AECOM Technical Services, Inc. v. Flatiron AECOM, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-2811-WJM-KAS
AECOM TECHNICAL SERVICES, INC.,
Plaintiff-Counterclaim Defendant,
v.
FLATIRON | AECOM, LLC,
Defendant-Counterclaim Plaintiff.
ORDER DENYING NON-PARTY COLORADO DEPARTMENT OF
TRANSPORTATION’S MOTION TO QUASH AND FOR PROTECTIVE ORDER
FROM SUBPOENA TO APPEAR AND TESTIFY
Before the Court is Non-Party Colorado Department of Transportation’s (“CDOT”)
Motion to Quash and for Protective Order to Appear and Testify (“Motion”). (ECF No.
361.) CDOT states that Defendant Flatiron AECOM, LLC (“Flatiron”) “does not oppose
CDOT’s Motion and request for protective order, without waiver of any of its rights to
examine Mr. Keleman/CDOT’s witness in the event that the Court denies CDOT’s
Motion.” (ECF No. 361 at 2.) Flatiron did not file a response. Plaintiff AECOM
Technical Services, Inc. (“AECOM”) filed a response in opposition. (ECF No. 368.)
Based on the Court’s numerous prior Orders, the Court presumes that the parties
are familiar with the facts and procedural history leading to the filing of the Motion and
does not repeat them here. For the following reasons, the Motion is denied.
I. LEGAL STANDARD
The Motion is filed pursuant to Federal Rule of Civil Procedure 45(d)(3), which
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regulates motions to quash or modify subpoenas and states in relevant part:
(A) 	When Required. On timely motion, the court for the
district where compliance is required must quash or
modify a subpoena that:
. . .
(iii) 	requires disclosure of privileged or other
protected matter, if no exception or waiver
applies; or
(iv) 	subjects a person to undue burden.
(B) 	When Permitted. To protect a person subject to or
affected by a subpoena, the court for the district
where compliance is required may, on motion, quash
or modify the subpoena if it requires:
. . .
(ii) 	disclosing an unretained expert’s opinion or
information that does not describe specific
occurrences in dispute and results from the
expert’s study that was not requested by a
party.
Fed. R. Civ. P. 45(d)(3) (italics in original).
II. ANALYSIS1
CDOT, a non-party to this civil action, requests that the Court quash the
subpoena issued by AECOM and enter a protective order releasing Michael Keleman
from any obligation to appear and testify at the jury trial. (ECF No. 361 at 9.) Keleman
is the former C-470 Project Engineer for CDOT, and AECOM subpoenaed him to testify
regarding matters in the course and scope of his employment. (Id. at 1.) Broadly
speaking, CDOT argues that the subpoena “subjects [it] to undue burden, including, but
1 AECOM’s response often cites ECF No. 359, which was CDOT’s initial motion to
quash. However, CDOT filed a corrected Motion at ECF No. 361, which the Court concludes is
the operative motion.
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not limited to, reasonable anticipation of topics that call for testimony which is either
privileged or constitutes unretained Fed. R. Civ. P. 702 expert opinions, neither of which
are permissible under Fed. R. Civ. P. 45.” (Id.) Additionally, CDOT contends that
“undue burden exists given CDOT’s unique position as a non-party, without legal
counsel able to protect Mr. Keleman/CDOT’s rights given legal complexities outside this
action.” (Id. at 1–2.)
As an initial matter, CDOT lists several pending lawsuits related to the C-470
Project, including:
• 	CDOT filed a lawsuit against Flatiron in Denver District Court Case No.
2022CV32182 (“CDOT’s Denver Case”);
• 	CDOT’s Denver Case is on an administrative stay due to Flatiron’s
American Arbitration Association (“AAA”) Case No. 01-21-0003-8675
(“Arbitration”), originating from an Order in Arapahoe County District Court
Case No. 2020CV031875 (“Arapahoe Case”);
• 	There is an Office of Administrative Courts Case, Case No. HW-2021-
0002 (“OAC Case”); and
• 	Flatiron has filed a new lawsuit in Denver District Court, Case No.
2023CV033243 alleging fraud claims against AECOM (“Denver Fraud
Case”) (see ECF No. 304, Ex. 1 at 1-24).
(Id. at 3.)
