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McFadden v. Meeker Housing Authority

United States District Court, D. Colorado

March 8, 2018



          William J. Martinez, United States District Judge.

         Before 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 response.

         For the 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.


         When 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.


         Plaintiff A.J. White (“White”)[1] 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.)

         In July 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.)

         On May 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.)

         The day 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.)

         White 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.)

         White 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 disputes].” (Id.)

         Defendants 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.)[2] 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.)

         In 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 ...

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