HomeMy WebLinkAbout2018CV3204 - LORI FRANK V. CITY OF FORT COLLINS, TERENCE F. JONES AND JEROME SCHIAGER - 087 - DEFENDANT CITY OF FORT COLLINS MOTIN FOR DESIGNATION OF CONFIDENTIALITY PURSUANT TO PROTECTIVE ORDERIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-03204-RBJ-NRN
LORI FRANK,
Plaintiff,
vs.
CITY OF FORT COLLINS, a municipality; and
JEROME SCHIAGER, former Deputy Chief of Police, in his individual capacity,
Defendant.
DEFENDANT CITY OF FORT COLLINS MOTION FOR DESIGNATION OF
CONFIDENTIALITY PURSUANT TO PROTECTIVE ORDER
Defendant City of Fort Collins, by and through its counsel, Cathy Havener Greer and
Kathryn A. Starnella of Wells, Anderson & Race, LLC, and pursuant to D.C.COLO.LCivR. 7.2
and the Stipulated Protective Order approved by the Court on May 8, 2019 (Doc. 32) move for the
Court to designate as confidential certain portions of deposition testimony of Terry Jones, Erik
Martin, and Greg Yeager. In support of this Motion, the City states:
CERTIFICATION PURSUANT TO D.C.COLO.LCivR. 7.1(a).
Counsel for the City of Fort Collins emailed all counsel on January 29, 2020 a list of
portions of the deposition transcripts of Terry Jones, Erik Martin, and Greg Yeager to be
designated as confidential under paragraphs 4 and 5c of the protective order entered May 8, 2019,
(Doc#32). On February 6, 2020, Plaintiff’s counsel emailed that she did not agree to any portion
Case 1:18-cv-03204-RBJ-NRN Document 87 Filed 02/21/20 USDC Colorado Page 1 of 5
2
of the transcripts being designated confidential. Counsel for Plaintiff, counsel for Defendant
Schiager, and undersigned counsel discussed the issue and Plaintiff’s counsel opposes this Motion.
1. The Stipulated Protective Order defines Confidential Information at paragraph 4 to
include information, documents or material that are “protected by a statutory, regulatory, or
common law right of privacy or protection, or otherwise contain nonpublic personal, personnel,
employment…or other information implicating privacy interests…of the Plaintiff, any of the
Defendants, or other persons, including non-parties, providing discovery in this case…”.
2. The transcript portions designated by the City as confidential relate to information
about non-parties and to personnel information that is considered by and treated by the City as
confidential. The designated portions are attached as Exhibit A to the City’s Motion to Restrict
Public Access and seek to designte those transcript portions as Level 1 restricted documents
pursuant to D.C.COLO.LCivR 7.2.
3. Because the parties were unable after conferral to agree to the confidentiality
designation of any portions of the deposition transcripts of Mr. Jones, Mr. Martin, or Mr. Yeager,
the undersigned is obligated under the terms of the Protective Order to file an appropriate motion
requesting the Court to determine whether the disputed information should be subject to the terms
of the Protective Order and to show good cause for the confidentiality request. (Doc. 32, paragraph
13.).
4. This case involves allegations of gender discrimination and pay equity brought by
Plaintiff, a civilian employee of Fort Collins Police Services (FCPS). Terry Jones is the former
interim Police Chief of Fort Collins and Erik Martin is the financial analyst for FCPS. Out of a
one hundred page deposition transcript of Mr. Jones, the City seeks to designate only two and one-
Case 1:18-cv-03204-RBJ-NRN Document 87 Filed 02/21/20 USDC Colorado Page 2 of 5
3
half pages of transcript as confidential because those pages relate to a personnel issue involving a
former employee who was a sworn officer and is not a party. The deposition transcript of Mr.
