Civil Action No. 06-cv-01964-CMA-CBS STEVEN HOWARDS, v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello VIRGIL D. GUS REICHLE, JR., in his individual and official capacity, KRISTOPHER MISCHLONEY, in his individual and official capacity, DANIEL McLAUGHLIN, in his individual and official capacity, DAN DOYLE, in his individual and official capacity, and, ADAM DANIELS, in his individual and official capacity, Defendants. ORDER REVERSING MAGISTRATE JUDGE S DENIAL OF PLAINTIFF S RENEWED MOTION TO SERVE SUBPOENA This matter is before the Court on Plaintiff Steven Howards Objection to the Magistrate Judge s Denial of Plaintiff s Renewed Motion to Serve SUBPOENA (Doc. # 153). For the reasons described below, the Magistrate Judge s Order Denying Plaintiff s Renewed Motion For United States Marshals to Serve Subpoena (Doc. ## 148 & 151) is REVERSED. Plaintiff shall be allowed to serve and depose Mr. Cheney in accordance with the Federal Rules of Civil Procedure and this Order. FACTUAL BACKGROUND This is civil rights lawsuit. Mr. Howards case involves a run-in part verbal, part physical between himself and former Vice President Dick Cheney. The exact nature of the confrontation between Mr. Howards and Mr. Cheney is in some dispute.
Everybody seems to agree that on June 16, 2006, Mr. Howards approached Vice President Cheney in Beaver Creek, Colorado, and said something like, Your policies in Iraq are disgusting. The parties also agree that there was some type of physical contact between Mr. Howards and Mr. Cheney. However, the exact nature of the contact between the two men is up for debate. Some witnesses indicate that Mr. Howards approached Mr. Cheney from the front, some say he approached Mr. Cheney from behind, and there is also a question as the force of the physical contact between Mr. Howards and Mr. Cheney, e.g., whether it was a light touch on the shoulder or a heavy-handed clap on the back. In any event, Mr. Howards promptly walked away from Mr. Cheney without any further questioning or protest from the ex-vice President or his staff. Mr. Howards picked up his son at a nearby piano recital and walked back through the public area where Mr. Cheney was still standing. This time, however, Secret Service agents arrested Mr. Howards for his previous assault on the Vice President. Secret Service and Eagle County officials detained Mr. Howards but eventually released him without the filing of criminal charges. Mr. Howards has sued a group of United States Secret Service Agents over his arrest, which he claims violated his First and Fourth Amendments rights. He filed a Complaint on October 3, 2006, and the case has proceeded slowly since then. 2
PROCEDURAL BACKGROUND AND THE RENEWED MOTION FOR MARSHALS TO SERVE MR. CHENEY To better ascertain what happened between Mr. Howards and the Vice President, Mr. Howards sought to take the depositions of the witnesses involved, including the Secret Service Agents, Eagle County Sheriff Officers, and the alleged victim, Mr. Cheney. Because Mr. Howards believed that Mr. Cheney s position of Vice President presented difficulties precluding typical service of process of a subpoena, Mr. Howards filed an Unopposed Motion requesting the Court to order U.S. Marshals to serve Mr. Cheney with a subpoena compelling Mr. Cheney to appear for a deposition (Doc. # 73). Defendants did not take a position on the Motion, but the Office of the Vice President vigorously opposed the taking of Mr. Cheney s deposition (Doc. # 76). After some discussion at a motions hearing on the problems with serving Mr. Cheney, and in response to argument from the Office of the Vice President, the Magistrate Judge largely moved over the actual relief requested by Mr. Howards motion (i.e., an order directing U.S. Marshals to serve Mr. Cheney) and instead focused on the issue of whether Mr. Cheney should even be deposed in this matter, or whether the deposition would be too burdensome. After holding a hearing on the issue, the Magistrate Judge denied Mr. Howards Motion without prejudice on April 15, 2008 (Doc. # 111). 1 1 Mr. Howards appealed from the Magistrate Judge s ruling (Doc. # 119) and this appeal remains pending. For reasons of judicial economy, the Court will not address Mr. Howards appeal of the Magistrate Judge s denial of his initial motion, but will instead address Mr. Howards appeal of the denial of his Renewed Motion. Thus, the original appeal (Doc. #119) is DENIED AS MOOT. 3
