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Estate of Lillis v. Board of County Commissioners of Arapahoe County

United States District Court, D. Colorado

July 29, 2019

THE ESTATE OF JEFFREY SCOTT LILLIS, by and through its co-personal representatives Meghan Lillis and Michele Driscoll, MEGHAN LILLIS, individually, C.A.L., individually, a minor, by and through Michele Driscoll as guardian, C.S.L., individually, a minor, by and through Michele Driscoll as guardian, A.L., individually, a minor, by and through Robin Booth as next friend and mother, JORDAN LILLIS, individually, and ASHLEY PERRY, individually, Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, TYLER S. BROWN, in his official capacity as Arapahoe County Sheriff, and RUTH KYAMBADDE, RN, individually; Defendants.

          ORDER

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on the Motion for Emergency Stay of July 12, 2019 Discovery Order Pending Appeal, for Approval of Supersedeas Bond, and Notice of Intent to Appeal [#218][1] (the “Motion”), filed by Non-parties Anita Brown, Jason Frank, and Nancy Winegar (hereinafter, the “Appellant Nurses”), who are three of the five Non-party Nurses who previously filed a Motion for a Protective Order and to Quash the Subpoena [#169] (the “Motion to Quash”). Plaintiffs timely filed a Response [#227] in opposition to the present Motion [#218].

         On July 12, 2019, the Court entered an Order [#207] granting in part, denying as moot in part, and taking under advisement in part Plaintiffs' Motion to Compel Production [#144] (the “Motion to Compel”) and denying in full the Non-party Nurses' Motion to Quash [#169]. In short, the Order [#207] compelled disclosure of records relating to the Non-party Nurses that are in the custody of the Colorado Board of Nursing (“the Board”), which is part of Colorado's Department of Regulatory Agencies (“DORA”). The subpoena at issue was served on the Board. The Non-party Nurses intervened in this action to argue that the records should not be produced based on a lack of relevance, the Nurses' expectation of privacy, the settlement communications privilege, and the peer review privilege, the last of which the Court had already rejected in a prior Order [#135]. Motion to Quash [#169].

         On July 19, 2019, the three Appellant Nurses filed a Notice of Appeal [#219] with respect to the Court's Order [#207] denying their Motion to Quash [#169]. The same day, shortly before filing the Notice of Appeal, the Appellant Nurses filed the present Motion [#218], in which they seek a stay of the Court's Order [#207] pursuant to Fed.R.Civ.P. 62(b) and 62(d). The other two Non-party Nurses, Robly Evans and Denise Elwell, are not parties to the present Motion [#218] or to the appeal.

         I. Fed.R.Civ.P. 62(d)

         The Appellant Nurses rely for their stay request in part on Fed.R.Civ.P. 62(d). Motion [#218] at 6-10. In relevant part, Rule 62(d) provides:

While an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights.

(emphasis added). By its own terms, Rule 62(d) applies only to injunctions. The Appellant Nurses have provided no authority, and the Court has found none, where the meaning of “injunction” under Rule 62(d) has been deemed to include routine discovery orders, even when those discovery orders are directed at non-parties.

         Accordingly, the Motion [#218] is denied to the extent it is asserted pursuant to Fed.R.Civ.P. 62(d).

         II. Fed.R.Civ.P. 62(b)

         The Appellant Nurses further rely for their stay request on Fed.R.Civ.P. 62(b).

         Motion [#218] at 4-6. Rule 62(b) provides:

At any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay takes effect when the court approves the bond or other security and remains in effect for ...

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