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HomeMy WebLinkAbout2023-cv-1341 - Erbacher v. City Of Fort Collins, et al. - 84 - Motion for Protective Order1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 23-cv-01341-CNS-NRN CODY ERBACHER, Plaintiff, v. CITY OF FORT COLLINS, and JASON HAFERMAN, Defendants. JOINT DEFENDANTS’ MOTION FOR PROTECTIVE ORDER AND, IN ALTERNATIVE, FOR ADDITIONAL BRIEFING AND A HEARING Jason Haferman (“Defendant Haferman”), and the City of Fort Collins (“the City”) (collectively “Defendants”), by and through their undersigned counsel of record, hereby submit their Motion for Protective Order and, in alternative, Motion for Additional Briefing and a Hearing and state as follows: CERTIFICATION PURSUANT TO D.C.COLO.LCivR 7.1(a) Undersigned counsel, Yulia Nikolaevskaya, conferred with Plaintiff’s counsel, Sarah Schielke (“Ms. Schielke”) via email on November 22 and 25, 2024, concerning the relief requested in this Motion. Plaintiff opposes the motion and Ms. Schielke indicated that “[i]t is Plaintiff’s position that "any pleading, written motion, or other paper presented to the Court” seeking to relitigate this issue by pretending that the sensitivity of the records at issue is a new development would be a violation of FRCP 11, warranting sanctions.” Plaintiff also added that "Plaintiff also states Defendant’s Motion appears violative of Judge Neureiter’s Practice Standards re: Motions Practice and Discovery Disputes (“To avoid unnecessary and expensive motions practice, a party may not file an opposed Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 1 of 9 2 discovery motion without first complying with these discovery dispute procedures. Filing a disputed discovery motion without permission from the Court may result in the motion being stricken and the imposition of appropriate sanctions.”) (emphasis in original)." RELEVANT FACTUAL BACKGROUND Plaintiff has initiated a discovery dispute with the City pursuant to the City’s alleged failure to produce certain documents requested via request for document production. Parties have filed a joint discovery dispute statement, and this Court has held a discovery dispute hearing as to the issues. See ECFs 80, 81. That hearing took place on November 21, 2024. At that hearing, the City indicated that it had located about 20 pages of documents related to Defendant Haferman’s Worker’s Compensation claim. The City and Defendant Haferman agreed to produce those documents for an in camera review. The City indicated it was continuing to look for additional Worker’s Compensation records. After the hearing, the City located over 100 pages of Worker’s Compensation records in the possession of its outside Worker’s Compensation attorney. Those records include Defendant Haferman’s sensitive, private and confidential mental health treatment records from various medical providers. Based on the extremely sensitive nature of those newly located records, Defendants seek the relief stated herein. Defendants are seeking this relief and filing this Motion now because of the deadline for records’ in-camera review production outlined in Judge Neureiter’s order issued under ECF 81. The City has produced 20 pages of records, for in-camera review, which were previously discussed with the Court during the discovery dispute hearing. The newly discovered records are a different category of records, different from the category of records discussed during the hearing. Because this Motion has been filed, the newly Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 2 of 9 3 discovered records have not been produced for in-camera review. LEGAL STANDARD The proper scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). The trial court has discretion to grant a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Thomas v. Int'l Bus. Machines, 48 F.3d 478, 482 (10th Cir.1995). Rule 26(c) provides that, upon a showing of good cause, a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” which order may include forbidding disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(A). DOCUMENTS AT ISSUE Subsequent to the discovery hearing on November 21, 2024, the City was able to locate additional Worker’s Compensation claim medical records related to Defendant Haferman. These records were obtained from the City’s outside counsel, handling Defendant Haferman’s Worker’s Compensation claim. The located medical records range from 2019 to 2024 and are about 100 pages long. The records largely consist of records from medical and mental health providers and include