Gottfried v. University of Colorado Hospital Authority et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 23-cv-03240-PAB-STV
JOSEPH MICAH GOTTFRIED,
Plaintiff,
v.
UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, a body corporate and political
subdivision of the State of Colorado,
POUDRE VALLEY MEDICAL GROUP, LLC, a Colorado corporation d/b/a UCHealth
Medical Group, and
POUDRE VALLEY MEDICAL GROUP, INC., a Colorado non-profit corporation d/b/a
Poudre Valley Hospital Inc.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendants’ Rule 72 Objections to the October
11, 2024 Order [ECF No. 65]. Docket No. 66. Defendants object to the scope of the
magistrate judge’s order regarding the scope of plaintiff’s Rule 30(b)(6) notice.
I. 	BACKGROUND
On October 8, 2023, plaintiff Joseph Gottfried filed this case in state court.
Docket No. 5. On December 8, 2023, defendants removed the case to federal court.
Docket No. 1. On February 5, 2024, Dr. Gottfried filed his third amended complaint, in
which he brings claims based on violations of the Colorado Anti-Discrimination Act and
the Americans with Disabilities Act for defendants’ allegedly wrongful termination of him
as a psychiatrist at the Mountain Crest Behavioral Health Center due to his Parkinson’s
Disease. Docket No. 29 at 3–15, ¶¶ 10–96. Defendants assert that Dr. Gottfried was
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instead terminated because he showed colleagues a sexually violent video without
sufficient context. Docket No. 66 at 2–3.
On September 9, 2024, Dr. Gottfried sent defendants Plaintiff’s Notice of
F.R.C.P. 30(b)(6) Deposition for UCHA and PVMG. Docket No. 66-1 at 7. As part of
the notice, Dr. Gottfried asked defendants to produce a witness to be deposed on the
following matters:
E. Were there other disability discrimination claims by employees at the
Mountain Crest facility within the last seven years[.] If so, identify names, case
numbers, if any, provide a description of facts, and how resolved?
. . . .
Q. Other disabled individuals and how accommodated by UCHA and/or PVMG
within the last five years at the Mountain Crest location.
Id. at 3, 5.
On October 11, 2024, Magistrate Judge Scott T. Varholak held a hearing on
defendants’ objections to Dr. Gottfried’s Rule 30(b)(6) deposition notice. Docket No. 68
at 1. Judge Varholak overruled defendants’ objections, finding that Dr. Gottfried’s notice
was sufficiently particularized under Fed. R. Civ. P. 30(b)(6) for defendants to prepare a
deponent. Docket No. 68 at 9:17–20; Docket No. 65 at 1.
On October 25, 2024, defendants filed an objection to the magistrate judge’s
order. Docket No. 71.
II. 	LEGAL STANDARD
A. Federal Rule of Civil Procedure 72(a)
The district court reviews a magistrate judge’s order on a non-dispositive motion
under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); Fed.
R. Civ. P. 72(a). Under this standard of review, a magistrate judge’s finding should not
be rejected merely because the Court would have decided the matter differently. See
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Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). The clearly erroneous
standard requires a district court to affirm a magistrate judge’s decision unless, “on the
entire evidence[, the district court] is left with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464
(10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948));
see also Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006). “Under the ‘contrary
to law’ standard, the reviewing court sets aside the magistrate order only if it applied an
incorrect standard or applied the appropriate legal standard incorrectly.” Swan Glob.
Invs., LLC v. Young, No. 18-cv-03124-CMA-NRN, 2019 WL 2171457, at *3 (D. Colo.
May 17, 2019) (internal quotations, alterations, and citations omitted).
Discovery disputes are non-dispositive matters. Hutchinson v. Pfeil, 105 F.3d
562, 566 (10th Cir. 1997). Therefore, the Court will review Judge Varholak’s order
under the clearly erroneous or contrary to law standard. See 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a).