The Magistrate Judge denied Mr. Howards first attempt to depose Mr. Cheney on the ground that other eyewitnesses may have relevant information that would obviate the need to depose the Vice President. The Magistrate Judge reasoned that the burdens of deposing Mr. Cheney outweighed the benefit of deposing him. With Mr. Cheney declared off limits, Mr. Howards deposed Agents Daniels, McLaughlin, Reichle and Doyle (all defendants in this action), Charles Durkin (an employee of the Vice President s office who is not a defendant), and employees of the Eagle County Sheriff s Department including Doug Winter (also not a defendant). Mr. Howards videorecorded these depositions. The deponents conflicted dramatically in their respective accounts of Mr. Howards interaction with Mr. Cheney. Mr. Howards lawyers also took some additional depositions suggested by the Office of the Vice President. These additional depositions proved either completely useless (Agent Rosales deposition) or, at best, failed to clarify the discrepancies among the other eyewitness accounts of Mr. Howards assault of Mr. Cheney (Agent Wurst s deposition). On August 11, 2008, Mr. Howards filed a Renewed Motion for United States Marshals to Serve Subpoena (Doc. # 136). Mr. Howards filed the Renewed Motion to obtain an account of the incident from one of the two primary sources: Mr. Cheney, the alleged victim of the assault (the other primary source being Mr. Howards, the alleged perpetrator of the assault). The dispute at this time was limited to the necessity of 4
deposing Mr. Cheney, not the proper method to serve him. 2 Again, the Office of the Vice President opposed the request. The Vice President s Office responded that Mr. Howards Renewed Motion was procedurally faulty because Mr. Howards could not identify the statutory authority to support his request to have the Court order U.S. Marshals to serve Mr. Cheney with a subpoena compelling his deposition (Doc. # 139). The Vice President s Office further argued that Mr. Howards could not meet his burden to show that exceptional circumstances existed to warrant deposing Mr. Cheney. According to the Office of the Vice President, not even Mr. Cheney s eyewitness account regarding the alleged assault, of which he was the victim, was compelling enough to overcome the presumption against depositions of high ranking officials. The Magistrate Judge held a hearing on the Renewed Motion at which the focus was whether it was proper to depose Mr. Cheney in this case or whether the Federal Rules of Civil Procedure precluded his deposition as overly burdensome. According to the Magistrate Judge, Mr. Cheney s standing as a high-ranking government official made no difference to his analysis of Mr. Howards Renewed Motion, I don t really much care what Mr. Cheney s position is. It s immaterial to me. Whether he s the Vice President of the United States or a vice president of a local Dairy Queen. (Doc. # 151, p. 22.) This stance amounts to a departure from the Magistrate Judge s ruling on Mr. Howards original motion, wherein the Magistrate Judge relied on Mr. Cheney s 2 Although the Office of the Vice President continued to argue that Mr. Howards Renewed Motion was procedurally infirm, the Magistrate Judge does not appear to have relied on that argument in denying the Renewed Motion. 5
elevated status in balancing the burdens of taking his deposition against other less intrusive methods of discovery, e.g., interrogatories. (See Doc. # 111 at p. 21.) In his ruling on the Renewed Motion, the Magistrate Judge found that Mr. Cheney simply did not have information relevant enough to Mr. Howards claims that would permit Mr. Howards to take his deposition. As explained below, the Magistrate Judge erred in refusing to allow Mr. Howards to serve and depose Mr. Cheney in accordance with the Federal Rules of Civil Procedure. STANDARD OF REVIEW On non-dispositive issues, a magistrate judge s ruling can be set aside if it is clearly erroneous or contrary to law. F.R.Civ.P. 72(a); see also Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (analyzing the different standards of review between dispositive and non-dispositive matters under Rule 72); Murphy v. Gardner, 413 F. Supp. 2d 1156, 1162 (D. Colo. 2006) ( In considering Objections to non-dispositive rulings by a Magistrate Judge, the Court must adopt the Magistrate Judge s ruling unless it finds that the rulings are clearly erroneous or contrary to law. ) (citations omitted). The standard is difficult for Mr. Howards to surmount: only if the Court is left with a definite and firm conviction that a mistake has been made, can it set aside a magistrate judge s order. Ocelot, 847 F.2d at 1464; Ariza v. U.S. West Comms., Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). 6
