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Home My WebLink About2019-cv-901 - Surat v. City of Fort Collins, et al. - 077 - OPPOSED MOTION FOR PROTECTIVE ORDER RE DEPSOTION OF RANDALL KLAMSERIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-00901-WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. RANDALL KLAMSER in his individual capacity, and CITY OF FORT COLLINS, a municipality, Defendants. OPPOSED MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITION OF OFFICER RANDALL KLAMSER AND REQUEST FOR EXPEDITED DETERMINATION Mark S. Ratner, counsel for Defendants RANDALL KLAMSER, in his individual capacity, and CITY OF FORT COLLINS, a municipality, (collectively “Defendants”), in the above-captioned matter, submits the following Opposed Motion for Entry of a Protective Order Regarding the Deposition of Officer Randall Klamser and Request for Expedited Determination: CERTIFICATE OF CONFERRAL UNDER D.C.COLO.LCivR.7.1 Defendants note that Judge Neureiter’s Practice Standards require parties to argue discovery disputes orally. However, Defendants do not believe that the following constitutes a discovery dispute. Regardless, Defendants have conferred with Plaintiff’s counsel on the requested relief, which Plaintiff opposes. I. INTRODUCTION AND ARGUMENT Case 1:19-cv-00901-WJM-NRN Document 77 Filed 02/19/20 USDC Colorado Page 1 of 5 2 According to the allegations of the Complaint, this matter arises out of the arrest of the Plaintiff, on April 6, 2017 (ECF No. 1 at ¶ 1). Generally, the Plaintiff claims her Fourth Amendment rights were violated, when she was purportedly subjected to excessive force during her arrest by Officer Klamser. The Plaintiff has noticed Officer Klamser’s deposition for February 24, 2020 at the offices of Plaintiff’s counsel. Exhibit A. As part of the deposition, Counsel for the Plaintiff has requested that the parents of the Plaintiff attend Officer Klamser’s deposition. (See Email String dated February 5, 2020, attached hereto as Exhibit B). The stated reason for the request, is that she wants her parents support. (Exhibit B). The Defendants object to Plaintiff’s parents attending Officer Klamser’s deposition, and seek a protective order precluding them from doing so. Pursuant to Fed. R. Civ. P. 26(c)(1)(E), this Court may issue a protective order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including … designating the persons who may be present while the discovery is conducted.” Fed. R. Civ. P. 26(c)(1)(E). The person from whom discovery is sought may move for a protective order under Fed. R. Civ. P. 26(c). SEC v. Dowdell, 144 Fed. Appx. 716, 724 (10th Cir. 2005); Zvelo, Inc. v. SonicWALL, Inc., 06-cv-00445-PAB-KLM, 2013 U.S. Dist. LEXIS 75212 at *7-9 (D. Colo. May 29, 2013); see also TruePosition, Inc. v. Polaris Wireless, Inc., 13-cv-01042-PAB-MWJ, 2013 U.S. Dist. LEXIS 69689 at *4-8 (D. Colo. May 16, 2013) (considering non-party’s motion for protective order under Rule 26(c) to preclude deposition); Trejo v. Franklin, 04-cv-02523-REB-MJW, 2006 U.S. Dist. LEXIS 36787 at *4-10 (D. Colo. June 6, 2006). Case 1:19-cv-00901-WJM-NRN Document 77 Filed 02/19/20 USDC Colorado Page 2 of 5 3 When it comes to non-parties attending depositions, courts have found that members of the public are “not necessarily entitled to attend the private depositions held” in a case. EEOC v. Original Honeybaked Ham Co. of Ga., 11-cv-02560-MSK-MEH, 2012 U.S. Dist. LEXIS 114206 at *3-4 (D. Colo. Aug. 13, 2012). This is because “pretrial depositions and interrogatories are not public components of a civil trial.” Id. (quoting Seattle Times Co v. Rhinehart, 467 U.S. 20, 33 (1984)). As such, “[d]epositions ‘are not a judicial trial, nor a part of a trial, but a proceeding preliminary to trial, and neither the public nor representative of the press have a right to be present at such taking.” Id., (quoting Kimberlin v. Quinlan, 145 F.R.D. 1, 2 (D.D.C. 1992). Plaintiff has presented no legitimate basis for allowing an adult-Plaintiff’s parents to attend the deposition of a Police Officer who she accuses of using excessive force. Although Plaintiff’s Counsel has indicated that she wants “her parents’ support”, it should be noted this is not the deposition of Michaella Surat. Rather, implicitly, it appears the attendance by Plaintiff’s parents is meant only as a means to somehow harass Officer Klamser. As Ms. Surat’s parents are members of the public, they do not have a right to be present at a non-public portion of this matter. Thus, the Court should exclude them from attending the deposition as explicitly allowed under Fed. R. Civ. P. 26(c)(1)(E). WHEREFORE, the Defendants respectfully request the entry of an order, precluding Michella Surat’s parents, or any other non-party fact witness, from attending the deposition of Randall Klamser. Furthermore, as the deposition of Officer Klamser is less than a week away, the Defendants ask for an expedited determination regarding their request. Case 1:19-cv-00901-WJM-NRN Document 77 Filed 02/19/20 USDC Colorado Page 3 of 5 4 Dated this 19th day of February 2020. Respectfully submitted, s/ Mark S. Ratner Mark S. Ratner, Esq. Hall & Evans, L.L.C. 1001 Seventeenth St., Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 ratnerm@hallevans.com ATTORNEYS FOR DEFENDANTS Case 1:19-cv-00901-WJM-NRN Document 77 Filed 02/19/20 USDC Colorado Page 4 of 5 5 CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 19th day February 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system and U.S. Mail as follows: David Lane, Esq. Andrew McNulty, Esq. Helen S Oh, Esq. Killmer, Lane & Newman, LLP 1543 Champa St, Suite 400 Denver, CO 80202 303-571-1000 Phone 303-571-1001 Fax dlane@kln-law.com amcnulty@kln-law.com hoh@kln-law.com Attorneys for Plaintiff s/ April Barrett April Barrett, Legal Assistant Case 1:19-cv-00901-WJM-NRN Document 77 Filed 02/19/20 USDC Colorado Page 5 of 5