United States District Court, D. Colorado
EVANSTON INSURANCE COMPANY, an Illinois corporation, Plaintiff,
AMINOKIT LABORATORIES, INC., a Colorado corporation d/b/a TREATMENT CENTERS XL; TAMEA RAE SISCO, Individually and as a Principal of Aminokit Laboratories, Inc.; and JONATHAN LEE, M.D., Defendants.
ORDER ON MOTION TO QUASH
Y. Wang United States Magistrate Judge
matter comes before the court on Non-party Jerad West's
(“Mr. West”) Motion to Quash Subpoena and for
Protective Order (“Motion” or “Motion to
Quash”), filed February 2, 2018 [#240],  and referred to
the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72
of the Federal Rules of Civil Procedure, and the Memorandum
dated February 2, 2018 [#241]. Having carefully reviewed the
Motion and related briefing, the comments offered at the
February 5, 2018 Telephonic Discovery Conference, the
applicable case, and the entire docket, this court DENIES the
Motion to Quash for the reasons stated herein.
court has discussed the background of this case in prior
Orders, see e.g., [#142; #180], and does so here
only as it pertains to the instant Motion. This case arises
from a dispute over insurance coverage for claims asserted in
the separate lawsuit of Brandon Lassley and Julia
Walker v. Aminokit Laboratories, Inc. d/b/a Treatment
Centers XL; Tamea Rae Sisco; Jonathan Lee, MD; and
White Lodging Services Corporation, No.
15-cv-01531-REB-MJW (the “Lassley
Suit”). [#61 at ¶ 5]. Plaintiff Evanston Insurance
Company (“Plaintiff” or “Evanston”)
provided Defendants Tamea Sisco and Aminokit Laboratories,
Inc. (the “Aminokit Defendants”) and Defendant
Jonathan Lee, M.D. (“Defendant Lee” or “Dr.
Lee”) (collectively, “Defendants”) a
defense in the Lassley Suit, but reserved its rights
to seek reimbursement from Defendants. [Id. at
¶¶ 20, 23]. Evanston then initiated this action and
asserts four claims against Defendants. [#46]. Attorney Jared
West, who jointly represented Defendants for a time in the
Lassley Suit, initially represented the Aminokit
Defendants, while Dr. Lee proceeded pro se.
Defendants moved to dismiss Plaintiff's Amended Complaint
on April 4, 2016. See [#63].
the court's disposition of the Motion to Dismiss, the
Parties were directed to proceed with discovery that was
contemplated under a Scheduling Order entered before the
filing of the Amended Complaint. [#57]. Due to an impasse
with certain discovery from third-parties, the undersigned
stayed discovery and set this matter for a further Status
Conference to discuss scheduling needs, following Judge
Moore's ruling on the pending Motion to Dismiss.
See [#175]. Judge Moore denied the Motion to Dismiss
on July 5, 2017. See [#180]. The following day, Mr.
West and his co-counsel filed their Motion to Withdraw from
representation of the Aminokit Defendants, prompting this
court to set a Status Conference for July 12, 2017.
See [#181; #184].
July 12 Status Conference, this court granted the Motion to
Withdraw and ordered any new counsel for the Aminokit
Defendants to enter an appearance on or before August 11,
2017. [#193]. The Aminokit Defendants were also to file their
Answer to Plaintiff's Amended Complaint as well as their
Response to Evanston's Motion for Partial Summary
Judgment on or before August 12, 2017, and this court set a
further Status Conference for August 30, 2017. [Id.;
#194]. The Aminokit Defendants failed to file an Answer to
Plaintiff's Amended Complaint or a Response to its Motion
for Partial Summary Judgment, and Plaintiff has since moved
for entry of default and default judgment against both.
See [#204; #207]. The Clerk of the Court entered
default against the Aminokit Defendants on September 19,
2017. [#211]. The Motion for Default Judgment [#207] remains
August 21, 2017, Ms. Sisco filed a Suggestion of Bankruptcy
indicating that she filed a voluntary petition for Chapter 7
bankruptcy on July 21, 2017. See [#206]. The
Suggestion of Bankruptcy stated, “Any action against
Aminokit is stayed, as it is a 100% asset of the bankruptcy
estate.” [Id.]. The Parties discussed whether
the automatic stay associated with Ms. Sisco's petition
for bankruptcy also applied to Aminokit at the August 30
Status Conference. [#209]. This court issued an Order
directing the parties to proceed with discovery as to
Aminokit, including from Ms. Sisco as Aminokit's agent,
unless or until the bankruptcy court extended the automatic
stay to Aminokit. [#212]. By that same Order this court
reiterated that the discovery cut-off remained set for
November 17, 2017. See [id.].
on Plaintiff and Dr. Lee's motion, the undersigned
extended the discovery cut-off to November 30, 2017, for the
sole purposes of conducting the depositions of Plaintiff and
Dr. Lee. See [#221]. This court then conducted a
Telephonic Discovery Conference on December 7, 2017, to
discuss the untimely disclosure of Mr. West as a potential
witness for Dr. Lee and Plaintiff's Motion to Strike that
disclosure. See [#223; #224; #226]. The undersigned
denied Plaintiff's Motion to Strike, but granted
Plaintiff permission to depose Mr. West out of time.
See [#226]. Mr. West's deposition was to occur
on or before January 10, 2018, see [id.],
but was later extended to February 12, 2018, upon
Plaintiff's request, see [#230].
West filed the instant Motion on February 2, 2018. [#240].
Mr. West moves to quash Plaintiff's subpoena setting him
for deposition or for a protective order limiting the scope
of his potential deposition testimony on grounds that his
deposition will require the disclosure of information
protected by the attorney-client privilege and Colorado's
Dispute Resolution Act (“CDRA”), Colo. Rev. Stat.
§ 13-22-307, relating to his representation of
Defendants in the Lassley Suit and in this matter.
See generally [id.]. On February 5,
2018, the undersigned conducted a Telephonic Discovery
Conference on the issues outlined in the Motion to Quash, and
ordered that any responses be filed on or before February 14,
2018, and that any replies be filed by February 16, 2018.
[#243]. Plaintiff and Dr. Lee both filed Responses,
see [#244; #245]; Mr. West has not filed a Reply,
but this court may nonetheless proceed. See
D.C.COLO.LCivR 7.1(d). I now consider the arguments raised in
the Motion to Quash.
26(c) of the Federal Rules of Civil Procedure provides that a
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense. Fed.R.Civ.P. 26(c). The party seeking a
protective order bears the burden of establishing its
necessity, Centurion Indus., Inc. v. Warren Steurer &
Assoc., 665 F.2d 323, 325 (10th Cir. 1981), but the
entry of a protective order is left to the sound discretion
of the court, see Rohrbough v. Harris, 549 F.3d
1313, 1321 (10th Cir. 2008). As part of the exercise of its
discretion, the court may also specify the terms for
disclosure. Fed.R.Civ.P. 26(c)(1)(B).
good cause standard is highly flexible, having been designed
to accommodate all relevant interests as they arise. See
Rohrbough, 549 F.3d at 1321.
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 subpoena is bounded by the same
standards that govern discovery between the parties-to be
enforceable, a subpoena must seek information that is
relevant to a party's claims or defenses, and are
proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1).
On a timely motion, the court must quash a subpoena that,
inter alia, requires the disclosure of privileged or
other protected matter, if no exception or waiver applies.
See Fed. R. Civ. P. 45(d)(3)(A), (d)(3)(B).
“Absent a finding by a court that a valid basis exists
to quash a subpoena, the party receiving the ...