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Kurlander v. Kroenke Arena Company, LLC

United States District Court, D. Colorado

July 20, 2017

KIRSTIN KURLANDER, on behalf of herself and others similarly situated, Plaintiff,


          Nina Y. Wang United States Magistrate Judge

         Magistrate Judge Nina Y. Wang This matter comes before the court on the Motion for Protective Order and to Quash Subpoena Duces Tecum (“Motion for Protective Order”) [#26], filed by Defendant Kroenke Arena Company, LLC (“KAC” or “Defendant”) on May 22, 2017. The Motion for Protective Order was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Order Referring Case dated November 22, 2016 [#4], and the Memorandum dated May 23, 2017 [#29]. The court has considered the Parties' filings [#26, #27, #28, #30, #36], the applicable case law, and the comments offered during oral argument held July 11, 2017. The matter is now ripe for resolution, and, for the reasons set forth herein, this court hereby DENIES the Motion for Protective Order.


         On November 10, 2016, Plaintiff Kirstin Kurlander (“Plaintiff” or “Ms. Kurlander”) initiated a Class Action Complaint against Kroenke Sports and Entertainment, LLC, alleging that the entity's failure to provide audio content captioning during events held at the Pepsi Center, and failure to otherwise provide effective communication for patrons who are deaf or hard of hearing, amounts to violations of Title III of the Americans with Disabilities Act (“ADA”) and the Colorado Anti-Discrimination Act (“CADA”). [#1]. Ms. Kurlander amended the Complaint on January 13, 2017 to substitute KAC for the original defendant, [#7], and again on March 20, 2017, to eliminate the claim arising under CADA. [#14].

         On January 25, 2017, this court entered a Scheduling Order in this matter, [#12], and the Parties proceeded through discovery. On May 9, 2017, the Parties filed a Joint Status Report and contacted the undersigned Magistrate Judge's chambers with regard to the circumstances that precipitated the Motion for Protective Order. See [#23]. The following facts are drawn from the Parties' Joint Written Discovery Dispute Chart submitted directly to chambers and the briefing associated with KAC's Motion for Protective Order.

         Previously in this action, Plaintiff filed a Motion for Class Certification and attached the declarations of five putative class members thereto. See [#15]. In response, Defendant argued that “five patrons … cannot justify class certification.” [#18 at 14]. As part of the litigation, KAC retained Kari Knutson[1] as a non-testifying expert “to advise Defendant and its counsel on Deaf culture and provide opinions on the same, ”[2] regarding services available at the Pepsi Center. [#26 at 1]. Counsel for KAC drafted questions for Ms. Knutson to use during interviews with members of the Deaf community (“Survey Questions”). [Id. at 12]. Counsel also drafted introductory remarks to be used with the interviews (“Script”). [Id. at 1]. Counsel for KAC authorized the non-testifying expert to conduct such interviews over Skype, FaceTime or relay, “with the work product drafted by [KAC's] counsel to be her script.” [Id. at 2]. Although counsel for KAC did not authorize Ms. Knutson to use electronic mail to conduct the interviews, Ms. Knutson nonetheless contacted four individuals in writing and sent three of the four the Survey Questions inquiring into their views on the modes of communication offered at the Pepsi Center. Two of these individuals (collectively, “Declarants”) had already submitted declarations in support of Plaintiff's Motion for Class Certification, and did not substantively respond to Ms. Knutson's communication. Two other individuals (“Putative Class Members”) responded to the Survey Questions in writing. The substance of the email correspondence with each of the individuals is different, but three of the four emails contain the Script.

         Plaintiff learned of KAC's non-testifying expert and the emails, including the Script, because one of the Declarants, Jaclyn Tyrcha, voluntarily forwarded her chain of email communication with the non-testifying expert to Plaintiff's counsel. That communication identified Ms. Knutson as Defendant's non-testifying expert and included the Script. The Parties met and conferred and agreed to exchange copies of the electronic correspondence, subject to an agreement that neither Party was conceding either discoverability or admissibility. Following the exchange of electronic correspondence, Plaintiff's counsel contacted the Putative Class Members who had responded to Ms. Knutson and asked that they forward their responses to her. The Putative Class Members then forwarded their answers to the Survey Questions to Plaintiff's counsel. See [#30 at 4].