B. Federal Rule of Civil Procedure 30(b)(6)
Rule 30(b)(6) permits a party to name as the deponent a public or private
corporation. Fed. R. Civ. P. 30(b)(6). The rule requires the party noticing the deposition
to “describe with reasonable particularity the matters for examination,” id., and “a
measure of specificity tailored to the facts of the case is required when crafting the
topics for a Rule 30(b)(6) deposition.” Preitauer v. Am. Fam. Mut. Ins. Co., S.I., No. 20-
cv-00845-RM-SKC, 2020 WL 7711325, at *1 (D. Colo. Dec. 29, 2020) (citation omitted).
Moreover, “the topics of a Rule 30(b)(6) examination . . . must be relevant.” Erickson v.
City of Lakewood, No. 19-cv-02613-PAB-NYW, 2021 WL 4947231, at *3 (D. Colo. Sept.
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23, 2021) (citing Von Schwab v. AAA Fire & Cas. Ins. Co., No. 14-cv-00183-CMA-NYW,
2015 WL 1840123, at *2 (D. Colo. Apr. 21, 2015) (discovery directed at irrelevant
matters “imposes a per se undue burden”); Fed. R. Evid. 401 (defining relevant
evidence as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence.”)).
“In addition, the information sought in a deposition must be ‘proportional to the
needs of the case.’” Id. (quoting Fed. R. Civ. P. 26(b)). In considering whether the
discovery sought is proportional, the court weighs the importance of the discovery to the
issues at stake, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely
benefit. Id. “When the discovery sought appears relevant on its face, or the discovering
party has established relevance, the party resisting discovery bears the burden to
support its objections.” Id. (quoting Rios v. Ramage, 2020 WL 6701206, at *2 (D. Kan.
Nov. 13, 2020)).
III. 	ANALYSIS
Defendants raise three objections to Judge Varholak’s order regarding topics E
and Q, namely, that (1) Judge Varholak clearly erred in finding that defendants have
failed to demonstrate that it would be overly burdensome to prepare a witness to
discuss these topics; (2) Judge Varholak clearly erred in finding that the topics were
sufficiently specific; and (3) Judge Varholak failed to consider whether these topics were
relevant to plaintiff’s case.
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A. Objection One
Defendants argue that requiring them to prepare a witness to respond to topics E
and Q would be “unduly burdensome and disproportionate to the needs of the case”
because the topics potentially request information on hundreds of employees over a
period of years. Docket No. 66 at 7, 10. At the hearing, Judge Varholak stated that
its [defendants’] burden to demonstrate to me the burdensomeness. I have no
idea . . . one, how many people are at this facility; two, how many have a
disability; three, how many were accommodated. You haven’t satisfied that
burden. And . . . for all I know there might be two people who had a disability
and were accommodated. That’s not burdensome to prepare somebody on that.
So without that information, I just simply can’t conclude that it’s overly
burdensome.
Docket No. 68 at 13:23–14:8. Defendants present no argument as to how Judge
Varholak erred in concluding that defendants had failed to show burdensomeness
based on the lack of evidence presented to him. The Court agrees that at the hearing
defendants failed to show that preparing a deponent to respond to topics E and Q would
be unduly burdensome. Moreover, in their objection to Judge Varholak’s order,
defendants again claim only that they potentially employed hundreds of employees at
Mountain Crest Behavioral Health Center, but they provide no support for the
proposition that preparing a deponent would be burdensome based on how many of
these employees received accommodations (topic Q) or whether any other
discrimination claims were made by employees (topic E). Therefore, defendants have
not shown that Judge Varholak’s order was clearly erroneous or contrary to law and the
Court overrules the first objection.
