Eze v. Lunsford

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

PAULETTE EZE and PAMELA EZE SYLVESTRE,
personal representatives of the Estate of Presley Eze;
ISAAC EZE and LORETTA EZE, parents of Presley
Eze; ELENA EZE, spouse of Presley Eze; and VINCENT
J. WARD, Guardian Ad Litem of I.E., a minor child
of Presley Eze,

Plaintiffs,

v. No. 2:23-cv-00976-KWR-KRS

OFFICER BRAD LUNSFORD, and THE CITY OF LAS
CRUCES,

Defendants.

MEMORANDUM OPINION AND ORDER
Currently before the Court is the Motion filed by Defendant Brad Lunsford and Non-Party
Witness Keegan Arbogast (“Moving Officers”) seeking to quash a subpoena Plaintiffs issued to
Dr. Peter DiVasto on the ground that the documents sought by the subpoena are protected from
disclosure by the psychotherapist-patient privilege. (Motion to Quash, Doc. 46 at 3-5).1
Alternatively, the Moving Officers ask the Court to “modify Plaintiffs’ subpoena to only those
documents which Dr. DiVasto previously produced to Movants’ employer, and enter a protective
order for those documents.” (Id. at 6). For the reasons discussed below, the Court denies the Motion
to Quash without prejudice because it is premature at this time to resolve the issue of whether any

1 Although the subpoena is directed to Dr. DiVasto, Plaintiffs do not challenge the Moving Officers’
standing to seek to quash it. See Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D. Kan. 1995)
(“A motion to quash or modify a subpoena duces tecum may only be made by the party to whom
the subpoena is directed except where the party seeking to challenge the subpoena has a personal
right or privilege with respect to the subject matter requested in the subpoena.”).
of the documents sought by the subpoena are protected from disclosure by the psychotherapist-
patient privilege.
Discussion
This is a civil rights case brought by the surviving relatives of Presley Eze (Decedent)

pursuant to 18 U.S.C. § 1983 and state law, in which Plaintiffs allege that a Las Cruces police
officer unlawfully used deadly force against Decedent while investigating a complaint called into
the Las Cruces police department by a local Chevron gas station. It is unnecessary for the Court to
set forth the alleged facts in any further detail at this time, and indeed finds the discussion of those
facts in the parties’ respective filings to be largely irrelevant to the legal issue presented by the
Motion to Quash. See (Docs. 46, 52-53, 56). That issue is whether Plaintiffs may obtain the records
of Dr. Peter DiVasto, a licensed psychologist, who among other things conducted a pre-hiring
psychological evaluation of the Moving Officers, the two officers involved in the fatal shooting.2
A. Request To Quash The Subpoena
The starting place for addressing the discovery issue before the Court is the basic principle

that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1).
Plaintiffs’ response to the Motion to Quash spends a great deal of time focusing on the relevance
of the records to the claims in this case. See (Doc. 52 at 2-8, 11). But the Moving Officers do not

2 One of the problems with the current Motion to Quash is that the exact nature of the records in
Dr. DiVasto’s possession is never spelled out. Dr. DiVasto states generally in his affidavit that he
is a licensed psychologist who “conduct[s] pre-hire, post-critical incident and fitness for duty
evaluations of police and corrections personnel,” and also “conduct[s] psychotherapy with public
safety personnel.” (Doc. 46-2 ¶¶ 1-3). But outside of acknowledging that he conducted a pre-hire
psychological evaluation of the Moving Officers (id. ¶¶ 5-6), he does not explain whether and in
what capacity he dealt with the Moving Officers, although he suggests some sort of further
interaction in fact did take place. See (id. ¶ 4 (stating that the Moving Officers “were my patients
at various points throughout their law enforcement careers”)).
challenge the subpoena on relevancy (or proportionality) grounds. See (Doc. 56 at 2 (“the relevance
of Movants’ psychological records … is not in dispute”)). Therefore, for purposes of the Motion
to Quash, the Court accepts that the records are relevant3 and addresses only the disputed issue of
privilege.

