United States District Court, D. Colorado
MEGAN MCFADDEN, LONNIE WHITE, and ANTONIO “A.J.” WHITE, Plaintiffs,
MEEKER HOUSING AUTHORITY, a Property Management Company, MELINDA PARKER, MICHELLE BUCKLER, EDY GEORGE, and, STACIE KINCHER, Defendants.
ORDER SUSTAINING PLAINTIFFS' OBJECTION IN
William J. Martinez, United States District Judge.
the Court is Plaintiffs' Objections to Magistrate
Judge's Order Denying Motions to Restrict and for
Sanctions (“Objection”). (ECF No. 245.) The
Objection refers to United States Magistrate Judge Gordon P.
Gallagher's August 14, 2017 order. (ECF No. 238 (filed
under Level 1 Restricted Access).) Defendants filed no
reasons set forth below the Court sustains Plaintiffs'
Objection in most respects. However, the Court defers
consideration of sanctions to a later stage of the case.
reviewing an objection to a magistrate judge's
non-dispositive ruling, the Court must affirm the ruling
unless it finds that the ruling is “clearly erroneous
or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C.
§ 636(b)(1)(A); Ariza v. U.S. West Commc'ns,
Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly
erroneous standard “requires that the reviewing court
affirm unless it on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal
quotation marks omitted). The “contrary to law”
standard permits “plenary review as to matters of law,
” see 12 Charles Alan Wright et al.,
Federal Practice & Procedure § 3069 (2d ed., Apr.
2016 update), but the Court will set aside a magistrate
judge's order only if it applied the wrong legal standard
or applied the appropriate legal standard incorrectly,
see Wyoming v. U.S. Dep't of Agric., 239
F.Supp.2d 1219, 1236 (D. Wyo. 2002). In short,
“[b]ecause a magistrate judge is afforded broad
discretion in the resolution of non-dispositive . . .
disputes, the court will overrule the magistrate judge's
determination only if his discretion is abused.”
Ariza, 167 F.R.D. at 133.
A.J. White (“White”) lives in federally
subsidized housing in Meeker, Colorado. (ECF No. 237 ¶
47.) White has a history of severe depression and attention
deficit/hyperactivity disorder (“ADHD”), and
claims that he is disabled by these conditions. (Id.
¶ 8.) He relies on his pet cats to help manage his
disability, on the recommendation of his mental health
professional. (Id. ¶ 8, 61-64.) From 2014 to
mid-2016, the management of White's apartment complex
permitted residents to keep pets as long as the pets provided
documented assistance. (Id. ¶¶ 52-53.)
White obtained the necessary documentation and lived with his
cats without objection from apartment management.
(Id. ¶¶ 58-60, 65.)
2016, the management tightened its pet policy to require much
more documentation regarding companion animals, including a
letter from a psychiatrist (a letter from a psychologist or
therapist apparently does not suffice) and “evidence of
a nexus between the companion animal and the debility
attested to by the [psychiatrist].” (Id.
¶¶ 88.) White soon filed this lawsuit, claiming
that Defendants' new policies discriminate against his
disability status in violation of the Rehabilitation Act of
1973, 29 U.S.C. §§ 794 et seq., and the
Fair Housing Act, 42 U.S.C. §§ 3601 et
seq. (See ECF No. 1.)
16, 2017, Defendants filed a motion under Federal Rule of
Civil Procedure 35 to compel a psychiatric examination of
White (“Rule 35 Motion”). (ECF No. 152.) That
motion included statements regarding conditions beyond
White's admitted depression and ADHD, particularly a
diagnosis that-for reasons that will become clear below-the
Court will refer to simply as the “Additional
Diagnosis.” (Id. at 2, 3, 7.) It also attached
Plaintiffs' May 5, 2017 Rule 26(a)(2) expert disclosure,
which listed, among many other persons, a clinical counselor
who “treated [White] for major depressive disorder,
generalized anxiety disorder, and [the Additional Diagnosis].
[This counselor] may offer his opinion of [White's]
mental health condition and its effects . . . .” (ECF
No. 152-3 at 6.) It similarly listed a medical doctor who
“treated [White] for [the Additional Diagnosis]. [This
medical doctor] may offer his opinion of [White's] mental
health condition and its effects . . . .” (ECF No.
152-3 at 7.)
after Defendants filed their Rule 35 Motion, White filed a
restricted emergency motion to “seal”
(i.e., restrict) the Rule 35 Motion and its exhibits
(“Motion to Restrict”), arguing that the
Additional Diagnosis was private and that Defendants had
violated the Protective Order (ECF No. 112) by discussing it
in a public filing. (ECF No. 156 at 2-3.) White announced
that his counsel had conferred with Defendants about
restricting the Rule 35 Motion, but Defendants responded that
White had made the Additional Diagnosis public by including
it in the Rule 26(a)(2) expert disclosure. (Id. at 2
n.1.) This disclosure had not been marked
“confidential” per the Protective Order.
(See ECF No. 152-3.)
preemptively countered this argument by noting a letter sent
to Defendants' counsel on the same day that counsel
exchanged expert disclosures. This letter accused Defendants
of violating the Protective Order because they had conveyed
the Additional Diagnosis to a third party without
authorization. (ECF No. 156-3; see also Part
III.B.2, below.) White also noted that his counsel designated
his entire deposition transcript confidential per the
Protective Order because the deposition focused significantly
on the Additional Diagnosis. (ECF No. 156 at 2.) And,
Defendants had only learned of the Additional Diagnosis by
reviewing White's medical records, which were produced
with a “CONFIDENTIAL” designation. Thus, White
argued, Defendants knew that the Additional Diagnosis should
be treated as confidential under the Protective Order.
(Id. at 3.)
also requested “attorneys' fees and costs incurred
in filing this Emergency Motion.” (Id. at 4.)
As grounds, White alleged “repeated violations of the
Court's Protective Order in addition to [Defendants']
failure to follow Court procedures [regarding discovery
filed an unrestricted response confirming their view that
White's non-confidential expert disclosure showed that
the Additional Diagnosis was not confidential. (ECF No. 168
at 3, 7.) Defendants also argued that
restriction was improper because the Additional Diagnosis is
relevant to resolving White's claim, and restricting any
mention of it would deprive the public of its right to
understand the Court's eventual reasoning either in favor
of or against White's claim. (Id. at 4-6.)
Moreover, according to Defendants, White testified at his
deposition that he has already informed “some people
where he works” about the Additional Diagnosis.
(Id. at 3.) Finally, Defendants say that White's
Additional Diagnosis will, at some point, inevitably manifest
itself outwardly and therefore be impossible to keep private.
(Id. at 7.)
reply, White argued that whether his admitted disabilities
(depression and ADHD) are in some sense influenced or caused
by the Additional Diagnosis is irrelevant because he only
needs to prove that he has a disability; he does not need to
prove its source. (ECF No. 197 at 3.) As for Defendants'
argument regarding White's expert disclosures, White
asserted that “[t]he mere act of providing counsel with
this information does not render the information public in
any way.” (Id. at 7.) Furthermore, said White,
“[i]f Defendants genuinely believed that disclosures
served between counsel were in fact discovery documents, it
would have been appropriate for Defendants to notify
Plaintiffs of the missing ‘CONFIDENTIAL'
designation instead of using the disclosures as a
‘gotchya' moment.” (Id.) Concerning
Defendants' argument that the Additional Diagnosis will
inevitably manifest itself visibly, White ...