United States District Court, D. Colorado
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 Plaintiffs' Motion
to Compel Production [#144][1](the “Motion to
Compel”) of documents from Non-party Colorado State
Board of Nursing (the “Board”). The Board timely
filed a Response [#168] to the Motion to Compel, and
Plaintiffs filed a Reply [#178]. In its previous Order
[#207], the Court granted in part, denied as moot in part,
and took under advisement in part the Motion to Compel [#144]
so that it could perform an in camera review with
respect to the documents which the Board asserted were
protected from disclosure under the law enforcement
investigative privilege. The Court has carefully reviewed the
documents timely submitted by the Board on July 18, 2019 for
in camera review. To the extent not previously ruled
on in the Court's prior Order [#207], the Motion to
Compel [#144] is GRANTED in part and DENIED in
part, as set forth below.[2]
I.
Background
This
case involves the death of an inmate, Jeffrey Scott Lillis
(“Lillis”), while he was detained in the Arapahoe
County Detention Facility (“ACDF”) in Arapahoe
County, Colorado. Compl. [#1] ¶¶ 1, 40.
After the death of Mr. Lillis at ACDF, the Board, which is an
administrative agency within the Department of Regulatory
Agencies (“DORA”), conducted an investigation
into the care and treatment provided to Mr. Lillis in the
days leading up to his death. Motion to Compel
[#144] at 2. Plaintiffs subsequently sought production by
Defendant Kyambadde and former defendant nurses Robly Evans,
Denise Elwell, Jason Frank, Anita Brown, and Nancy Winegar of
“all records . . . relating to any and all proceedings
by the . . . [Board] . . . regarding the death of Jeffrey
Lillis on December 14, 2014” (hereinafter the
“Board Records”). See Motion to Compel
[#106] at 1-2. On February 7, 2019, the Court granted
Plaintiffs' prior Motion to Compel [#106] with respect to
Defendant Kyambadde and denied the motion as moot to the
extent it was asserted against the former defendant nurses.
See Order [#135]. The only argument asserted by the
current and former defendants in opposition to the prior
motion to compel was that the Court should recognize and
apply the Colorado statutory peer review privilege, which the
Court declined to do after determining that creation of a
federal peer review privilege was inappropriate in the given
circumstances. Id. at 10-11.
Following
that Order [#135], Plaintiffs served subpoenas on the Board
“requesting the production of the complete case files
related to the Board's inquiries into the medical care
and treatment given to Mr. Lillis” by the Nurses.
Motion to Compel [#144] at 2. The Board
“responded to the subpoenas with a number of objections
and a refusal to produce any documents covered by the
subpoenas.” Id. at 3. In its Response [#168]
to the present Motion to Compel [#144], the Board asserts
that the Board Records are protected from disclosure on
several grounds: (1) relevance; (2) confidentiality; (3)
deliberative process privilege; (4) confidentiality of
settlement communications; and (5) law enforcement privilege.
The Board also submitted a privilege log with its Response.
See Ex. 1 to Response [#168-1]. In the previous
Order [#207] partially addressing the present Motion [#144],
the Court addressed and rejected all arguments asserted by
the Board except for its assertion of the law enforcement
investigative privilege. Because the Court was unable to
determine from the face of the privilege log whether the
Board's assertion of the law enforcement investigative
privilege was valid, the Court ordered the Board to submit
all documents asserting that privilege (## 25, 26, 31-34, 37,
39, and 42) for in camera review.
II.
Legal Standard
The law
enforcement investigative privilege is a governmental
privilege which belongs to the government alone and must be
asserted by it. In re M & L Bus. Mach. Co.,
Inc., 161 B.R. 689, 693 (D. Colo. 1993). It is
“based primarily on the harm to law enforcement efforts
which might arise from public disclosure of . . .
investigatory files.” Winner, 641 F.2d at 831
(quoting Black v. Sheraton Corp., 564 F.2d 531 (D.C.