The Moving Officers rely on Jaffee v. Redmond, 518 U.S. 1 (1996), in arguing that the
subpoena should be quashed because it seeks documents that are protected by the psychotherapist-
patient privilege. In Jaffee, the United States Supreme Court recognized the existence of a
psychotherapist-patient privilege under federal common law. See FED. R. EVID. 501 (providing that
federal common law governs a claim of privilege not otherwise determined by another source of
federal law, unless state law supplies the rule of decision, in which case state privilege law
governs).4 Specifically, Jaffee held that “confidential communications between a licensed
psychotherapist and [his or] her patients in the course of diagnosis or treatment are protected from
compelled disclosure.” 518 U.S. at 15. To invoke the benefit of the privilege established by Jaffee,
the Moving Officers bear the burden of establishing three elements: (1) the treating professional is

a licensed psychotherapist or clinical social worker; (2) the patient’s communications to that
treating professional were confidential in nature; and (3) the confidential communications were

3 Of course, relevance for discovery purposes does not mean that any ruling has been made that
the evidence will be admissible at trial.
4 In Dorato v. Smith, 163 F. Supp. 3d 837, 870-873 (D.N.M. 2015), the court grappled with the
question of how to handle the privilege issue in a case such as this, which involves both federal
and state law claims. See id. at 871 (“Where a privilege is asserted for evidence relevant both to
federal and pendent state law claims, most circuit courts have either held that federal privilege law
governs or approved of such an approach without explicitly adopting it.”). After a thorough
discussion of the issue, the Dorato court concluded that only federal law should be applied in such
a case. Id. at 882-86. Neither party argues here that the Court should apply state privilege law to
any aspect of the case. Accordingly, the argument is waived. See Daigle v. Shell Oil Co., 972 F.2d
1527, 1539 (10th Cir. 1992) (the court has no duty under the general waiver rule to consider an
argument not raised properly in the briefing).
made during the course of diagnosis or treatment. See Couser v. Somers, No. 18-1221-JWB-GEB,
2022 WL 343659, at *5 and n. 24 (D. Kan. Feb. 4, 2022) (citing United States v. Romo, 413 F.3d
1044, 1047 (9th Cir. 2005) (stating that, to invoke the benefit of the psychotherapist-patient
privilege, the party asserting the privilege bears the burden of showing the three elements required
for the privilege to apply)).5

The Moving Officers make little to no attempt to show that the records sought by the
subpoena are privileged under this three-part test. Instead, the Moving Officers primarily argue
that the Court should quash the subpoena because the “private and public interests served by
enforcing [their] psychotherapist/patient privilege outweighs the evidentiary benefit of denying
it.” (Doc. 46 at 4). The Court declines this invitation to engage in a balancing of interests to
determine whether to quash the subpoena because the balancing test the Moving Officers seek to
employ was explicitly rejected by the Supreme Court in Jaffee:
We reject the balancing component of the privilege implemented by
[the Seventh Circuit] and a small number of States. Making the
promise of confidentiality contingent upon a trial judge’s later
evaluation of the relative importance of the patient’s interest in
privacy and the evidentiary need for disclosure would eviscerate the
effectiveness of the privilege. … An uncertain privilege, or one

5 The Moving Officers appear to dispute they have the burden of proving the elements that would
establish a privilege over Dr. DiVasto’s records. See (Doc. 56 at 2-3 (“Plaintiffs … offer no
authority which sets forth the allegedly unmet burden.”); id. at 5 (same)). But the law is well
established that “[t]he party seeking to assert … privilege has the burden of establishing its
applicability.” In re Grand Jury Subpoenas, 144 F.3d 653, 658 (10th Cir. 1998); see also Sandia
Vista L.L.C. v. Teresa, I L.L.C., No. CV 05-1154 WJ/LFG, 2006 WL 8443812, at *4 (D.N.M. Aug.
24, 2006) (“Sandia Vista is the party claiming the benefit of the privilege and therefore has the
burden of establishing it.”); U.S. ex rel. Stone v. Rockwell Int’l Corp., 144 F.R.D. 396, 399 (D.
Colo. 1992) (“The privilege is to be strictly construed. It is to be extended no more broadly than
necessary to effectuate its purpose.”) (citation omitted))). Similar principles apply to the assertion
of a psychotherapist-patient privilege as an assertion of attorney-client privilege. See Jaffee, 518
U.S. at 8-10; Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D. Mass. 1997) (“The attorney-
client privilege and the psychotherapist-patient privilege are both ‘rooted in the imperative need
for confidence and trust.’” (quoting Jaffee)). “It is reasonable, therefore, to suggest that the scope
of the two privileges should be similar.” Vanderbilt, 174 F.R.D. at 229.
which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all.
Jaffee, 518 U.S. at 17–18 (internal quotation marks and citation omitted).6
In rejecting a balancing test for finding a privilege, the Supreme Court was actually
providing greater protection for psychological records than if the lower court’s balancing test had
been adopted. That is, if the privilege attaches to the documents at issue, then the documents are
protected from disclosure regardless of whether the evidentiary need for disclosure is great. But
the privilege does not automatically attach to all patient-related documents in the possession of a
psychotherapist. Cf. United States v. Johnston, 146 F.3d 785, 794 (10th Cir. 1998) (explaining that
the mere fact that an attorney was involved in a communication does not render the communication

