the Responses, the Replies, the case record, and the applicable law, and is fully advised in the premises.
On June 4, 2013, the Court directed the United States Marshal to serve a number of subpoena duces tecum on nonparties on behalf of Plaintiff, who proceeds in this matter as an incarcerated pro se litigant. Order [#497] at 2. The subpoenas were duly served,  see [##528-540], and Defendant Watts' Motion for Protective Order [#498] and the Denver Defendants' Motions to Quash [#504, #505] were thereafter filed and fully briefed. Before all of the nonparties responded to the subpoenas and before the Denver Defendants' and Defendant Watts' Motions [#498, #504, #505] were adjudicated, discovery was stayed based on issues unrelated to the subpoenas. Order [#553] at 8. The Court later denied these discovery Motions [#498, #504, #505] and others without prejudice due to the stay. Minute Order [#582] at 2. The parties were informed at that time that "[w]hen and if the stay of discovery is removed, pending discovery motions may be timely refiled, if necessary, within thirty (30) days of the issuance of the order lifting the stay." Id. On January 26, 2015, the District Judge lifted the stay, Order [#633], and the undersigned thereafter held a Status Conference, in which the parties were directed to file motions reasserting any of the previously-denied discovery motions that still required adjudication. Minute Entry [#643]. In response, the parties filed three Motions [#645, #647, #649].
Before proceeding to the merits of the substantive motions, the Court addresses preliminary issues. First, the Court grants the Denver Defendants' and Defendant Watts' Motions to Reassert [#645, #647]. Accordingly, the Court considers the merits of Defendant Watts' Motion for Protective Order [#498] and the Denver Defendants' Motions to Quash [#504, #505] below.
Second, to the extent that Plaintiff seeks copies of the briefing on the discovery motions, the Court grants in part this request. The Court is not required to provide the parties with additional copies of filings. However, as a one-time courtesy, the Court will direct the Clerk of Court to mail to Plaintiff copies of the motions and briefs that are issue in connection with this Order. See [#498, #504, #505, #513, #515, #516, #524]. The Court will not direct the Clerk of Court to send additional copies of filings in this lawsuit that are presently not at issue. See [#500, #512].
Third, to the extent that Plaintiff seeks leave to amend his responses to the Motion for Protective Order [#498] and Motions to Quash [#504, #505], the request is denied. These Motions were fully briefed prior to imposition of the stay in this matter, and Plaintiff has provided no explanation for why this briefing is insufficient and should be amended.
A. Defendant Watts' Motion for Protective Order
The Court first addresses Defendant Watts' Motion for Protective Order [#498]. The decision to issue a protective order rests within the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). A protective order may issue upon a showing of good cause "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." Fed.R.Civ.P. 26(c). The good cause standard of Rule 26(c) is not met by the conclusory statements of the moving party. Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003). Instead, "the party seeking a protective order must show that disclosure will result in a clearly defined and serious injury to that moving party." Id. (citing Exum v. U.S. Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002)).
The subpoena at issue here is directed to the Custodian of Records for Sprint Telecommunications and seeks:
Dean Carbajal's complete, unedited, unredacted Sprint Telecommunications file as kept in the ordinary course of business, from January 1, 2004 through the date of your response to this subpoena. This shall include but is not limited to: documentation of all phone numbers registered under social security no. [redacted]; documentation for all applications for, or, registration of pen registers with supporting evidence or affidavits; all e-mails or correspondence with law enforcement concerning Dean Carbajal's accounts, to include all notes and memorandums related thereto; all warrants and applications for copies of Carbajal's phone records filed, with or without a warrant; and all correspondence sent to or from law enforcement, or other persons, re: Carbajal's Sprint phone accounts.
Subpoena to Produce Documents, Information, or Objects [#536] at 2.
Plaintiff asserts that Defendant Watts lacks standing to seek a protective order. Response [#513] at 3-4. "Generally, a party does not have standing to challenge a subpoena issued to a third party, absent some personal or proprietary interest or privilege in the materials subpoenaed." Barton v. Tomecek, No. 11-CV-619-CVE-TLW, 2012 WL 3730066, at *3 (N.D. Okla. Aug. 28, 2012); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (3d ed. 2008). Defendant Watts is a party to thsi case and asserts the law enforcement investigative privilege. However, this privilege belongs to the government alone and must be asserted by it. In re M & L Bus. Mach. Co., Inc., 161 B.R. 689, 693 (D. Colo. 1993) (citing United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981) (identifying the law enforcement investigative privilege as one of the privileges "exclusively reserved for the Government")). Without citation to authority, Defendants Watts replies that he has:
... standing to [assert this privilege] as [a] Defendant[ ] in this litigation, and as [a] former employee[ ] of the Office of the District Attorney for the Second Judicial District. Moreover, it would do nothing more than elevate form over substance for this Court to require either Mr. Fuller[, who provided the government's affidavit in support of the Motion for Protective Order, ] or the District Attorney for the Second Judicial District to make the same assertions ...