Martin, who is not in Plaintiff’s chain of command, is forty-two pages long, and the City requests
that eight pages of transcript relating to testimony about a pending investigation into a personnel
matter raised by a non-party be designated confidential. The testimony of Mr. Yeager, the current
Deputy Chief of Police of FCPS, is one hundred nineteen pages and the City requests that a total
of 7 pages of transcript be designated as confidential. The portion of the transcript that the City
requests be designated as confidential relates to the same investigation that Mr. Martin testified
about.1
5. In addition to the protection afforded confidential information under the Stipulated
Protective Order, this Court has entered Orders protecting the confidentiality of personnel
information in this case, including an Order of Judge Jackson on September 16, 2019 concerning
certain investigative and personnel matters, originally designated “attorneys eyes only” and later
modified to “confidential” by an Order of Magistrate Judge Neureiter on November 4, 2019, who
also denied “additional production related to various investigations” (Doc. 54). Magistrate Judge
Neureiter also ordered that other documents are to continue to have a Level 1 restriction, over
Plaintiff’s objection. (Doc. 72 and Doc. 74). The order of the Magistrate Judge cited Seattle Times
Co. V. Rhinehart, 467 U.S. 20, 34-35 (1984), for the proposition that “pretrial depositions and
interrogatories are not public components of a civil trial.”
1 The City also joins in the Motion of Defendant Schiager to have certain portions of the testimony
of Mr. Yeager made confidential.
Case 1:18-cv-03204-RBJ-NRN Document 87 Filed 02/21/20 USDC Colorado Page 3 of 5
4
6. If the confidentiality designation is not applied to the deposition transcript portions,
these personnel matters concerning non-parties may become part of the public domain and could
be disclosed by Plaintiff to current and former employees of FCPS who would not have access to
such information absent this litigation.
7. Defendant City files herewith a Motion requesting a Level 1 restriction in
accordance with D.C.COLO.LCivR 7.2(b) with respect to the portions of transcripts, attached as
Exhibit A to the Motion to Restrict.
WHEREFORE, the City of Fort Collins respectfully moves this Court to restrict public
access to the portions of deposition transcripts that are the subject of this Motion for Designation
of Confidentiality Pursuant to Protective Order for the reasons stated above. A proposed Order is
filed herewith for the Court’s consideration.
Dated this 21st day of February, 2020.
Respectfully submitted,
s/ Cathy Havener Greer
___________________________
Cathy Havener Greer
Kathryn A. Starnella
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, CO 80290
T: 303-830-1212
Email: cgreer@warllc.com
Email: kstarnella@warllc.com
Case 1:18-cv-03204-RBJ-NRN Document 87 Filed 02/21/20 USDC Colorado Page 4 of 5
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 21, 2020, a true and correct copy of the above and
foregoing DEFENDANT CITY OF FORT COLLINS MOTION FOR DESIGNATION OF
CONFIDENTIALITY PURSUANT TO PROTECTIVE ORDER was electronically filed with
the Clerk of Court using the CM/ECF system, which will send notification of such filing to the
following email addresses:
Jennifer Robinson, Esq.
Robinson & Associates Law Offices, LLC
7900 E. Union Avenue, Suite 1100
Denver, CO 80237
Email: jrobinson@raemployment.com
Attorneys for Plaintiff
Robert M. Liechty, Esq.
Robert M. Liechty PC
1800 Gaylord St
Denver, CO 80206
Email: rliechty@crossliechty.com
Attorney for Plaintiff
David R. DeMuro, Esq.
Vaughan & DeMuro
720 South Colorado Boulevard
Penthouse, North Tower
Denver, CO 80246
Email: ddemuro@vaughandemuro.com
Attorneys for Defendant Schiager
Sara L. Cook, Esq.
Vaughan & DeMuro
111 South Tejon, Suite 545
Colorado Springs, CO 80903
T: 719-578-5500
Email: scook@vaughandemuro.com
Attorneys for Defendant Schiager
S/ Carolyn P. Boulette
Carolyn P. Boulette
Email: cboulette@warllc.com
Case 1:18-cv-03204-RBJ-NRN Document 87 Filed 02/21/20 USDC Colorado Page 5 of 5