privileged). For instance, “[f]acts regarding the very occurrence of psychotherapy, such as the dates
of treatment, are not privileged.” Vanderbilt, 174 F.R.D. at 230 (“The substance of the
psychotherapist-patient communication is privileged. The fact that such communication took place
is not.”); see also Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio
2014) (“The privilege does not, however, cover the patient/psychotherapist’s identity, the time of
treatment, and/or the fact that any such treatment took place.”). Moreover, the Supreme Court
recognized two exceptions to the privilege: when the patient has waived the privilege, Jaffee, 518
U.S. at 15 n. 14, and when “a serious threat of harm to the patient or to others can be averted only

6 In support of their balancing argument, the Moving Officers erroneously cite a portion of the
Jaffee opinion in which the Court applied a balancing approach to decide whether to recognize a
psychotherapist-patient privilege under federal common law. See 518 U.S. at 11-12. The cited
discussion is inapposite to the issue in this case, which is not whether to recognize generally that
a privilege exists under federal common law but whether the privilege attached to particular
documents because the required elements to invoke the privilege are satisfied as to those
documents. The Supreme Court expressly held that it was inappropriate to apply a balancing test
to determine whether to allow the privilege to be invoked in any particular case. Rather, if the
required elements are present, the privilege applies and the records will be protect from compelled
disclosure.
by means of a disclosure by the therapist,” id. at 18 n. 19. For these reasons, the relief requested
by the Moving Officers—quashing the subpoena in its entirety—could very well be overbroad in
protecting documents to which the privilege does not apply. The Moving Officers have not engaged
in the three-part analysis required to determine whether the protection attaches to any specific

document or category of documents sought by the subpoena. The Court declines to undertake that
analysis for them. See GJR Inv., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1989) (stating that a court “does not [have] … license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain an action”).
Although the Court will deny the Motion for the reasons discussed above, the denial will
be without prejudice, allowing the Moving Officers7 to assert the psychotherapist-patient privilege
as a basis for Dr. DiVasto to withhold specific documents that would otherwise be responsive to
the subpoena. To do so, however, they must follow the correct procedure:
To preserve the privilege, the asserting party must respond to
discovery requests and assert privilege by submitting a proper
privilege log which “describe[s] the nature of the documents,
communications, or tangible things not produced or disclosed—and
... in a manner that, without revealing information itself privileged

