Harrison v. Envision Management Holding, Inc. Board of Directors et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 21-cv-00304-CNS-MDB
ROBERT HARRISON, on behalf of himself and all other similarly situated individuals
on behalf of Envision Management Holding, Inc. ESOP, and
GRACE HEATH, on behalf of herself, the Envision Management Holding, Inc. ESOP, and
all other similarly situated individuals,
Plaintiffs,
v.
ENVISION MANAGEMENT HOLDING, INC. BOARD OF DIRECTORS,
ENVISION MANAGEMENT HOLDING, INC. EMPLOYEE STOCK OWNERSHIP PLAN
COMMITTEE,
ARGENT TRUST COMPANY,
DARREL CREPS, III,
PAUL SHERWOOD,
JEFF JONES,
AARON RAMSAY,
TANWEER KAHN,
NICOLE JONES, and
LORI SPAHN,
Defendants.
ORDER
Plaintiffs object to United States Magistrate Judge Maritza Dominguez Braswell’s
order, ECF No. 232, finding that there is no common legal interest between the Plaintiffs
and non-party Department of Labor (DOL). The Court has reviewed Plaintiffs’ objections,
ECF No. 234, and finds that Plaintiffs fail to demonstrate that Magistrate Judge
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Dominguez Braswell’s order was clearly erroneous or contrary to law. 1 The Court,
therefore, overrules Plaintiffs’ objections and affirms Magistrate Judge Dominguez
Braswell’s order.
I. 	BACKGROUND
A. 	General Background
This case concerns an employee stock ownership plan—“The Plan”—that allows
participating employees to acquire an interest in company stock. See ECF No. 91 (Am.
Comp.). The Plan is subject to the Employment Retirement Security Act of 1974 (ERISA),
and all seven of Plaintiffs’ claims are brought under ERISA. See id., ¶¶ 115–78.
Plaintiff Robert Harrison, a former employee of Defendant Envision Management
Holding, initiated this action on January 29, 2021, by filing a class action complaint. See
ECF No. 1. Plaintiff Grace Heath, also a former employee of Envision, joined Plaintiff
Harrison in the amended complaint. ECF No. 91. Plaintiffs assert causes of actions
against various Defendants and seek plan-wide relief.
B. 	Current Dispute
The DOL provided investigative materials to Plaintiffs under a common interest
agreement (CIA). See ECF No. 221-2. The material included DOL Interview Reports. The
current dispute concerns whether the common interest doctrine protects against the
disclosure of these DOL Interview Reports or other DOL documents in this litigation. In
her order, Magistrate Judge Dominguez Braswell thoroughly and accurately describes
the dispute, the parties’ positions, and the DOL’s position. ECF No. 232 at 3–8.
1 This Order will effectively address Plaintiff’s separate objection to ECF No. 202.
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In short, as part of a separate investigation, the DOL investigated several
employee stock ownership plans (ESOPs), including Envision’s ESOP. ECF No. 220-1.
The DOL conducted interviews and prepared summaries of those interviews—the DOL
Interview Reports. Id. Some of the DOL Interview Reports concern the individual
Defendants in this action. Id. The DOL shared certain DOL Interview Reports with
Plaintiffs, who now object to their disclosure, arguing that the CIA protects the documents
from disclosure. See ECF No. 212 (Plaintiffs’ Objection to Magistrate Judge Dominguez
Braswell’s separate order granting Defendants’ motion to compel production of DOL
Interview Reports).
The DOL filed a Statement of Interest (DOL SOI). See ECF No. 220. Relying on
the CIA, the DOL asserts various privileges and protections over the information it shared
with Plaintiffs, including work product protection, the deliberative process privilege, and
the law enforcement privilege. Id. The DOL represents that its “investigation is still open,
and DOL has not yet made a disposition decision.” Id.
