United States District Court, D. Colorado
CORY S. SCHERBARTH, Plaintiff,
OFFICER WOODS, Aurora City Police Department OFFICER VAN CLEAVE, Aurora City Police Department Defendants.
case is before the court on the motions of Defendants William
Woods and Erik Van Cleave ("Defendants") to quash
Plaintiff Cory Scherbarth's subpoena to the City of
Aurora (doc. 46) and to stay certain discovery pending a
determination of qualified immunity (doc. 52). In the latter
motion, Defendants ask the court to "limit discovery
in this matter to only those facts and issues that are
necessary to determine whether Defendants are qualified
immune from suit under the circumstances of this case."
The motions are fully briefed. The court also has before it
the parties' joint motion to amend the schedule. Doc. 55.
s operative pleading is the amended complaint he filed
prose. Doc. 18. Mr. Scherbarth alleges two claims
against Officers Woods and Van Cleave. First, Plaintiff
alleges the officers used excessive force in arresting him,
violating his Fourth Amendment right to be free of
unreasonable seizure and violating C.R.S. § 18-8-803.
Am. Complaint at p. 8 of 17. Second, Plaintiff alleges the
officers falsely arrested and imprisoned him without probable
cause, violating his Fourth, Fifth and Fourteenth Amendment
rights. Id. at pp. 9-10 of 17. Plaintiff seeks
damages, punitive or exemplary damages, medical coverage, and
attorneys' fees and costs. Id. at p. 12 of 17.
original complaint, Plaintiff also sued the officers in their
official capacities, which the court construed as a
Monell claim against the City of Aurora for a
policy or custom that caused the alleged violations of
Plaintiffs constitutional rights. On initial review pursuant
to 28 U.S.C. § 1915, Magistrate Judge Gordon P.
Gallagher found the complaint lacked fact allegations of a
policy or custom causing the alleged violations. Doc. 10
(Order of October 14, 2016) at p. 3. Judge Gallagher gave
Plaintiff an opportunity to amend his complaint to add such
allegations, and Plaintiff instead moved to stay
Monell claims until he could investigate. Judge
Lewis T. Babcock denied the motion and to the extent the
Amended Complaint still sought to sue the officers in their
official capacities, dismissed those claims. Doc. 20 (Order
of Jan. 11, 2017) at p. 4. Mr. Scherbarth thus sues only the
officers in their individual capacities.
two discovery motions in part overlap each other. Both
motions take issue with Plaintiffs subpoena for documents
from the non-party City of Aurora. Both motions also argue
that most of the documents Plaintiff seeks would only be
relevant to a Monell claim. The court addresses the
motion regarding the subpoena first.
Defendants' Motion to Quash or Modify Subpoena
timely motion, the court must quash or modify a subpoena if
it "requires the disclosure of privileged or other
protected matter, if no exception or waiver applies ... or
(4) requires the disclosure of a trade secret or other
confidential research, development, or commercial
information." Charles Schwab & Co. v. Highwater
Wealth Mgmt., LLC, No. 17-cv-00803-CMA-NYW, 2017 WL
4278494, at *4 (D. Colo. Sept. 27, 2017) (citing Fed.R.Civ.P.
45(d)(3)(A), (d)(3)(B)). Defendants argue virtually all
documents requested in the subpoena are irrelevant, but they
have standing to challenge it only as to privilege or
privacy. Windsor v. Martindale, 175 F.R.D. 665, 668
(D. Colo. 1997); Charles Schwab, 2017 WL 4278494, at
*4. Defendants do not assert a privilege and assert a privacy
interest only in their personnel files and (if any
exist) internal affairs investigation files.
Therefore, the court considers Defendants' arguments only
as to the subpoena requests for their personnel or internal
investigation files: Doc. 46-1, subpoena categories 1, 2, 14
and 15. Defendants argue the court should use an inherent
power to hear their relevance arguments, but under
Windsor and its progeny, this court declines to do
so. Defendants' motion to quash is denied as to subpoena
undisputed that Defendants have some privacy expectation in
their personnel and internal investigation files; the
question is whether Plaintiff has a need for the information
that would outweigh that interest. The U.S. Supreme Court
recognizes public officers have a constitutional right of
confidentiality - albeit not absolute - in private, personal
information such as may be contained within a personnel or
investigation file. Woolen v. Roe, 429 U.S. 589, 599
(1977) ("individual interest in avoiding disclosure of
personal matters"); Nixon v. Admin, of Gen.
Servs., 433 U.S. 425, 457 (1977) ("public
officials, including the President, are not wholly without
constitutionally protected privacy rights in matters of
personal life unrelated to any acts done by them in their
public capacity"). Defendants argue the court should
determine whether that right of privacy outweighs Plaintiffs
need for discovery pursuant to the balancing test that
Colorado state courts established in Martinelli v.