7 The Court notes that the Moving Officers, as the patients whose records are at issue, are the only
persons entitled to assert psychotherapist-patient privilege as a basis for preventing disclosure of
their records as part of discovery in this matter. See Ali v. Douglas Cable Commc’ns, Ltd. P’ship,
890 F. Supp. 993, 995 (D. Kan. 1995); cf. Sandia Vista L.L.C., 2006 WL 8443812, at *4 (“The
privilege belongs to the client. The person who [received the privileged] … communication[s]
may claim the privilege, but only on behalf of the client.”). Dr. DiVasto seems to suggest that the
Moving Officers’ employer also “holds” some sort of privilege. See (Doc. 46-2 at 2, ¶¶ 7, 8
(asserting that the Moving Officers “hold the privilege for any post-critical incident evaluations,
fitness for duty evaluations, or psychotherapy that I conducted with them,” and that their
“employing agency hold[s] the privilege for their pre-hire psychological evaluations” (emphasis
added)). It is not clear to the Court what Dr. DiVasto means by the term “hold the privilege,” but
it is the law that decides what evidentiary privileges exist and who has the right to assert them. To
the extent that Dr. DiVasto’s statements were intended to reflect some factual matter of which he
has personal knowledge concerning a confidentiality or nondisclosure agreement or promise
between or among the Moving Officers, their employer, and/or himself (as opposed to a privilege
accorded by law), he has not set forth those facts in his affidavit.
or protected, will enable other parties to assess the claim.” “[I]f a
party fails to make the required showing, by not producing a
privilege log or by providing an inadequate one, the court may deem
the privilege waived.”
Couser, 2022 WL 343659, at *6 (citations omitted); cf. Wetzel v. Diestel Turkey Ranch, No. 1:20-
CV-1213 DHU/KRS, 2022 WL 17584022, at *4 (D.N.M. Dec. 12, 2022) (“If Plaintiff withholds
any responsive documents on the basis of privilege, she must provide a privilege log as required
by Rule 26(b)(5).”). In other words, the Court “will wait until the parties have reviewed this
opinion for guidance, created a privilege log, and developed disputes about the privileged status
of specific documents within the larger pool of records.” Dorato, 163 F. Supp. 3d at 888. The
parties can then “raise the possibility of in camera review” if they are unable to resolve any disputes
regarding specific documents. Id.
Turning to the aforementioned guidance, the Moving Officers should not assert privilege
as to any document unless they can make a good faith argument that all of the elements needed for
an assertion of privilege are satisfied with respect to the specific document withheld (as opposed
to making blanket assertions about all the requested documents, or even any one requested
category of documents unless the blanket assertion is justified as to the entire category). See In re
Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir. 2010) (holding that the burden of proving
the attorney-client privilege applies to a particular communication rests on the party asserting the
privilege, who must prove the privilege exists as to specific questions or documents, rather than a
blanket assertion). That good faith argument must take into consideration the three elements

required for the privilege to apply as well as the issue of waiver. As to the first element, there does
not seem to be any dispute that Dr. DiVasto is a licensed psychologist. But there could very well
be a dispute over the other two required elements: that the document in question contains
confidential communications to Dr. DiVasto, and that those confidential communications were
made during the course of diagnosis or treatment. There also could be disputes about whether any
privilege that originally attached to the document in question has since been waived. The Supreme
Court left the task of fleshing out these requirements to the lower courts. See Jaffee, 518 U.S. at
18 (“Because this is the first case in which we have recognized a psychotherapist privilege, it is

neither necessary nor feasible to delineate its full contours in a way that would govern all
conceivable future questions in this area.”). Therefore, the parties should look to case law applying
Jaffee for further guidance. The Court will briefly set out some basic principles, however.
Courts have held that the “determinative factor [in] assessing the existence of a
psychotherapist-patient privilege is whether [the] officer had a reasonable expectation of
confidentiality relating to the ... counseling session or evaluation.” James v. Harris Cnty., 237
F.R.D. 606, 611-12 (S.D. Tex. 2006). For instance, it could be that “[a] police officer who is ordered
to therapy, knowing that the therapist will report back to his or her superior, would have no
expectation that his or her conversation was confidential” due to the fact that the officer expected
that the therapist would produce a report or an evaluation from the ordered sessions for review by

third parties.” Barrett v. Vojtas, 182 F.R.D. 177, 181 (W.D. Pa. 1998); see Dorato, 163 F. Supp. 3d
at 887 (“If a party is informed that evaluations, tests, therapy session notes, or any other
information will be disclosed to his or her employer, that party cannot have a reasonable
expectation of privacy.”).
But the Court does not think that the fact that New Mexico has a statutory requirement for
pre-employment psychological examinations for law enforcement officers necessarily dictates the
result of the confidentiality inquiry as to all documents in Dr. DiVasto’s possession (as Plaintiffs
appear to suggest, Doc. 52 at 8). For instance, certain categories of documents called for by the
subpoena might very well contain confidential material, notwithstanding that the documents were
created as a result of the requirements of the Moving Officers’ employment. See, e.g., Speaker ex
rel. Speaker v. Cnty. of San Bernardino, 82 F. Supp. 2d 1105, 1115 (C.D. Cal. 2000) (where the
court rejected the plaintiff’s argument that the privilege could not attach to counseling sessions
that an employer required, explaining that the inquiry “turn[s] on the fact that the officer knew that