ANALYSIS The Court now turns to the question of whether the Magistrate Judge applied the correct law and facts in denying Mr. Howards renewed request to depose Mr. Cheney. I. Applicable Law A. The Presumptive Scope Of Discovery Is Broad And The Party Resisting Discovery Has The Burden To Show That Requested Discovery Is Irrelevant. Federal Rule 26(b)(1) is the starting point for questions regarding the scope of discovery in federal lawsuits. That rule states in part: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of person who know of any discoverable matter. Fed. R. Civ. P. 26(b)(1). In its unadulterated state, the scope of discovery in a federal lawsuit is relatively broad or wide-ranging. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (noting that previous version of Federal Rule 26(b)(1) has been construed broadly to encompass any matter than bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case ); see also Klesch v. Liberty Media Corp., 217 F.R.D. 517, 523-24 (D. Colo. 2003) ( Moreover, this court is mindful that the discovery procedures in the Federal Rules of Civil Procedures [sic] seek to further the interests of justice minimizing surprise at trial and ensuring wide-ranging discovery of information ) (emphasis added); Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382 (D. Kan. 2005) ( Relevancy is broadly construed, and a request for discovery should 7
be considered relevant if there is any possibility that the information sought may be relevant to the claim of defense of any party. ) (emphasis added); Am. Jur. 2d Depositions and Discovery 22 Relevance ( Discovery should ordinarily be allowed, under the concept of relevancy, unless it is clear that the information sought can have no possible bearing upon the subject matter of the action. ). If the parties dispute the scope of discovery, the party resisting discovery typically has the burden to demonstrate that discovery is improper. See, e.g., Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) ( When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance.... ) (quoting Horizon Holdings, LLC v. Genmar Holdings, Inc., 209 F.R.D. 208, 211 (D. Kan. 2001); Weitzman v. Blazing Pedals, Inc., 151 F.R.D. 125, 127 (D. Colo. 1993) (noting that party resisting discovery on basis of work product doctrine has burden to show that doctrine applies). Boilerplate claims that a discovery request is burdensome or harassing will not preclude discovery of relevant material. Simpson, 220 F.R.D. at 359; see also DirecTV, 224 F.R.D. at 688-89 (noting that objecting party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, the discovery request is overly broad or burdensome by submitting affidavits or offering evidence revealing the nature of the burden ) (emphasis added). Conversely, if a discovery request does not, on its face, appear relevant, the party seeking discovery has the burden to show the relevancy of the information sought. See, e.g., DirecTV, Inc. v. Puccinelli, 224 F.R.D. 667, 684 (D. Kan. 2004) (citing McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003). 8
B. Limitations On Discovery Imposed By Federal Rule 26(b)(2)(C) However, the breadth of discovery is not unfettered. Federal Rule 26(b)(2)(C) gives a court the authority to limit the scope of discovery. The Rule is phrased in mandatory terms: (C) On motion or on its own, the court must limit the frequency or extent of discovery other allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C). The Magistrate Judge appears to have relied on this provision, particularly subsection (iii), in holding that Mr. Howards could not depose Mr. Cheney. Curiously, the Office of the Vice President supports the Magistrate Judge s ruling with the different, but related line of authority discussed below. C. Limitations On Depositions Of High Ranking Government Officials The Office of the Vice President cites a litany of cases it claims preclude Mr. Howards ability to depose Mr. Cheney because Mr. Cheney is (was) a high ranking government official. (See Doc. # 139.) A number of courts have adopted presumptions against allowing a party to depose high ranking officials because of the fear of unnecessarily involving these officials in the multitudes of lawsuits involving 9
governmental entities. 3 See, e.g., In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); Church of Scientology v. I.R.S., 138 F.R.D. 9, 12 (D. Mass. 1990). These courts have reasoned that high ranking government officials have more rigorous demands on their time and schedule than ordinary parties, so a party seeking to depose a high ranking official must demonstrate extraordinary circumstances in order to depose these officials. See Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re FDIC, 58 F.3d at 1060. These exceptional circumstances which justify allowing a deposition include an official s first-hand knowledge of the information that is the subject of the discovery and the unavailability of alternate sources of information. See Bogan, 489 F.3d at 423; Church of Scientology, 138 F.R.D. at 12. However, each of the cases cited by the Office of the Vice President involve