District Court, 612 P.2d 1083 (Colo. 1980).
When the right to confidentiality is invoked to prevent
disclosure of personal materials or information, a
tri-partite balancing inquiry must be undertaken by the
court, as follows: (1) does the party seeking to come within
the protection of right to confidentiality have a legitimate
expectation that the materials or information will not be
disclosed? (2) is disclosure nonetheless required to serve a
compelling state interest? (3) if so, will the necessary
disclosure occur in that manner which is least intrusive with
respect to the right to confidentiality?
Martinelli, 612 P.2d at 1091 (paragraph breaks
2011, the Colorado Supreme Court modified this test such that
"the requesting party must prove either that disclosure
is required to serve a compelling state interest or
that there is a compelling need for the information, "
and either "the information is not available from other
sources, " or if "available from other sources, ...
that it is using the least intrusive means to obtain the
information." In re District Court, 256 P.3d
687, 691-92 (Colo. 2011).
argues Martinelli and In re District Court
may not apply here because discoverability for federal claims
is governed by federal rules and law. Plaintiff cites
Everitt v. Brezzel, 750 F.Supp. 1063 (D. Colo. 1990)
and Cisneros v. Town of Center, No.
08-cv-02661-WYD-MEH, 2009 WL 2568534, at *3 (D. Colo. Aug.
18, 2009). In both cases, the plaintiff alleged (as does Mr.
Scherbarth) excessive force, and false arrest or false
imprisonment. Both cases find Federal Rule of Civil Procedure
26 - not Martinelli - governs the discoverability of
police personnel or internal investigation files.
do not address Everitt or Cisneros, but
point to Flanagan v. Manger, 890 F.2d 1557, 1570
(10th Cir. 1989) and Denver Policemen's Protective
Association v. Lichtenstein, 660 F.2d 432, 434-35 (10th
Cir. 1981). Flanagan and Lichtenstein
applied Martinelli to assess claims that disclosures
of police personnel or internal investigation files which
occurred (or were ordered) outside of federal court violated
the federal constitutional right of privacy. Defendants also
cite a criminal case, United States v. Neal, No.
11-cr-00163-WJM, 2011 WL 3648381, at *4-5 (D. Colo. Aug. 18,
2011), in which this court applied Martinelli to
determine the discoverability of police officer's
personnel files. None of these cases analyze whether the
issue of discoverability for a federal claim action should be
decided under state or federal law.
end, the court agrees with Everitt and
Cisneros' reasoning that Rule 26 governs the
discoverability of Defendants' personnel and internal
investigation files. However, In re District Court
and Rule 26 differ significantly only in the procedure to
follow after a court finds officers' files should be
produced. Martinelli requires in camera
review in all such cases to ensure no irrelevant or highly
personal information is disclosed. Rule 26 does not require
in camera review, although the court has discretion
to require it case-by-case. This court has found in
camera review should be reserved to the rare or
exceptional instance that the parties cannot resolve a
dispute on the issue. See, e.g., Everitt, 750
F.Supp. at 1067-68; Cisneros, 2009 WL 2568534, at
other than the question of in camera review, the
court's analysis would be the same under either In re
District Court or Rule 26. First, Martinelli
does not purport to create a state law right of privacy; it
addresses the federal constitutional right of privacy.
Martinelli, 612 P.2d at 1091-92 (citing
Whalen, 429 U.S. at 599; Nixon, 433 U.S. at
457, 458). See also McDonald v. Wise, 769 F.3d 1202,
1217 (10th Cir. 2014) (discussing Martinelli as a
case regarding whether the "constitutional right of
privacy prevents disclosure ... during the discovery process,
" not a case establishing substantive scope for the
right of privacy). The court is not aware of any Colorado law
that creates a state law right of privacy in police personnel
or internal investigation files more expansive than the
federal right of privacy. Defendants for instance cite the
protection given to their files in the Colorado Open Records
statute, C.R.S. § 24-72-204(3)(a) ("The custodian
shall deny the right of inspection of [personnel files]...
unless otherwise provided by law") and the Colorado
Criminal Justice Records Act, C.R.S. § 24-72-305(5)
(''unless otherwise provided by law, the custodian
may deny access to" investigatory files). The statutes
are consistent with the federal privacy interest, but do not
add to it. Both statutes defer to other laws for the scope of
privacy. Indeed, the Tenth Circuit rejected firefighters'
assertions of a broader privacy right in their internal
investigation files. Mangels v. Pena, 789 F.2d 836,
839-40, n.3 (10th Cir. 1986) ("Rights of substantive due
process are founded not upon state provisions but upon deeply
rooted notions of fundamental personal interests derived from
the state and federal balancing tests are largely the same.