the counselor’s report would go to his employer”); see also Caver v. City of Trenton, 192 F.R.D.
154, 162 (whether Defendant Valdora went to a psychologist voluntarily, or was ordered to go, is
not dispositive of the issue. What is critical is that Defendant Valdora was examined by a
psychologist for the purpose of diagnosing whether he was suffering from some mental illness or
emotional disorder that would render him unfit to be a police officer” and “was told and reassured
that the psychological records and reports would be kept strictly confidential, and would not be
disclosed to the City of Trenton personnel”).8
As to the second required element for the privilege to apply, courts generally have
determined whether a meeting occurred “in the course of diagnosis or treatment” by considering
the totality of the circumstances. Couser, 2022 WL 343659, at *6. “Relevant factors might include

the historical nature of the relationship between the individual and his confidante; the patient’s
purpose in making the communication; the nature of the contact; the timing and location of the
communication; objective data, such as medical records, which corroborate the counseling contact;
and whether mental health services were provided or requested during the communication.” Id.

8 The Moving Officers assert that they “did not consent for Dr. DiVasto to disclose information
regarding how he determined their ability to return to duty, or any other confidential information
to any party.” (Doc. 56 at 4). But “[a]n attorney’s assertions in a motion or brief are not evidence.”
Putnam v. CaramelCrisp LLC, No. 20 C 2074, 2024 WL 197361, at *3 n. 3 (N.D. Ill. Jan. 18,
2024) (citing inter alia INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984)). As Plaintiffs point out,
the Moving Officers did not submit an affidavit or declaration in support of their Motion To Quash.
And whether they consented or not is a conclusion of fact that likely turns on an analysis of one or
more pieces of evidence not currently before the Court.
(citing United States v. Hudson, No. CRIM.A. 13-20063-01, 2013 WL 4047145, at *5 (D. Kan.
Aug. 9, 2013) (citing Romo, 413 F.3d at 1047))).
On the waiver issue, courts generally recognize that a party can waive the psychotherapist-
patient privilege in two ways: by placing his or her medical condition at issue; or by releasing any

expectation that he or she would otherwise have that the communications would remain private.
See Dorato, 163 F. Supp. 3d at 886. There does not appear to be any indication that Defendant
Lunsford has raised his mental health condition as an issue in the case, and certainly the non-party
Moving Officer has not done so. Therefore, the waiver issue turns in this case on whether
documents were actually disclosed to a third party with the Moving Officers’ knowledge and
consent. See Couser, 2022 WL 343659, at *6 (waiver turns on whether “the [patient] knew that
the counselor’s report would go to’ another entity.” (quoting Dorato, 163 F. Supp. 3d at 878
(quoting Speaker ex rel. Speaker, 82 F. Supp. 2d at 1115))); see also Chavez v. City of Farmington,
No. CV 15-171 JCH/SCY, 2015 WL 13650097, at *2 (D.N.M. Nov. 25, 2015) (“An officer’s belief
that results of a psychological evaluation would only be disclosed to his or her employer and not

the general public … does not preserve the privilege—once the communication is disclosed outside
the ‘magic circle’ of persons to whom the privilege applies, the privilege is destroyed.” (citing U.S.
v. Mass. Inst. of Tech., 129 F.3d 681, 684 (5th Cir. 1997) (“where the client chooses to share
communications outside this magic circle, the courts have usually refused to extend the
privilege.”); and Estate of Turnbow v. Ogden City, 254 F.R.D. 434, 437-38 (D. Utah 2008)
(officer’s knowledge that communications made to a therapist would be disclosed to the officer’s
employer is sufficient to render the privilege inapplicable)). Whether this waiver rule would mean
that privilege has been waived as to all of the documents requested by the subpoena, as Plaintiffs
seem to argue, is unclear at this point. Nothing in the current record establishes which documents
requested by the subpoena were disclosed to the Moving Officers’ employer and which were not.9
It is certainly possible that some of the psychological records or information held by Dr. DiVasto
were “generated for [the Moving Officers’] sole benefit, without any indication that they would be
shared with a third party.” Dorato, 163 F. Supp. 3d at 887 (noting that if “the City of Albuquerque