II. 	MAGISTRATE JUDGE ORDER
Given the numerous discovery disputes over documents that the DOL provided
Plaintiffs, the Court ordered Plaintiffs to file a motion on whether the common interest
doctrine applies to their information-sharing arraignment. ECF No. 219. The Court
referred the issue to Magistrate Judge Dominguez Braswell for determination. Id.; ECF
No. 222. In a thorough and well-reasoned decision, Magistrate Judge Dominguez
Braswell determined that there is no common legal interest between the DOL and
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Plaintiffs, and that the DOL cannot rely on the CIA to protect against waiver. ECF No. 232
at 10–17.
III. 	LEGAL STANDARD
Federal Rule of Civil Procedure 72(a) provides a party the opportunity to object to
a magistrate judge’s order on a non-dispositive pretrial matter. “The district judge in the
case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); Allen v. Sybase, Inc., 468
F.3d 642, 658 (10th Cir. 2006) (district courts must “defer to the magistrate judge’s ruling”
on non-dispositive matters “unless it is clearly erroneous or contrary to law” (citations
omitted)). “[M]ere disagreement with [a] Magistrate Judge[’s] recommendation does not
make the recommendation incorrect or outside the bounds of his authority.” Witt v.
Colorado, No. 22-CV-02242-CNS-NRN, 2023 WL 345960, at *1 (D. Colo. Jan. 20, 2023)
(quotation marks and citation omitted).
IV. 	ANALYSIS
Plaintiffs object to Magistrate Judge Dominguez Braswell’s order on four grounds,
arguing that she
(i) misconstrues a handful of sentences in the Department of
Justice’s (“DOJ”) Statement of Interest as being antithetical to
Plaintiffs’ 	legal 	interest; 	(ii) 	misunderstands 	the 	interest
shared by DOL and Plaintiffs as being financial instead of
legal; (iii) recognizes that pending litigation is not required to
establish 	a 	common 	interest 	yet 	rejects 	Plaintiffs’ 	legal
authority on this basis; and (iv) relies on two materially
distinguishable 	decisions 	to 	reject 	the 	Common 	Interest
Agreement (“CIA”).
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ECF No. 234 at 1 (summarizing their four objections). The Court will first address a glaring
omission in Plaintiffs’ objection: that the DOL did not object to Magistrate Judge
Dominguez Braswell’s order. The Court will then address each of Plaintiffs’ objections in
turn.
A. 	The DOL Did Not to Object to Magistrate Judge Dominguez Braswell’s
Order
No party disputes Magistrate Judge Dominguez Braswell’s conclusion that the
work product at issue belongs to the DOL, a non-party. Defendants argue that, because
the DOL did not object to Magistrate Judge Dominguez Braswell’s order despite filing a
SOI, the Court should summarily overrule Plaintiffs’ objection. ECF No. 242 at 3.
Magistrate Judge Dominguez Braswell previously questioned whether Plaintiffs
have standing to assert the DOL’s privileges on its behalf. ECF No. 207 at 4 (analyzing
disclosure requirements under Federal Rule of Civil Procedure 26(b)(3) and expressing
“doubt about Plaintiffs’ ability to persist on behalf of a non-party”); see also 8 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed. 2024)
(“Documents prepared for one who is not a party to the present suit are wholly
unprotected by Rule 26(b)(3) even though the person may be a party to a closely related
lawsuit in which he will be disadvantaged if he must disclose in the present suit.”); Lee v.
City of Midland, No. 7:22-CV-0185-BL, 2024 WL 4005959, at *8 (W.D. Tex. Feb. 15, 2024)
(rejecting argument that non-party may invoke work product protection because “Nodolf
is not a party to the instant case, and while the documents claimed to be protected work
product were prepared to prosecute Plaintiffs in a separate criminal action, they were not
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prepared for any party in this case (Plaintiffs or Defendants) in anticipation of this
litigation”).
The Court agrees that the DOL’s decision not to challenge Magistrate Judge
Dominguez Braswell’s order ends the issue. It is the DOL’s work product at issue, and
Plaintiffs have made no argument that they have standing to object on the DOL’s behalf. 2
However, out of caution, the Court will address each of Plaintiffs’ objections.