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B. Objection Two
Defendants next object to Judge Varholak’s order on the grounds that he
misapplied the applicable standard under Rule 30(b)(6) and failed “to apply relevant
case law” when determining whether topics E and Q describe with reasonable
particularity the matters for examination. Id. at 6–7. Defendants rely on Preitauer, 2020
WL 7711325, at *1, for the proposition that the party taking the deposition must
“designate with painstaking specificity the particular subject areas that are intended to
be questioned, and that are relevant to the issues in dispute.” 1 First, defendants’
reference to then Magistrate Judge Crew’s order in Preitauer, 2020 WL 7711325, at *1,
does not show that Judge Varholak’s order was clearly erroneous or contrary to law
because Preitauer is not binding precedent. Clear Spring Prop. & Cas. Co. v. Arch
Nemesis, LLC, 2024 WL 3511456, at *5 (D. Kan. July 23, 2024) (“in the absence of
binding case law providing otherwise, a magistrate judge’s choice to follow non-binding
persuasive authority over other non-binding persuasive authority does not render her
1 Defendants cite to Jackson v. Minnesota Dep’t of Hum. Servs., 2022 WL
1261690, at *7 (D. Minn. Apr. 28, 2022), and Bat v. A.G. Edwards & Sons, Inc., 2005
WL 6776838, at *9 (D. Colo. Nov. 18, 2005), for the proposition that Dr. Gottfried’s
notice is overbroad. First, defendants did not present their arguments based on these
cases to Judge Varholak and have therefore waived their arguments. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in
objections to the magistrate judge's recommendation are deemed waived.”). Second,
defendants’ reliance on magistrate judge opinions, including an opinion from outside of
the District of Colorado, do not constitute binding precedent such that Judge Varholak’s
failure to consider these cases constituted clear error. Clear Spring Prop. & Cas. Co. v.
Arch Nemesis, LLC, 2024 WL 3511456, at *5 (D. Kan. July 23, 2024) (In “the absence
of binding case law providing otherwise, a magistrate judge’s choice to follow non-
binding persuasive authority over other non-binding persuasive authority does not
render her Order as legally deficient” (citation and alterations omitted)). Finally, these
case are distinguishable because they do not concern Rule 30(b)(6) notices. See
Jackson, 2022 WL 1261690, at *1; Bat, 2005 WL 6776838, at *1.
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Order as legally deficient” (citation and alterations omitted)); United States v. Ruiz-Gea,
340 F.3d 1181, 1187 (10th Cir. 2003) (discussing plain error) (“An error is clear and
obvious when it is contrary to well-settled law. In general, for an error to be contrary to
well-settled law, either the Supreme Court or this court must have addressed the
issue.”). Further, while Judge Crews did indicate that “painstaking specificity” may
sometimes be required in Rule 30(b)(6) notices, he also indicated that this was in
service of “a measure of specificity tailored to the facts of the case.” Preitauer, 2020
WL 7711325, at *1. As Judge Varholak noted at the hearing, “this isn’t that complex of
a case.” Docket No. 68 at 9:23–24. The Court agrees. Dr. Gottfried alleges he was
wrongfully terminated due to his progressive Parkinson’s Disease, defendants assert
that Dr. Gottfried was instead terminated for a legitimate non-discriminatory reason, and
Dr. Gottfried seeks discovery on whether defendants’ stated reason is pretextual. Id. at
9:23–10:5. In light of the nature of Dr. Gottfried’s claims, defendants have not shown
why greater specificity is required in this case. Finally, to the extent defendants argue
that the “painstaking specificity” standard is different from the “reasonable particularity”
standard found in Rule 30(b)(6), defendants cite no authority for the proposition that Dr.
Gottfried is subject to this higher standard. Fed. R. Civ. P. 30(b)(6).
As to topic E, defendants maintain that Dr. Gottfried’s request for information on
“disability discrimination claims” is overbroad because it does not specify whether such
claims include only those claims filed in court or whether they include complaints made
to human resources. Docket No. 66 at 6. Moreover, they claim that a request for a
“description of facts” is vague because it is not clear what facts Dr. Gottfried hopes to
discover. Id. The Court finds that Judge Varholak’s determination that topic E was
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stated with “reasonable particularity” was not clearly erroneous. The phrase “disability
discrimination claims” is sufficiently precise that defendants could prepare a deponent.
Moreover, to the extent defendants argue that preparing a deponent to also have
information regarding human resource complaints would be unduly burdensome, as
already discussed, defendants produced no evidence to support this proposition.
Finally, requesting a “description of facts” does not make an otherwise proper notice as
to a particular matter overbroad, given that, at the deposition, Dr. Gottfried can
reasonably expect a deponent to describe facts relevant to the identified topic.