required officers involved in police shootings to visit psychotherapists as an employee benefit, but
did not receive the results of the examinations, the results need not be disclosed”).
B. Request For Alternative Relief
Lastly, the Court also denies at this time the Moving Officers’ alternative two-pronged
requested relief. The first prong of the Moving Officers’ requested alternative relief is that the
Court limit the documents that must be produced in response to the subpoena to only those
documents Dr. DiVasto previously produced to the Moving Officers’ employer. But that limit only
addresses the waiver issue. It does not address the issue of whether some documents in question
do not fall under the privilege in the first instance, either because they do not involve confidential
communications between a patient and a psychotherapist, or because those communications were

9 Plaintiffs argue that the Moving Officers have not met their burden of proof because “[n]either
officer submits an affidavit and DiVasto does not relate whether they sought counseling because
of City policy or completely on their own.” (Doc. 52 at 11). It is true that Dr. DiVasto’s affidavit
raises more questions than it answers, which is why the Court is denying the Motion. But the
affidavit does state that the only matters between him and the Moving Officers that were disclosed
to the Moving Officers’ employer were the officers’ “pre-hire evaluations” and some sort of
notification “informing their employers whether they were capable of returning to duty.” (Doc. 46-
2 at 2). As written, the affidavit seems to suggest there are other materials or records not disclosed
to the employer. For instance, if Dr. DiVasto provided counseling to the Moving Officers for which
no information was released to the Moving Officers’ employer, the therapy notes from those
counseling sessions would be protected by the privilege. See, e.g., Jaffe, 518 U.S. at 18 (holding
that conversations between police officer and licensed therapist and notes taken during their
counseling sessions were protected from compelled disclosure by the patient-psychotherapist
privilege). The fact that this counseling occurred, however, is not privileged, and Dr. DiVasto
therefore should disclose that information without revealing any confidential communications he
received as a result.
not made during the course of diagnosis or treatment. As previously noted, the Moving Officers
bear the burden of establishing that the privilege applies. Documents that were not actually
disclosed to the Moving Officers’ employer could still fall outside the privilege, if, for example,
the Moving Officers were informed and agreed that any information exchanged between them and

Dr. DiVasto might or could be disclosed to the employer, or if the information was not exchanged
in the course of treatment or diagnosis.
The Court also finds it inappropriate at this time to enter a protective order preventing the
disclosure outside this litigation of any documents produced in response to the subpoena. See (Doc.
46 at 6 (arguing that “[r]ecords that are not privileged may still be entitled to privacy protections.”).
It is true that the court in Chavez agreed to “enter a protective order to remedy any confidentiality
concerns raised by disclosure of the Officers’ mental health records.” Chavez, 2015 WL 13650097,
at *3; see also Dorato, 163 F. Supp. 3d at 895 (“The Court has employed certain protections to
minimize and/or mitigate the intrusion on Smith’s privacy interests[,]” including “put[ting] in place
a rigorous Protective Order” providing that “[t]he documents can be used only in this case and

must be handled with care”). Courts routinely enter confidentiality orders, but typically upon the
mutual agreement of the parties to the case. The Court thus would prefer that the parties meet and
confer regarding the entry of a confidentiality order, and if agreement is reached, the Court will
enter a stipulated order that is presented through the filing of an agreed motion. Should the parties
not be able to reach agreement, the Court will have the benefit of briefing from both sides as to
whether a confidentiality-type protective order is appropriate before making a decision. See, e;g.,
Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1128–29 (10th Cir. 1999) (declining to rule
on the basis of undeveloped or superficial arguments).
Conclusion
Accordingly, Defendant Brad Lunsford’s And Non-Party Witness Keegan Abrogast’s
Motion To Quash Subpoena To Dr. Peter DiVasto Or, In The Alternative, Modify Subpoena and
Enter Protective Order [46] is DENIED without prejudice as set forth above.
IT IS SO ORDERED this 25th day of February, 2025.

KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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