records of therapy sessions with Defendant Haferman. All pertain to Defendant Haferman’s highly sensitive mental health condition. These medical records were located after the discovery dispute hearing has already occurred. Because these records were not located prior to the hearing, Defendant Haferman did not have an opportunity to address these records with the Court. Defendant Haferman is asking this Court for a Protective Order pursuant to Rule 26(c) which provides that, upon a showing of good cause, a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 3 of 9 4 expense.” Defendant Haferman requests this Court to shield these records from the City’s production to Plaintiff based on Plaintiff’s discovery requests. Production of these records to Plaintiff would cause Defendant Haferman additional mental health and physical harm and would serve no purpose except continued “annoyance, embarrassment and oppression.” In alternative, if the Court is not inclined to grant Defendant Haferman and the City’s request based on this filing, Defendant Haferman and the City would, in the alternative, request an additional briefing and the hearing with the Court to specifically address these newly located records. ARGUMENT The records located by the City from its outside attorneys representing the City in Defendant Haferman’s Worker’s Compensation claim pertain to Defendant Haferman’s diagnosis/treatment of a sensitive mental health condition. Based on Plaintiff’s representation, Plaintiff is seeking these records to support Plaintiff’s Monell claim against the City. Plaintiff’s Monell claim against the City is based on Failure to Train and Supervise theory a liability. See 1st Amended Complaint, Claim II. The treatment records related to Defendant Haferman treatment/diagnosis for a mental health condition have no relevance to Plaintiff’s failure to train/supervise claim against the City. Plaintiff cannot show that suffering from, and later seeking treatment for this highly sensitive mental health condition, is relevant to a failure to train and supervise claim related to an allegation of arrest without probable cause for a DUI. Defendant Haferman’s highly sensitive mental health condition and diagnosis/treatment records from 2019 to 2024 are NOT relevant to Plaintiff’s Monell failure to train and supervise claim against the City or any claims against Defendant Haferman. Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 4 of 9 5 Moreover, these specific treatment medical records are also irrelevant because these records do not contain any communication that Defendant Haferman had with the City or City had with Defendant Haferman’s treatment providers. The medical records that have been obtained from the attorneys representing the City in the Worker’s Compensation case all pertain to Defendant Haferman’s treatment with medical providers. These records were not in the actual possession of the City. The records were in the possession of the City’s outside counsel in the context of representing the City in a Worker’s Compensation claim. If Plaintiff is really trying to obtain evidence to show what the City knew about former Officer Haferman’s mental health, these communications between patient and medical providers are IRRELEVANT to Plaintiff’s claims. Defendant Haferman had a reasonable expectation of privacy regarding these newly located treatment records.1 In Jaffee v. Redmond, the Supreme Court recognized a psychotherapist-patient privilege, holding that “confidential communications between a licensed psychotherapist and [his or] her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” 518 U.S. 1, 16 (1996). Defendant Haferman has not waived any privilege and has not put his mental health condition at issue. Additionally, there are strong policy considerations which should protect an individual’s privacy interest in protecting medical and mental health records. Defendant 1 This Court has previously noted the distinction between treatment records and records related to evaluations for worker’s compensation and fitness for duty. Defendant Haferman submits treatment records related to treatment he received within the Worker’s Compensation system should not be produced. Defendant Haferman agrees the City submitting Worker’s Compensation evaluations which were in the actual possession of the City for an in camera review (the approximately 20 pages discussed during the discovery dispute hearing on November 21, 2024). Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 5 of 9 6 Haferman has a right of informational privacy arising under Colorado law. See Gateway Logistics, Inc. v. Smay; 2013 CO 25 (Colo. 2013); In re Dist. Court, 256 P.3d 687 (Colo. 2011). Moreover, Defendant Haferman has a federally recognized right to informational privacy and non-disclosure. See Whalen v. Roe, 429 U.S. 589, 599 & n.25 (1977) (right to privacy includes both an “individual interest in avoiding disclosure of personal matters” and “the right to be let alone”); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000) (Tenth Circuit “repeatedly interpreted the Supreme Court’s decision in Whalen ... as creating a right to privacy in the nondisclosure of personal information”); Montgomery v. Wal-Mart Stores, Inc., 2015 U.S. Dist. LEXIS 185218, at *3-4 (S.D. Cal. Sept. 9, 2015) (party seeking discovery invasive of privacy “must demonstrate a compelling need for discovery” that outweighs the right to privacy, and showing of potential relevance is not enough); JB v. Asarco, Inc., 225 F.R.D. 258, 262 (N.D. Okla. 2004) (“Discovery that broadens the scope of the litigation and intrudes upon privacy rights should not be permitted” unless there is a showing the need for disclosure outweighs the importance of protecting privacy). Defendant Haferman has a constitutional right to privacy with respect to his medical information. “There is no dispute that confidential medical information is entitled to constitutional privacy protection.” A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994). Asking for these records from the City is a fishing expedition by Plaintiff and cannot overcome an irreparable and identifiable harm it will cause Defendant Haferman even if these records are produced under the Protective Order and designated “Confidential”. Defendant Haferman has been diagnosed and has been treated for highly sensitive mental health condition. If these records are produced to Plaintiff, Defendant Haferman Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 6 of 9 7 WILL suffer further embarrassment and oppression related to his mental health condition. The information contained in the referenced medical treatment records includes statements made in the course of therapy to medical providers to help these providers to properly treat Defendant Haferman. This information is absolutely irrelevant to Plaintiff’s failure to train and supervise claim or whether probable cause existed for Plaintiff’s arrest and prosecution for a DUI. But production of these medical records, which are clearly irrelevant to Plaintiff’s claims, is relevant to Defendant Haferman’s further mental health wellbeing and physical health. As stated above, it will cause former Officer Haferman further mental and physical harm. CONCLUSION As discussed above, the specific records of treatment sessions between Defendant Haferman and his mental health providers are IRRELEVANT to any claims by Plaintiff. If these highly sensitive treatment records are produced to Plaintiff, even under the Protective Order currently in place, it will cause irreparable harm including emotional and physical injury to Defendant Haferman. This Court should grant Defendant Haferman and the City’s request and order the City not produce these records to Plaintiff pursuant to discovery requests. In alternative, Defendant Haferman and the City ask this Court to allow for additional briefing on this issue and to set a hearing on issues outlined in this Motion. Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 7 of 9 8 Dated this 25th day of November 2024. SGR, LLC /s/ Jonathan Abramson Jonathan Abramson, Esq. Yulia Nikolaevskaya, Esq. 3900 E. Mexico Ave., Suite 700 Denver, CO 80210 Telephone: 303-320-0509 Email: jabramson@sgrllc.com jnikolaevskaya@sgrllc.com Attorneys for Defendant Jason Haferman HALL & EVANS /s/ Mark Ratner Mark Ratner, Esq. 1001 Seventeenth Street, Suite 300 Denver, CO 80202 Telephone: 303-628-3337 Email: ratnerm@hallevans.com Attorney for Defendant City of Fort Collins Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that on the 25th day of November 2024, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Sarah J. Schielke The Life & Liberty Law Office 1055 Cleveland Avenue Loveland, CO 80537 970-493-1980 Email: sarah@lifeandlibertylaw.com ATTORNEY FOR PLAINTIFF Robert Alan Weiner Mark Scott Ratner Hall & Evans LLC 1001 Seventeenth Street Suite 300 Denver, CO 80202 303-293-3222 Email: weinerr@hallevans.com ratnerm@hallevans.com ATTORNEYS FOR CITY OF FORT COLLINS By: s/James Reynolds Paralegal SGR, LLC Case No. 1:23-cv-01341-CNS-NRN Document 84 filed 11/25/24 USDC Colorado pg 9 of 9