With respect to its specific concerns about the Motion, CDOT explains that
[t]opics of improper privileged testimony can reasonably be
anticipated to include: testimony regarding Flatiron’s “SREA”
(see, e.g., ECF N[o]. 354), testimony regarding what has
been termed a “Close Out REA”, topics related to “fraud”
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allegations including allegation regarding violation(s) of the
Colorado False Claims Act by Flatiron, testimony related to
“other disputes with Flatiron subcontractors” (see, e.g.[,]
ECF No. 354, at 8–9).
(Id. at 7.)
Further, CDOT anticipates that “improper unretained expert testimony may be
elicited through Mr. Keleman under the guise of facts and foundation,” as “Mr. Keleman
is a Professional Engineer and served as the C-470 Project Engineer for CDOT [for] a
period of time.” (Id. at 7–8.) CDOT predicts that “questioning Mr. Keleman on a CDOT
project letter, following the introductory, facial, and foundational questions, questioning
is highly likely to advance into subtly improper expert testimony, and protected areas
related to CDOT’s decision-making and CDOT’s basis for positions contained therein.”
(Id. at 8.) For instance, CDOT anticipates that “there will be questioning into Mr.
Keleman’s opinions as to ‘why’ the C-470 Project was not completed on time, which is
expert in nature.” (Id.)
Finally, CDOT expresses concern that if the subpoena is not quashed, AECOM
and Flatiron “get an opportunity to question a putative agent of CDOT without counsel,
which will likely trigger future contests on whether Mr. Keleman is even an agent for
CDOT, or can serve as a conduit for contested expert opinions, and certainly whether
he could be deemed to possibly waive areas of privilege that CDOT absolutely expects
to maintain.” (Id. at 8.)
In response, AECOM argues that CDOT lacks standing to move for a protective
order or to quash the subpoena because it is directed to Keleman individually, not
CDOT, and Keleman is no longer a CDOT employee. (ECF No. 368 at 2.) With respect
to CDOT’s concerns about privileged and expert testimony, AECOM contends that
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these concerns are much ado about nothing, as it does not intend to elicit privileged or
expert testimony from Keleman. (Id. at 2.) AECOM states that it is “agreeable with
having counsel to CDOT present at trial during Mr. Keleman’s examinations.” (Id. at 6.)
AECOM also argues that the fact that Keleman’s testimony may “substantively
prejudice CDOT in later litigation is not a basis under the Rules to preclude his
testimony, or to ‘protect’ CDOT.” (Id. at 5.) AECOM points out that there is no
argument that the subpoena will subject Keleman to any undue burden, as it does not
require him to spend hours reviewing and producing numerous documents; rather, the
subpoena merely requires him to attend one day of trial and testify for a few hours or
less.
Upon due consideration of both parties’ arguments, the Court denies the Motion.
As AECOM argues, Rule 45(d) does not protect CDOT against concerns that Keleman’s
testimony may negatively affect its position in ancillary litigation. (Id. at 5.) Further, the
subpoena is not unduly burdensome for CDOT, as it is not even directed to CDOT, but
to its former employee. See Strike 3 Holdings, LLC v. Doe, 337 F. Supp. 3d 246, 252
(W.D.N.Y. 2018) (“Courts have consistently rejected the position that a party who is not
the recipient of a subpoena can nonetheless challenge that subpoena because it
creates an undue burden. . . . In other words, the undue burden contemplated by Rule
45 relates to the burden . . . on the recipient of a subpoena.”) (internal citations and
quotations omitted). There is no basis for the Court to conclude the subpoena is unduly
burdensome for Keleman himself.
With regard to the most compelling arguments CDOT raises, AECOM explicitly
states in its response that it does not intend to seek to elicit privileged or expert
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testimony from Keleman. (ECF No. 368 at 6, 8.) The Court will hold AECOM to that
representation. And, as a further prophylactic measure against improper testimony,
AECOM has no objection to counsel representing Keleman at trial and making any
objections counsel deems appropriate at that time. Accordingly, the Court will permit
Keleman to testify with his own counsel present.
III. CONCLUSION
For the reasons explained above, the Court ORDERS that:
1. 	Non-Party Colorado Department of Transportation’s Motion to Quash and
for Protective Order to Appear and Testify (ECF No. 361) is DENIED; and
2. 	During his trial testimony, Mr. Keleman may have counsel of his choosing,
who will be allowed to make appropriate objections.
Dated this 26 th day of January, 2024.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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