scenarios where the deposition related to the high ranking official s governmental decision-making. The cases do not involve, as the present case does, situations where the high-ranking official to be deposed was an eyewitness or physical participant in an event which precipitated the lawsuit. Furthermore, and perhaps more obviously, Mr. Cheney is no longer a high-ranking government official, so the Court questions whether these cases are still applicable. In any event, the Court believes that Mr. Cheney should be deposed because he has relevant testimony that is unavailable from any other source in this case. 3 The Court has not located a similar presumption in this District and the Court has also been unable to locate any direction on this issue from the Tenth Circuit Court of Appeals. 10
II. The Magistrate Judge Erred In Refusing To Allow Mr. Howards To Depose Mr. Cheney. Relevancy is a generally a case-specific analysis and the Court finds that, in this case, the Magistrate Judge took an improperly narrow view in determining the relevance of Mr. Cheney s proposed deposition testimony. A. Even If Probable Cause Was The Only Element At Issue, Mr. Cheney s Testimony Is Relevant. The Magistrate Judge appears to have boiled Mr. Howards case down to the singular question of whether there was probable cause to arrest Mr. Howards. See Doc. # 151, p. 24 ( We ve got two Fourth Amendment claims which fundamentally hinge on probable cause ) and p. 25 ( So then I go to the third claim for relief, that is a retaliation violation of the First Amendment.... [T]hat claim ultimately hinges again on the existence or absence of probable cause. ).) Thus, in ruling on Mr. Howards renewed request to depose Mr. Cheney, the Magistrate Judge focused on whether Mr. Howards could show that Mr. Cheney s testimony was relevant to the Defendants assessment of probable cause for Mr. Howards arrest. The Magistrate Judge found it was not. See id., p. 25 ( Now, it is absolutely clear, based upon the testimony of [Agents] Reichle and Doyle and everybody else that the Vice President s mental impressions where not factored into or part of anyone s probable cause determinations. ). Even assuming that probable cause was the sole issue in dispute in this case, the Magistrate Judge s finding that Mr. Cheney had no relevant testimony on the topic was a clear error. 11
The standard for determining whether probable cause exists such that an officer acts reasonably in arresting an alleged criminal is whether a reasonable officer, under the circumstances, would have believed that probable cause existed to arrest the alleged offender. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008) (noting that the standard for probable cause is objective and that officer s subjective belief does not affect [the Court s] inquiry ); see also United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) ( Probable cause is measured against an objective standard. ). Courts sometimes refer to the determination of probable cause as being made based on the totality of the circumstances. See, e.g., United States v. Beckstead, 500 F.3d 1154, at 1165 (10th Cir. 2007). As these cases make clear, the probable cause standard is objective in nature and should be based on all the facts available, not merely on those specifically identified by the arresting officer. See Valenzuela, 365 F.3d at 896 (citing Florida v. Royer, 460 U.S. 491, 507 (1983) and United States v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002)). An examination of probable cause like that required by Mr. Howards First and Fourth Amendment claims, requires the Court to determine under the totality of the circumstances whether probable cause existed to support the arrest. Under this standard, eyewitness accounts of the facts giving rise to an arrest are clearly relevant to a determination of probable cause by the arresting officer. Totality of the circumstances requires the Court to review all of the facts surrounding the incident that gave rise to Mr. Howards arrest. Since the assault gave rise, at least, in part, to Mr. Howards arrest, discovery from eyewitnesses to that assault are a critical factual element of the 12
