United States District Court, D. Colorado
MITCHELL F. YATER, Plaintiff,
POWDERHORN SKI COMPANY LLC, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
Y. Wang United States Magistrate Judge.
matter is before the court pursuant to the Motion to Quash
Subpoena to Testify at a Deposition in a Civil Action
(“Motion to Quash”), filed by third-party the
Colorado Civil Rights Division (“CCRD”). [#30,
filed November 17, 2017]. The Motion to Quash was referred to
this Magistrate Judge pursuant to the Order Referring Case
dated August 8, 2017 [#17] and the memorandum dated November
20, 2017 [#31]. The court heard oral argument regarding the
Motion to Quash on January 11, 2018, and took the motion
under advisement. After review of the Motion and associated
briefing, the entire docket, and the applicable law, this
court respectfully GRANTS IN PART and DENIES IN
PART the Motion to Quash.
Mitchell F. Yater (“Plaintiff” or “Mr.
Yater”) initiated this action on May 30, 2017, alleging
retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et
seq., and the Colorado Anti-Discrimination Act
(“CADA”), Colo. Rev. Stat. §§ 2434-401
et seq. [#1]. Mr. Yater asserts that he worked for
Defendant as a regular ski-season employee beginning in 2007,
and that he was employed in the rental shop of
Defendant's ski resort during the 2013-2014 ski season.
[Id. at ¶¶ 13-14]. At that time, Mr. Yater
was dating another employee, Alex Nees, who also worked in
the rental shop and who was allegedly the subject of sexual
harassment by their joint supervisor, Roger Roberts.
[Id. at ¶¶ 21-22]. Mr. Roberts fired Ms.
Nees in January 2014, after which Mr. Yater complained to
Defendant's human resources department that Mr. Rogers
terminated Ms. Nees on pretextual grounds for refusing his
unwelcomed sexual advances. [Id. at ¶ 28]. Mr.
Yater alleges that within four hours of speaking with the
human resource department, a fellow employee informed him
that he would be fired the following day. [Id. at
¶ 30]. Indeed, the next day, Mr. Roberts issued Mr.
Yater a written warning for arriving at work eight minutes
late and then, after Mr. Yater left the ski boot counter to
assist at the short-staffed snowboard counter, Mr. Roberts
presented him with an Employee Disciplinary Action that
recommended termination for failure to follow instructions.
[Id. at ¶¶ 32-36]. After meeting with the
human resource department, Defendant fired Mr. Yater for
insubordination and failure to follow instructions, and for
his allegedly confrontational behavior during the meeting.
[Id. at ¶ 38].
Yater filed a timely charge of retaliation with the Colorado
Civil Rights Division (“CCRD”) and the Equal
Employment Opportunity Commission (“EEOC”) on or
about July 24, 2014. [Id. at ¶ 8]. The CCRD
opened an investigation into the matter and assigned
investigator Samuel Anderson to the file. [#30 at 2]. Mr.
Anderson helped negotiate some resolution terms between the
Parties, [id.], before the EEOC issued a Notice of
Right to Sue letter on March 1, 2017. [#1 at ¶ 9]. This
response to the Complaint, Defendant filed an Answer denying
liability and asserting two counterclaims for enforcement of
the settlement agreement and breach of contract. See
[#9]. Specifically, Defendant alleges that Plaintiff made a
settlement demand on or about April 24, 2015, and, following
negotiations, the Parties entered into an enforceable
contract to settle Plaintiff's claims on June 25, 2015.
[Id. at 8-17]. Defendant further contends that
later, on June 25, 2015, Mr. Yater “changed his mind
and decided he no longer wished to settle his claims.”
[Id. at ¶ 18]. In response to the
counterclaims, Mr. Yater asserts that he “neither
admits nor denies the allegations” because “the
allegations contain  confidential information protected by
the Colorado Dispute Resolution Act, Colo. Rev. Stat. §
1322-301, et seq.” [#16 at ¶¶ 24-25,
of discovery, Mr. Yater sought documents from the CCRD and
subpoenaed Mr. Anderson to gather facts to establish that Mr.
Anderson was a “mediator” under the Colorado
Dispute Resolution Act, so that the Parties would be
precluded from engaging in discovery into any communications
made at Mr. Anderson's behest. [#30 at 3]. The CCRD
produced documents pursuant to a waiver, but declined to
produce its communication log based on privilege.
[Id. at 9]. The CCRD also declined to make Mr.
Anderson available for deposition, and thereafter filed the
Motion to Quash. The CCRD argues that a deposition is not the
least intrusive means for obtaining information from Mr.
Anderson, as he has executed an affidavit averring that he
has no independent recollection of the investigation and the
CCRD's records are the best source of knowledge on the
subject. [#30, #30-4]. It also argues that some of the
information sought by Mr. Yater intrudes on the Governmental
Deliberative Process Privilege, as it requires Mr. Anderson
to disclose his mental impressions about the Parties'
expectations of finality. [#30 at 7-8]. The CCRD further
contends that to the extent Mr. Yater seeks testimony
regarding the information posted on the CCRD website, Mr.
Anderson is not the appropriate person to depose as he has no
relevant knowledge. [#30 at 7]. The CCRD also offers to issue
an authentication of its files if so requested.