B. 	The DOL and Plaintiffs’ Purported Common Legal Strategy
Plaintiffs argue that Magistrate Judge Dominguez Braswell incorrectly concluded
that the DOL’s and Plaintiffs’ interests are not “common.” ECF No. 234 at 5. They take
issue with her reliance (in part) on the DOJ’s statement that it has “no position on the
merits of this case” as an admission that the DOL believes Plaintiffs’ claims are meritless.
Id. at 6. Plaintiffs cite one out-of-circuit case to support their argument that the DOL and
Plaintiffs share a very broad common legal interest of “safeguard[ing] the Envision ESOP
and ensur[ing[ that Argent and the other Defendants in this litigation comply with ERISA.”
ECF No. 234 at 7 (citing Perez v. Mueller, No. 13-CV-1302, 2016 WL 6882851, at *6 (E.D.
Wis. Nov. 22, 2016), report and recommendation adopted, No. 13-CV-1302-PP, 2016 WL
7441661 (E.D. Wis. Dec. 27, 2016)). The Court is not persuaded.
2 The Court acknowledges that Federal Rule of Civil Procedure 72(a) only permits parties to file objections.
Fed. R. Civ. P. 72(a) (“A party may serve and file objections to the order within 14 days after being served
with a copy.”). The Court, however, would not have prevented the DOL from filing an objection had it sought
leave to do so. Indeed, the DOL previously filed a notice of its “potential participation” the same day Plaintiffs
filed its first objection to Magistrate Judge Dominguez Braswell’s narrower order, ECF No. 202, requiring
Plaintiffs to produce the DOL Interview Reports. See ECF No. 213 (notice). The DOL’s silence now is
somewhat telling.
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Magistrate Judge Dominguez Braswell correctly summarized the DOL’s role and
position in this case. The “DOL is not a party to this case,” ECF No. 213 at 2 (government’s
notice), the “DOL’s investigation is still open,” id., the DOL is still “considering whether to
participate in this litigation,” id. at 3, the “DOL has not yet made a disposition decision,”
ECF No. 220 at 1, and the DOL expressly “takes no position on the merits of the case,”
id. at 1. 3 These positions allowed her to correctly determine that the DOL and Plaintiffs
failed to make a showing that they are “working towards a common legal strategy.” ECF
No. 232 at 10. Her decision to reject the unsupported, conclusory argument that the DOL
and Plaintiffs share a common interest is not clearly erroneous. Id. at 11 (analyzing CIA;
DOL SOI; and declarations attached to DOL SOI, which state in conclusory terms that the
entities share a common interest but failing to describe that interest).
Further, Perez v. Mueller is plainly distinguishable because the Secretary of
Labor—the appointed official overseeing the DOL—was a named plaintiff in that action.
Indeed, DOL Secretary Perez initiated the lawsuit. Mueller, 2016 WL 6882851, at *1
(“United States Secretary of Labor Thomas E. Perez filed the present action alleging that
the defendants violated provisions of the Employee Retirement Income Security Act of
1974 (ERISA) with respect to actions they undertook regarding an employee stock
ownership plan (ESOP) sponsored by Omni Resources, Inc.”). It is thus not a leap to
3 In its July 2, 2024 notice, the DOL states that the “United States anticipates that a determination whether
the Department of Justice will participate in this matter and file a substantive brief (if it decides to do so) will
made by July 16, 2024. . . . The United States anticipates that it will be prepared to advise the Court of its
position no later than July 16, 2024.” ECF No. 213 at 3; see also ECF No. 218 (supplemental notice moving
date to July 23, 2024). Now, over five months later, besides filing its SOI, where it notified the Court that its
investigation is “ongoing” and that it “takes no position on the merits of the case,” the DOL has not advised
the Court of its position—and it certainly did not object or respond to Magistrate Judge Dominguez
Braswell’s order finding that there is no common legal interest between the DOL and Plaintiffs.