Martinelli 's balancing test was based in part
on Nixon. Martinelli, 612 P.2d at 1091-92 (citing
Nixon, 433 U.S. at 458). In re District
Court's balancing of a compelling state interest or
need for the information against the privacy interest is
analogous to Rule 26's balancing of the need for
information with the annoyance, embarrassment or oppression
likely to result from disclosure. Fed.R.Civ.P. 26(b)(1)
("importance of the discovery in resolving the
issues"); (b)(2)(C) (court must limit discovery that
"can be obtained from some other source that is more
convenient [or] less burdensome"); (c)(1) (authorizing
protective orders regarding confidential information). In
re District Court's limitation to the "least
invasive" means is likewise analogous to Rule
26(c)'s provision for specifying the terms of disclosure
for confidential information.
to whether these files should be produced under Rule 26,
Plaintiff argues he needs Defendants' personnel and
internal investigation files because Defendants'
credibility is a critical issue for his excessive force claim
and the files may contain impeachment evidence. Plaintiff
alleges he did not resist arrest or attempt to flee.
Defendants assert to the contrary Plaintiff did resist or
attempt to flee, necessitating their use of force. Plaintiff
further argues that "it appears that Plaintiff and
Defendants were the only witnesses to this event. Without the
personnel files. Plaintiff may have no other way to impeach
Defendants' credibility or challenge their versions of
these events." Doc. 50 (response) at p. 11. Defendants
reply that Plaintiff s brother witnessed the arrest. The
parties thus disagree whether the files in question are the
only potential source of impeachment.
argues the Tenth Circuit and Colorado courts find
officers' privacy interests outweighed by a
defendant's need for exculpatory evidence and the right
to confront witnesses, relying on Neal,
Lichtenstein, and People v. Walker, 666P.2dll3,
121-22 (Colo. 1983). Defendants distinguish these cases as
allowing discovery of officers' files only when the
defendant is charged with assaulting an officer, there was no
other source of evidence to impeach their credibility, or all
of the prosecution's witnesses were police officers.
Walker, 666 P.2d at 122; Neal, 2011 WL
3648381; Lichtenstein, 660 F.2d at 436 (holding
"[i]nasmuch as the instant case involves a 'swearing
match' between the accused and police officers,
ascertainment of the truth is of particular
importance."). These cases are persuasive that unless a
claim involves a police officer's credibility (or the
defendant's alleged conduct toward the officer during an
arrest), the need for an officer's file is not compelling
enough to overcome the officer's privacy interest.
However, these cases do not purport to premise
discoverability on the absence of other potential sources of
court also finds Everitt and Cisneros
persuasive on this issue. On excessive force and false
arrest/imprisonment claims, neither case focuses on whether
there are other potential sources of impeachment evidence.
Both cases find officers' personnel files and internal
investigation files relevant and order production; a
Monell claim was central to that finding but does
not appear to be the sole basis. See, e.g., Everitt,
750 F.Supp. at 1066 ("especially since plaintiff has
made claims against both the individual officers and the
municipality"); Cisneros, 2009 WL 2568534, at
*2 ("especially in light of her claims against both the
individual officers and the municipality itself"). Both
courts restricted access to the parties' attorneys only,
and allowed the officers to identify in a log any information
within the files they deemed so confidential or private that
it warranted withholding even from the plaintiffs attorney.
If the plaintiff wished to pursue that information, the court
would then conduct an in camera review.
the above cases, however, with respect to internal
investigation files Defendants also assert they received
"Garrity advisements, " in which the chief of
police gave assurance that he or she would resist any request
for disclosure of those files except as required by law.
Specifically, Defendants assert
the Aurora Police Department's Garrity
Advisement provides that "[f]he information I provide
shall remain confidential and no truthful information will be
used in any criminal proceeding against me. Any request for
this statement, whether criminal or civil, will be analyzed
by the Chief of Police and the Department to resist any
disclosure not mandated by law."
Doc. 46 (motion) at p. 12. Defendants argue this advisement
as an alternative basis for their expectation of
"limited confidentiality, " citing American
Civil Liberties Union of Colorado v. Whitman, 159 P.3d
707, 711 (Colo.App. 2006). The first difficulty with this
argument is the Tenth Circuit found a similar advisement did
not give officers a broader privacy interest than the federal
Constitution does. Mangels, 789 F.2d at 839-40, n.3.
Secondly, even assuming Mangels' holding is
inapplicable here, the Chief and Department agree to resist
only disclosures that are "not mandated by law."
Defendants could not rely on the advisement as protection
from a court finding a compelling need or state interest for
discovery of the file. The court ...