As to topic Q, defendants assert that the topic is overbroad because Dr. Gottfried
“does not specify what, if anything beyond a name, he wants to know about the ‘other
disabled individuals.’” Id. at 9. Defendants incorrectly construe the topic; topic Q asks
for information about “how [these individuals were] accommodated by UCHA and/or
PVMG within the last five years at the Mountain Crest location.” Docket No. 66-1 at 5.
Finally, topics E and Q are limited both by the period of time (the last seven and five
years respectively), and the specific facility at issue (the Mountain Crest Behavioral
Health Center). Judge Varholak’s determination that topics E and Q were sufficiently
particularized under Fed. R. Civ. P. 30(b)(6) was not clearly erroneous or contrary to
law. The Court overrules the second objection.
C. Objection Three
Defendants argue that Dr. Gottfried has not demonstrated that topics E and Q
are relevant to his case. Docket No. 66 at 7. “The general test of discoverability is
whether the information sought by a discovery request is ‘relevant to any party’s claim
or defense.’” Gebremedhin v. Am. Fam. Mut. Ins. Co., No. 13-cv-02813-CMA-NYW,
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2015 WL 4272716, at *4 (D. Colo. July 15, 2015), objections overruled, 2015 WL
12967849 (D. Colo. Aug. 18, 2015) (quoting Fed. R. Civ. P. 26(b)(1)). “This is a broad
standard meant to allow the parties to discover the information necessary to prove or
disprove their cases.” Id. (citing Bagher v. Auto-Owners Insurance Company, No. 12–
cv–00980–REB–KLM, 2013 WL 5417127, at *5 (D. Colo. Sept. 26, 2013)). Defendants
argue that Dr. Gottfried has the burden of proving a prima facie case of discrimination
and that “[o]ne way to show that an adverse action, such as a termination, occurred
under circumstances giving rise to an inference of discrimination is to point to similarly
situated comparators outside of the plaintiff’s protected class who engaged in similar
conduct to the plaintiff but who were treated more favorably.” Docket No. 66 at 7 (citing
Green v. U.S. Anesthesia Partners of Colorado, Inc., 624 F. Supp. 3d 1201, 1214–15
(D. Colo. 2022), aff’d, 2023 WL 7015660 (10th Cir. Oct. 25, 2023)). Defendants
contend that information regarding other disabled employees is not relevant to Dr.
Gottfried’s case because he has not shown that these individuals are appropriate
comparators. Id. at 7–8. Dr. Gottfried responds that he is not seeking “comparator
evidence,” but rather “pattern evidence.” Docket No. 69 at 7. He argues that, “[i]n
indirect discrimination cases, the testimony of other employees about their treatment by
the defendant is relevant to the issue of the employer’s discriminatory intent.” Id. at 8
(citing Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990)).
Defendants did not present their argument that topics E and Q seek irrelevant
discovery to Judge Varholak either in the parties’ Joint Statement Regarding Discovery
Dispute Issues or at the hearing. As such, the Court finds that the issue is waived. See
Docket No. 66-3; Docket No. 68; Marshall, 75 F.3d at 1426 (“Issues raised for the first
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time in objections to the magistrate judge’s recommendation are deemed waived.”).
Moreover, even if the Court were to consider the issue, Judge Varholak’s order was not
clearly erroneous because topics E and Q both seek information relevant to Dr.
Gottfried’s discrimination claims; they address defendants’ treatment of other disabled
employees at the facility where he was terminated. Mickelson v. New York Life Ins. Co.,
460 F.3d 1304, 1315 (10th Cir. 2006) (evidence of other employees’ treatment is
relevant to the issue of employer’s discriminatory intent). As such, Dr. Gottfried has
satisfied his initial burden of showing relevance and defendants have failed to otherwise
support their objections. Erickson, 2021 WL 4947231, at *3 (“When the discovery
sought appears relevant on its face, or the discovering party has established relevance,
the party resisting discovery bears the burden to support its objections.”). Accordingly,
the Court overrules the third objection.
IV. 	CONCLUSION
It is therefore
ORDERED that Defendants’ Rule 72 Objections to the October 11, 2024 Order
[ECF No. 65] [Docket No. 66] are OVERRULED.
DATED January 21, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
____	_________	_ __________________________
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