Cir. 1977)). “To assert the law enforcement evidentiary
privilege, the responsible official in the department must
lodge a formal claim of privilege, after actual personal
consideration, specifying with particularity the information
for which protection is sought, and explain why the
information falls within the scope of the privilege.”
Winner, 641 F.2d at 831. “The purpose of the
law enforcement privilege is to prevent disclosure of law
enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law
enforcement personnel, to safeguard the privacy of
individuals involved in an investigation and otherwise to
prevent interference with an investigation. In re M &
L Bus. Mach. Co., Inc., 161 B.R. at 693 (citations and
internal quotation marks omitted). “The privilege may
be overridden by the movant's substantial need for the
documents and its inability to obtain their substantial
equivalent by other means.” Id. (citations and
internal quotation marks omitted).
This
privilege covers only “records or information compiled
for law enforcement purposes. To qualify for this privilege
from disclosure, the information must satisfy two conditions:
its source must be a government agency, and the agency must
demonstrate how a disclosure would cause one of the harms
specified in [5 U.S.C.] § 552(b)(7).” Design
Basics, LLC v. ProBuild Co. LLC, No.
10-cv-02274-REB-BNB, 2011 WL 2600980, at *4 (D. Colo. June
30, 2011) (quoting Forest Prods. Nw., Inc. v. United
States, 62 Fed.Cl. 109, 113 (Fed. Cl. 2004) (citing
Tuite v. Henry, 181 F.R.D. 175, 176-77 (D.D.C. 1998)
(holding that “[t]he federal law enforcement privilege
is a qualified privilege designed to prevent disclosure of
information that would be contrary to the public interest in
the effective functioning of law enforcement. The privilege
serves to preserve the integrity of law enforcement
techniques and confidential sources, protects witnesses and
law enforcement personnel, safeguards the privacy of
individuals under investigation, and prevents interference
with investigations”)). The harms specified in 5 U.S.C.
§ 552(b)(7) include interference with enforcement
proceedings, deprivation of a right to a fair trial or an
impartial adjudication, unwarranted invasions of personal
privacy, disclosure of the identity of a confidential source
or information furnished by a confidential source, disclosure
of techniques and procedures for law enforcement
investigations or prosecutions, disclosure of guidelines for
law enforcement investigations or prosecutions or endangering
the life or physical safety of any individual.
III.
Analysis
After
careful review of the documents submitted for in
camera review, the Court determines that the material
contained within the documents which is largely factual in
nature does not fall within the scope of the law enforcement
investigative privilege. Although the Board asserts that
“release of the information would reveal the
Board's case against the Nurses, including the nature,
direction, and focus of its investigations, ” the Court
finds that information which reveals the investigative
mechanism can be redacted from each document submitted for in
camera review. Response [#158] at 15.
As
indicated above, the harms specified in 5 U.S.C. §
552(b)(7) include interference with enforcement proceedings,
deprivation of a right to a fair trial or an impartial
adjudication, unwarranted invasions of personal privacy,
disclosure of the identity of a confidential source or
information furnished by a confidential source, disclosure of
techniques and procedures for law enforcement investigations
or prosecutions, disclosure of guidelines for law enforcement
investigations or prosecutions or endangering the life or
physical safety of any individual. The two harms potentially
at issue here, as far as the Court can determine, are
interference with enforcement proceedings against the Nurses
or unwarranted invasions of personal privacy with respect to
the Nurses. In order to alleviate both potential harms, the
Court finds that portions of the documents should be
redacted. Those redactions are as follows:
(1) Document #25:
Page 1: the first three bullet points entirely, the fourth
bullet point, beginning with “What” and ending
with “December 2014, ” and the next six bullet
points entirely.
(2) Document #26:
Page 1: the second paragraph, second sentence, beginning with
“Can” through to the last sentence ending with
“them.” The third paragraph, second sentence,
starting with ...