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assume that there, unlike here, the DOL had “made a disposition decision” and took a
“position on the merits of the case.” See ECF No. 220 at 1–2. The common interest
relationship analyzed in Mueller is plainly distinguishable from the purported common
interest relationship here between the DOL and Plaintiffs. See ECF No. 232 at 16–17
(finding that the DOL’s stated positions make a “common legal strategy with Plaintiffs not
only improbable, but impossible,” and criticizing the DOL for attempting to have it both
ways, stating that the DOL “cannot on the one hand, claim it has no view of the merits of
this litigation, while on the other hand, align itself with one set of litigants to share
information in confidence”).
Plaintiffs have failed to show that Magistrate Judge Dominguez Braswell’s finding
that the DOL and Plaintiffs do not share a common legal strategy—under the facts
presented in this case—is clearly erroneous or is contrary to law. Plaintiffs’ first objection
is overruled.
C. 	The DOL and Plaintiffs’ Purported Shared Legal Interest
Plaintiffs argue that Magistrate Judge Dominguez Braswell wrongly characterized
the DOL and Plaintiffs’ common interest in restoring the ESOP’s losses as being solely
financial, 	rather 	than 	legal, 	in 	nature. 	ECF 	No. 	234 	at 	8. 	They 	argue 	that 	this
characterization ignores other legal interests that the DOL and Plaintiffs share and
misunderstands the equitable relief available to the DOL and Plaintiffs in restoring the
ESOP’s losses. Id.
For the common interest privilege to apply, the parties’ shared interests must be
legal in nature; a financial interest is insufficient for the privilege to attach. Martinez v.
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Nationwide Affinity Ins. Co. of Am., No. 121CV02495CNSSKC, 2023 WL 4706752, at *5
(D. Colo. July 24, 2023) (“It is critical that the parties’ respective shared interests be ‘legal’
interests; neither common financial interests nor a common adversary will alone suffice.”
(collecting caselaw)). Here, Plaintiffs expressly seek to restore all losses resulting from
the alleged fiduciary breaches. ECF No. 91 at 45–46. And although they may seek other
relief, see, e.g., id. (seeking order to “appoint a new independent fiduciary to manage the
Envision ESOP and order the costs of such independent fiduciary be paid for by
Defendants”), this objection challenges just one of four of Magistrate Judge Dominguez
Braswell’s observations of the DOL Demand Letter. 4 See ECF No. 232 at 12 (identifying
four reasons why Plaintiffs’ articulated significance of the DOL Demand Letter is
overstated).
Plaintiffs’ instant objection does little to cast doubt on Magistrate Judge Dominguez
Braswell’s reasoned and thorough analysis determining that the DOL and Plaintiffs do not
share a common legal interest. See id. at 11–13. Plaintiffs’ narrow objection fails to show
that that her conclusion is “contrary to law.” The Court overrules Plaintiffs’ second
objection.
4 The DOL Demand Letter has been a point of contention in this action. The DOL issued the letter to
Defendant Argent on May 20, 2022. See ECF No. 211-2. The letter accuses Defendant Argent of breaching
its fiduciary duties with respect to six different ESOPs—one being The Plan (the other five are not relevant
to this action). Id. Plaintiffs sought a copy of the DOL Demand Letter from Defendant Argent, but the parties
fought over the appropriate redactions. ECF No. 232 at 4. When Magistrate Judge Dominguez Braswell
intervened, she learned that Plaintiffs separately obtained the unredacted Demand Letter directly from the
DOL. Id. That was when the Court learned (Defendants learned the same just a month prior) that the DOL
was providing information to Plaintiffs. Id. This is when the parties raised their dispute over the DOL
Interview Reports, prompting Defendant Argent to move to compel their production. Id.; ECF No. 164.