[Id.]. Finally, the CCRD contends that the
deposition creates an undue burden on the agency beyond just
this case, and expresses concern that allowing the deposition
“could create a precedent and have a broad effect
across the hundreds of discrimination cases filed each year,
” such that “[t]he agency would be severely
hampered in its statutory duty in timely processing
administrative charges and enforcing Colorado's
antidiscrimination statute.” [Id. at 10].
Yater opposes the Motion to Quash, and argues that the
deposition of Mr. Anderson is necessary to establish that
“the settlement discussions that took place between
April 21 and June 25, 2015 were a ‘mediation'
conducted by the CCRD investigator and that the proposed
settlement agreement was a ‘mediation
communication' under the Dispute Resolution Act.”
[#34 at 3]. Mr. Yater enumerates a number of topics of
factual testimony he seeks from Mr. Anderson, such as Mr.
Anderson's customs and practices concerning informal
dispute resolution; whether the settlement discussions were
confidential and whether the parties were informed as to
confidentiality; what Mr. Anderson told Mr. Yater about the
settlement discussions and his role; whether there was a
written agreement to mediate and if not, why not; how the
CCRD investigator/agency handled the settlement documents; if
the CCRD is a current record custodian of the settlement
agreement; whether Defendant signed the settlement agreement;
and whether the investigator and the agency regarded the
settlement as final. [Id. at 3-4]. Mr. Yater
contends such information is necessary to support his
defenses to Defendant's two counterclaims, and that the
Governmental Deliberative Process Privilege does not protect
factual information and in any event the CCRD takes no steps
in formally invoking such privilege. [#34 at 7]. Mr. Yater
argues that the circumstances presented here are akin to
those in Giezie v. Valley Health Sys., LLC, No.
12cv00036-ECR-GWF, 2012 WL 3929446 (D. Nev. Sept. 7, 2012),
in which the court compelled the testimony of an EEOC
Investigator after the EEOC raised similar objections to the
Reply, the CCRD argues that “Mr. Yater failed to
identify areas of factual testimony that would require a CCRD
investigator's testimony, ” [#36 at 1], and that
Mr. Anderson's testimony is unnecessary with respect to
each of the enumerated topics, because either Party could
attest or testify to what information Mr. Anderson conveyed.
[Id. at 2-3]. The CCRD also distinguishes this case
from Giezie, and restates its position that
permitting the deposition of Mr. Anderson will result in both
an undue burden for CCRD and repercussions that will
reverberate well beyond this case.
did not file a response to the Motion to Quash, but argued
during the Status Conference that the pretrial deadlines set
for two phases of discovery would be jeopardized should the
court permit the deposition of Mr. Anderson. In particular,
Defendant argued, the Scheduling Order contemplated that
during the first phase of discovery the Parties would focus
on whether there is an enforceable settlement agreement, and
then focus during the second phase on the merits of Mr.
Yater's retaliation claim. [#28]. Defendant also
clarified that it does, in fact, dispute whether Mr.
Anderson's involvement during the course of the CCRD
investigation gave rise to a “mediation, ” and
whether the Parties' resulting communications occurred at
the behest of a mediator, such that they would be protected
by the Colorado Dispute Resolution Act.
subpoena served on a third party pursuant to Rule 45 of the
Federal Rules of Civil Procedure is considered discovery
within the meaning of the Federal Rules of Civil Procedure.
Rice v. U.S., 164 F.R.D. 556, 556-57 (N.D. Okla.
1995). Accordingly, a Rule 45 subpoena must satisfy the same
standards that govern discovery between the parties, i.e., to
be enforceable, it must seek information that is relevant to
a party's claims or defenses, and that is proportional to
the needs of the case. Fed.R.Civ.P. 26(b)(1). In addition,
discovery conducted pursuant to a Rule 45 subpoena must be
concluded by the deadline specified in the court's
Scheduling Order. Grant v. Otis Elevator Co., 199
F.R.D. 673, 675 (N.D. Okla. 2001); Rice, 164 F.R.D.
timely motion, the court must quash or modify a subpoena
that, inter alia: (1) fails to allow a reasonable
time to comply; (2) requires the disclosure of privileged or
other protected matter, if no exception or waiver applies;
(3) subjects a person to undue burden; or (4) requires the
disclosure of a trade secret or other confidential research,
development, or commercial information. Fed.R.Civ.P.
45(d)(3)(A), (d)(3)(B). Generally, “a party has no
standing to quash a subpoena served upon a third party,
except as to claims of privilege relating to the documents
being sought[, ]” or “upon a showing that there
is a privacy interest applicable.” Windsor v.
Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997)
(citations omitted) (“[a]bsent a specific showing of a
privilege or privacy, a court cannot quash a subpoena duces
tecum”). “Objections unrelated to a claim of
privilege or privacy interests are not proper bases upon
which a party may quash a subpoena.” Cobbler
Nevada, LLC v. Does, No. 15-CV-02771-WYD-MEH, 2016 WL
300827, at *1 (D. Colo. Jan. 25, 2016) (citations omitted).
26(b)(1) of the Federal Rules of Civil Procedure defines the
scope of permissible discovery. 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 benefit.
scope as defined no longer includes all information
“reasonably calculated to lead to admissible
evidence.” The amendments to Rule 26 effective December
1, 2015, purposefully removed that phrase, due to concern
expressed by the Advisory Committee on the Federal Rules of
Civil Procedure that use of the “reasonably
calculated” phrase to define the scope of discovery
“might swallow any other limitation on the scope of
discovery.” See In re Bard Filters Products
Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)
(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 ...