many factual elements that make up the totality of the circumstances. In other words, discovery of the knowledge possessed by Mr. Cheney undoubtedly is relevant to the issue of whether probable cause existed because Mr. Cheney s testimony will contribute to the quantum of information upon which probable the cause determination is based. Mr. Cheney s testimony is also relevant to the question of whether there was probable cause to arrest Mr. Howards because, if Mr. Cheney s testimony contradicts the arresting officer s testimony regarding the nature of the incident, the question of probable cause under the appropriate objective standard is thrown into doubt. The fact that the arresting Agents also can testify to relevant facts relating to their decision to arrest Mr. Howards does not make Mr. Cheney s knowledge regarding the incident any less relevant. Nor does the fact that Mr. Cheney may or may not have discussed the incident with the arresting officers detract from the relevance of his testimony to the totality of the circumstances surrounding Mr. Howards arrest. Mr. Cheney s deposition is relevant here because the standard is not, as the Magistrate Judge applied, whether Mr. Cheney ordered the arrest or agreed with it, but whether his testimony may lead to the discovery of admissible evidence on the totality of the circumstances. Indeed, the case for relevancy is even more compelling considering Mr. Cheney s unique vantage point i.e., he was the alleged victim. Eyewitness testimony like Mr. Cheney s is akin to a victim statement upon which countless arrest warrants are issued. The relevance of Mr. Cheney s knowledge is even more evident because he is the victim of the alleged assault and because it is essentially undisputed 13
that he may have the most accurate recall (aside, perhaps, from Mr. Howards memory) of the specifics of the incident. However, instead of focusing on the totality of circumstances available to a reasonable officer at the time of Mr. Howards arrest, the Magistrate Judge focused exclusively on deposition testimony from the Secret Service Agents involved. (See Doc. # 151, p. 15.) By barring Mr. Howards from deposing Mr. Cheney, the Magistrate Judge foreclosed possibly the key informative source regarding the circumstances that make up the totality of the circumstances upon which the Court has to make its probable cause determination. This was a clear mistake in application of the law of relevance and warrants reversal of the Order denying Mr. Howards Renewed Motion. B. The Magistrate Judge Improperly Shifted The Burden To The Party Seeking Discovery. As noted above, if a discovery request appears relevant, the party resisting discovery has the burden of overcoming the broad presumptions of Federal Rule 26(b)(1). In this case, deposition of an eyewitness, indeed, the victim, of an alleged assault that resulted in an arrest, is obviously relevant on its face. Thus, by forcing Mr. Howards to prove that Mr. Cheney s deposition was necessary, the Magistrate Judge improperly placed the burden on the party seeking discovery, rather than on the party resisting discovery. Although, as noted above, the relevancy of Mr. Cheney s deposition testimony is readily apparent from the facts of this case, the hearing transcript makes clear that Mr. Howards had to overcome the Magistrate Judge s presumption against discovery 14
of Mr. Cheney s deposition testimony. Indeed, an entire 30 pages of the 41-page hearing transcript is dedicated to argument between counsel for Mr. Howards and the Magistrate Judge regarding the propriety and relevance of Mr. Cheney s account of the incident. Not once did the Magistrate Judge require the Office of the Vice President to argue that Mr. Cheney s deposition would be irrelevant or burdensome. The Magistrate Judge also allowed the Office of the Vice President to file a Sur-Reply brief on the topic, even though such relief is not authorized by the Federal Rules or this Court s local rules. 4 By placing the burden on Mr. Howards, the Magistrate Judge clearly erred in applying the law of discovery, which, despite the limitations contained in Federal Rule 26(b)(2)(C), starts with a presumption in favor of discovery. See Simpson, 220 F.R.D. at 359; Klesch & Co., 217 F.R.D. at 523-24. CONCLUSION The Magistrate Judge erred in refusing to allow Mr. Howards to depose the victim of the alleged assault that lead to Mr. Howards arrest. Accordingly, The Magistrate Judge s Order (Doc. ## 148 & 151) is REVERSED; It is further ORDERED that discovery shall be re-opened in this matter for the limited purpose of allowing Mr. Cheney to be deposed; and 4 Although the Magistrate Judge undoubtedly had discretion to deviate from the Local Rules and allow the sur-reply, the Court references that fact only to point out that the Magistrate Judge improperly shifted the burden to the party seeking relevant discovery. 15
It is further ORDERED that Mr. Howards shall be allowed to serve an appropriate subpoena compelling Mr. Cheney s deposition in accordance with the Federal Rules of Civil Procedure and this Order. It is further ORDERED that the parties shall be allowed leave to amend their briefing on the pending Motions for Summary Judgment to account for Mr. Cheney s deposition testimony, if they wish to do so. DATED: March 2, 2009 BY THE COURT: CHRISTINE M. ARGUELLO United States District Judge 16