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D. 	Plaintiffs’ Caselaw
Plaintiffs 	next 	argue 	that 	Magistrate 	Judge 	Dominguez 	Braswell 	erred 	in
distinguishing Plaintiffs’ caselaw in support of a common interest on the basis that in those
cases, the DOL “already filed litigation.” ECF No. 234 at 9 (quoting ECF No. 232 at 14).
The Court is not persuaded.
In 	distinguishing 	Plaintiffs’ 	caselaw, 	Magistrate 	Judge 	Dominguez 	Braswell
correctly explained that litigation, or impending litigation, is not required to establish a
common legal interest. ECF No. 232 at 14. It cannot be ignored, however, that each of
the cases cited by Plaintiffs—Perez v. Mueller, Perez v. Brain, and Perez v. Clearwater
Paper Corp.—involve cases brought by then-DOL Secretary Perez. Magistrate Judge
Dominguez Braswell relied on this critical, but not determinative, fact to find that the DOL
“had already reached conclusions about its claims and legal strategy” in those cases,
which is not the case in the present action. Id. Plaintiffs have failed to show that her
reasoned analysis, distinguishing the facts in Mueller, Brain, and Clearwater Paper Corp.
from their own situation, is clearly erroneous or contrary to law. Accordingly, Plaintiffs’
third objection is overruled.
E. 	Magistrate Judge Dominguez Braswell’s Reliance on McMorgan and
Georgia 5
In 	their 	final 	objection, 	Plaintiffs 	argue 	that 	McMorgan 	and 	Georgia 	are
distinguishable, and that Magistrate Judge Dominguez Braswell’s reliance on those
5 See McMorgan & Co. v. First California Mortg. Co., 931 F. Supp. 703 (N.D. Cal. 1996), and Georgia v.
United States Dep’t of Just., 657 F. Supp. 3d 1 (D.D.C. 2023), appeal docketed, No. 23-5083 (D.C. Cir.
April 24, 2023).
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opinions constitutes error. ECF No. 234 at 8–10. Once again, the Court disagrees.
It is true that McMorgan and Georgia are somewhat distinguishable. But Magistrate
Judge Dominguez Braswell acknowledged the factual differences. See ECF No. 232 at
15–16. She did not confuse the facts of those cases. In any event, there is no indication
that her reliance on those cases swayed her ultimate determination on whether the DOL
and Plaintiffs share a common legal interest. Rather, she cited these two cases to reject
Plaintiffs’ contention that “[c]ourts routinely uphold a common interest privilege between
DOL and private plaintiffs.” Id. at 15 (quoting ECF No. 221 at 3). The fact remains that
Plaintiffs have not cited a single case with facts analogous to those presented here.
Plaintiffs have not shown that Magistrate Judge Dominguez Braswell’s citation to
McMorgan and Georgia was clearly erroneous or contrary to law. Like the other three
objections, the Court overrules Plaintiffs’ final objection.
F. 	Plaintiffs’ Stay Request
Without any argument or support, Plaintiffs “request that the Court maintain the
stay of the Order to allow Plaintiffs to seek a writ of mandamus in the 10th Circuit” should
it overrule Plaintiffs’ objection. ECF No. 234 at 11. Defendants oppose this request, noting
that a stay “would only serve to further delay resolution of this lawsuit (including the
additional discovery that Judge Braswell previously provided that Defendants would have
the opportunity to pursue, see D.E. 202; D.E. 205).” ECF No. 242 at 10 n.2.
To start, Plaintiffs are not permitted to seek a stay in an objection. The Local Rules
and Uniform Practice Standards both make clear that requests for distinct actions must
be made in separate motions. D.C.COLO.LCivR 7.1 (d) (“A motion shall be filed as a
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separate document.”); CNS Civ. Practice Standard 7.1A(a)(5) (“All requests for the Court
to take distinct actions must be contained in separate, written motions. For instance, if a
party seeks to move to dismiss and stay discovery pending the motion to dismiss, the
party must file two separate motions.”). Regardless, the Court considers the request for
a stay to avoid further delay in this case.
