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Yater v. Powderhorn SKI Company LLC

United States District Court, D. Colorado

February 8, 2018



          Nina Y. Wang United States Magistrate Judge.

         This 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.


         Plaintiff 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].

         Mr. 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 action followed.

         In 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, 28-30].

         As part 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].

         Mr. 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 deposition.

         In 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.

         Defendant 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.


         I. Rule 45

         A 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. at 558.

         On a 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).

         II. Rule 26(b)(1)

         Rule 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. Id.

         The 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 ...

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