         On May 16, 2017, the Parties appeared before this court for an informal discovery dispute conference regarding this issue, and submitted the electronic correspondence for the court's in camera review. [#24]. The following questions were presented: (1) are the emails protected as work product under Rule 26(b)(3); (2) if so, did disclosure of the emails to putative class members result in waiver of the privilege; (3) are the emails protected as work of the non-testifying expert under Rule 26(b)(4)(D); (4) if so, did the non-testifying expert's correspondence with putative class members result in waiver of Rule 26(b)(4)(D) protection; and (5) regardless of whether at one time the emails enjoyed protection as either work product or under Rule 26(b)(4)(D), has Plaintiff shown substantial need or exceptional circumstances necessary to justify disclosure of the emails. Having considered the Parties' briefing and the applicable case law, this court finds that no work product privilege attached to the Script or the emails. The court further finds that even if work product protection attached, Defendant expressly waived it with regard to the Script. In addition, this court finds that neither the work product doctrine nor Rule 26(b)(4)(D) protects Ms. Tyrcha's voluntary disclosure to Plaintiff's counsel of the identity of Ms. Knutson as Defendant's non-testifying expert, or the substance of the communication between Ms. Knutson and the two Declarants. As to the identities of the third parties whom Ms. Knutson contacted and the substance of the communication exchanged with the Putative Class Members that was revealed only through operation of the agreement between counsel, I find that such information is covered by Rule 26(b)(4)(D), but that Plaintiff has carried her heavy burden of showing exceptional circumstances exist to warrant disclosure. See Fed. R. Civ. P. 26(b)(4)(D)(ii).

         At oral argument, the Parties identified three categories of information contained in the electronic correspondence at issue: (1) the Survey Questions; (2) the third parties' responses to the Survey Questions; and (3) other communications between Ms. Knutson and the third parties. While the court finds this categorization helpful, the undersigned also considers the specifics of the correspondence exchanged between Ms. Knutson and the four individuals with whom she communicated.


          I. Work Product Doctrine

         Defendant first argues that the work product doctrine covers not only the Survey Questions crafted by its counsel but also the entirety of the electronic correspondence exchanged between Ms. Knutson and the third parties. The work product doctrine is reflected in Fed.R.Civ.P. 26(b)(3)(A), which generally protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” The Rule provides that, subject to Rule 26(b)(4), work product may be discovered if it is otherwise discoverable under Rule 26(b)(1) and the party seeking the disclosure establishes “substantial need.” Fed.R.Civ.P. 26(b)(3)(A)(i), (ii).

         Protection under the work product doctrine is not absolute, and it can be waived. A waiver may be express, i.e., a party affirmatively consents to disclosure of the information. See, e.g., Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (“The work-product privilege may be waived by the voluntary release of materials otherwise protected by it.”) (citation and quotation omitted). Or waiver may be implied through conduct. The burden of proving waiver rests upon the party seeking to overcome the privilege. DH. ex rel. Holder v. Gold Fields Mining Corp., 239 F.R.D. 652, 655 (N.D. Okla. 2005) (“[T]he majority view is that the party claiming waiver has the burden of proof on that issue.”).

         II. Rule 26(b)(4)(D)

         A separate Rule governs the work of non-testifying experts and provides that:

[o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

Fed. R. Civ. P. 26(b)(4)(D).[3] Exceptions to the Rule include (1) such discovery as provided for in Rule 35(b), which pertains to the report of an examiner who is performing a mental or physical exam pursuant to court order; and (2) when the party seeking the discovery demonstrates “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Id. at 26(b)(4)(D)(i), (ii). Four commonly identified purposes for Rule 26(b)(4)(D) include:

(1) Allowing counsel to obtain the expert advice they need in order to properly evaluate and present their client's position, without fear that every consultation “may yield grist for the adversary's mill”;
(2) Preventing unfairness that stems from allowing one party to benefit from the effort and expense incurred by its adversary in preparing its case;
(3) Guarding against the diminished willingness of experts to serve as consultants, and any potential unfairness to the expert; and
(4) Preventing the prejudice associated with one party calling an expert previously retained or consulted ...

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