United States District Court, D. Colorado
Y. Wang United States Magistrate Judge.
matter comes before the court Defendant's Motion for
Leave to Conduct Ex Parte Interviews (“Motion for Ex
Parte Interviews”) [#76, filed on October 20, 2017]
filed by Defendant Susan Campbell (“Defendant
Campbell”) pursuant to 28 U.S.C. § 636(b)(1); the
Order Referring Case dated October 25, 2016 [#14], and the
Memorandum dated October 20, 2017 [#77]. Having reviewed the
Parties' briefing, the applicable case law, and
entertained oral argument on these issues during the November
8, 2017 hearing, the court hereby GRANTS IN
PART and DENIES IN PART Defendant
Campbell's Motion for Ex Parte Interviews.
case arises from an alleged “painful and debilitating
back injury” sustained by Plaintiff Cathleen Carmody
(“Plaintiff” or “Ms. Carmody”) while
detained at the Teller County Detention Center [#1; #38]. Ms.
Carmody alleges in 1999, she sustained a hip injury while
working as a nurse. [#38 at ¶ 24]. For fifteen years,
she dealt with pain in her hip until she had a total hip
replacement surgery in September 2014. [Id.]. As
part of her post-operative treatment plan, Ms. Carmody's
health care providers instructed her to continue to use a
walker until she no longer needed it for walking or balance.
[Id. at ¶ 25].
Carmody was arrested On October 23, 2014, and detained at the
Teller County Detention Center. [Id. at ¶ 26].
After she arrived at the detention center, Defendant Frank
Scofield (“Defendant Scofield” or “Corporal
Scofield”) processed her for intake, but then
confiscated her walker and told her that she was “going
to have to do without [it].” [Id. at
¶¶ 27- 31]. For the duration of her detention, Ms.
Carmody was deprived the use of her walker, except during
court appearances and attorney visits. [Id. at
¶ 33]. Otherwise, she was forced to hop on one leg to
move around the facility. [Id. at ¶ 34].
October 27, 2014, Ms. Carmody attempted to watch television
in the dayroom of the detention center, but while attempting
to sit down on a stool, lost her balance and landed on her
back. [Id. at ¶¶ 36-37]. Ms. Carmody
reported that she was having shooting pains in her back and
needed an ambulance, but Defendant Campbell denied her
request. [Id. at ¶¶ 39-40]. Plaintiff
alleges that she was never taken for any medical examination
and the Teller County Detention Center never provided any
medical treatment of her back injury, except Tylenol.
[Id. at ¶¶ 42-44].
her release in November 2014, Ms. Carmody sought medical
treatment, which has failed to relieve ongoing pain.
Plaintiff alleges that, “[a]fter the unsuccessful
steroid injection, [she] needed to take morphine to obtain
any relief from her pain.” [Id. at ¶ 52].
She further alleges that she “now needs to take
morphine every day to obtain any relief from her back pain,
” but “[s]he would like to stop taking morphine
because of its side effects.” [Id. at ¶
54]. She also alleges, “[d]ue to the constant, sever
pain and the effect the pain has had on her life, [she] is
depressed all the time. Her daily life consists of trying to
manage the pain or manage the side effects of the pain
medication. She cannot sleep without pain medication but she
hates the way the medication makes her feel.”
[Id. at ¶ 57]. She seeks actual economic
losses, including consequential, compensatory, and punitive
Parties have proceeded through discovery and, as noted by
Plaintiff, this court has considered a number of issues
related to Ms. Carmody's medical records. [#67; #72]. The
Parties have also sought, and received, extensions of time
due to the collection and production of Ms. Carmody's
medical records. See e.g., [#60]. Discovery is set
to close on December 29, 2017. [#65].
instant Motion, Defendant Campbell seeks to conduct ex parte
interviews of three categories of health care providers.
First, Defendant Campbell seeks to conduct ex parte
interviews of Leslie O'Neal, LPN; Joe Moore, LPN; Chi
Krantz, RN; and Linda Hewett, NP, who all worked at the
Teller County Jail during Ms. Carmody's detention in
October 2014. [#76 at 2]. All were medical staff and
employees of Correctional Healthcare Companies, Inc.-a
previous Defendant in this action. The second category of
health care providers is Plaintiff's orthopaedic
providers, David S. Matthews M.D. (“Dr.
Matthews”) and Robert Peterson, Jr. PA-C (“Mr.
Peterson”). [Id. at 3]. Last, Defendants seek
to conduct an ex parte interview of Dr. Francis Joseph, Ms.
Carmody's primary care physician from December 2014 to
October 2016. [Id.]. Plaintiff objects, arguing that
the requests are overly broad and likely implicate
confidential and irrelevant information; that three of the
health care providers will be deposed and, therefore, ex
parte interviews are not necessary; and that Defendants have
failed to establish a “compelling need” for the
ex parte interviews. [#83]. Plaintiff further contends that
she should be given adequate notice of any interviews with
her health care providers, and an opportunity for her, or her
counsel, to attend. [Id. at 6].
26(b)(1) of the Federal Rules of Civil Procedure defines the
scope of permissible discovery in this action. 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. 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
scope for discovery does not include all information
“reasonably calculated to lead to admissible
evidence.” The amendments to Rule 26 effective December
1, 2015, purposefully removed that phrase. See In re Bard
Filters Products Liability Litig., 317 F.R.D. 562, 564
(D. Ariz. 2016). As explained by the Bard court, the
Advisory Committee on the Federal Rules of Civil Procedure
was concerned that the phrase had been used incorrectly by
parties and courts to define the scope of discovery, which
“might swallow any other limitation on the scope of
discovery.” Id. (citing Fed.R.Civ.P. 26
advisory committee's notes to 2015 amendment). The
applicable test is whether the evidence sought is relevant to
any party's claim or defense, and proportional to the
needs of the case. Id. Rule 401 of the Federal Rules
of Evidence defines relevant evidence as “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.”
Federal Rules of Civil Procedure contemplate that parties are
not limited to one method of discovery to ascertain relevant
information. Fed.R.Civ.P. 26(d)(3). Nor do the Federal Rules
of Civil Procedure specifically govern informal discovery.
See Matzke v. Merck & Co., 161 F.R.D. 106, 107
(D. Kan. 1994). Nevertheless, courts retain the discretion to
enter protective orders where the court determines that there
is good cause to prevent a party or person from annoyance,