“[A] 	writ 	of mandamus 	is a drastic 	remedy, and is to be invoked only in
extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th
Cir. 2009) (internal quotation marks omitted). The Tenth Circuit will “grant a writ only when
the district court has acted wholly without jurisdiction or so clearly abused its discretion
as to constitute usurpation of power.” Id. (internal quotation marks omitted). “Three
conditions must be met before a writ of mandamus may issue”: (1) the petitioner “must
have no other adequate means to attain the relief [she] desires”; (2) “the petitioner must
demonstrate that [her] right to the writ is clear and indisputable”; and (3) “the issuing court,
in the exercise of its discretion, must be satisfied that the writ is appropriate under the
circumstances.” Id. at 1187 (internal quotation marks omitted). The standards are the
same for a writ of prohibition. In re Martinez, No. 12-2059, 2012 WL 13331974, at *1 (10th
Cir. May 1, 2012) (citing Univ. of Tex. v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996)).
Plaintiffs have not and cannot show that “extraordinary circumstances” warrant this
“drastic remedy.” For the reasons above, the Court is dubious at best that Plaintiff can
demonstrate that their “right to the writ is clear and indisputable.” This is particularly true
here, where Plaintiffs’ position on the importance of the DOL documents has shifted. As
Magistrate Judge Dominguez Braswell notes in a previous order, “Plaintiffs have tried to
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soften the relevance of the DOL investigation, arguing that Plaintiffs’ reliance on the
DOL’s work product is limited.” ECF No. 207 at 4. Although Magistrate Judge Dominguez
Braswell ultimately rejected Plaintiffs’ argument on the limited import of these files, see
id., 	Plaintiffs’ 	inconsistent positions 	strongly 	favor 	denying Plaintiffs’ 	stay 	request.
Moreover, the Court is not satisfied that a writ is appropriate under the circumstances of
this case, and a stay will lead to further delay.
V. CONCLUSION
In sum, Plaintiffs cannot show that Magistrate Judge Dominguez Braswell’s order
was 	clearly 	erroneous 	or 	contrary 	to 	law. 	Plaintiffs’ 	objection, 	ECF 	No. 	234, 	is
OVERRULED, and the Court AFFIRMS Magistrate Judge Dominguez Braswell’s order,
ECF No. 232. For the same reasons articulated in this order, the Court also OVERRULES
Plaintiff’s earlier objection, ECF No. 212, and AFFIRMS her earlier order, ECF No. 202. 6
Plaintiffs’ request to stay this litigation pending the filing of a writ of mandamus is DENIED.
The Court now lifts the stay entered by Magistrate Judge Dominguez Braswell
pending resolution of Plaintiffs’ objections. See ECF No. 232 at 17. Consistent with
Magistrate Judge Dominguez Braswell’s orders, ECF Nos. 202, 232, Plaintiffs shall
produce the DOL Interview Reports within five days of this order, and the parties shall file
a Joint Status Report with Magistrate Judge Dominguez Braswell within five days of this
order.
6 Plaintiffs also challenged Magistrate Judge Dominguez Braswell’s narrower order, ECF No. 202, requiring
Plaintiffs to produce the DOL Interview Reports. As Magistrate Judge Dominguez Braswell aptly notes, in
finding that there is no common legal interest between the DOL and Plaintiffs, this later ruling “offers another
basis for [] disclosure [of the DOL Interview Reports] and it will impact any other documents the DOL shared
with Plaintiffs.” ECF No. 232 at 2 n2.
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DATED this 13th day of January 2025.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
BY THE	HE	HE	HE	E C	C	C	C	COURT:
__	__	__	____	___ __	_ _______	__	__	____	__	__ __	____ ___________	____ _
C	C	C	Ch	C	C	C	C	C	C	C	C arlotteeee N.	N	N	N S	Swe	w	w	w	w eney
United S	S	S	Sta	ta	ta	ta	tate	te	te	te	t ssss Districttt JJJJudge
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