Hinkel v. Colling

                                                                     Ve AU   □□ 
               IN THE UNITED STATES DISTRICT COURT          wan □□ 
                   FOR THE DISTRICT OF WYOMING            3:41 pm, 4/9/21 
                                                               U.S. Magistrate Judge 
DEBRA R. HINKEL, as the duly appointed         ) 
Wrongful Death Representative for the Estate) 
of Robert Michael Ramirez, deceased; and as   __) 
the duly appointed Administrator of the        ) 
Probate Estate of Robert Michael Ramirez,      ) 
deceased,                                      ) 
                                              ) 
           Plaintiff,                         ) 
                                              ) 
           VS.                                )      Case No. 20-CV-166-NDF 
                                              ) 
DEREK R. COLLING, individually and in          ) 
his official capacity, DAVID O’MALLEY,         ) 
individually and in his official capacity as the) 
Sheriff of Albany County, Wyoming;             ) 
ALBANY COUNTY BOARD OF                         ) 
COMMISSIONERS, a Wyoming body                  ) 
corporate and politic; and ALBANY              ) 
COUNTY JOHN DOES I-X, real                     ) 
names unknown, in this their individual        ) 
and official capacities,                       ) 
           Defendants. 

ORDER GRANTING IN PART DEFENDANT ALBANY COUNTY BOARD OF 
COMMISSIONERS’ AND ALBANY COUNTY JOHN DOES I-X’s MOTION TO 
            QUASH AND MOTION FOR PROTECTIVE ORDER 

     THIS MATTER comes before the Court upon  Defendant Albany County Board of 
Commissioners’ Motion to Quash and Motion for Protective Order [Doc. 52], which was 
filed on February 5, 2021. The Motion pertains to third-party subpoenas served upon the 
Daigle Law Group, Eric Daigle, Non-Lethal Defense and Dave DuBay. Plaintiff Debra 
Hinkel  (“Plaintiff”)  responded  to  the  Motion  on  February  19,  2021.  ECF  Doc.  53. 
Defendant Albany County Commissioners  (“Commissioners”)  finished briefing on this 

matter by filing a Reply on February 26, 2021. ECF Doc. 56. The Motion was expected by 
the Court. On January 20, 2021, the Court held an informal discovery conference focused 
on  this  very  issue.  During  that  informal  discovery  conference,  inter  alia,  the  Court 

informed the parties that it would prefer the issue be briefed.  ECF Doc. 51.  Having now 
reviewed all motions and being fully apprised of the facts and circumstances of this Motion, 
the Court finds the following.                                            
                         BACKGROUND                                      

    This is a civil rights and wrongful death case arising from the shooting of Mr. Robert 
Michael Ramirez. Plaintiff, Mr. Ramirez’s mother, alleges Defendant Derek R. Colling 
wrongfully took Mr. Ramirez’s life on November 4, 2018. ECF Doc. 1. Although the 

parties disagree as to what exactly happen that day, there is no dispute that on November 
4, 2018, Mr. Colling was an Albany County Sheriff that attempted to pull Mr. Ramirez 
over in Laramie, Wyoming. During the stop, Mr. Ramirez decided to pull his vehicle 
forward approximately 150 feet to his house. Id. at 11. Mr. Colling quickly followed and 
reengaged Mr. Ramirez in the parking lot of Mr. Ramirez’s home. Id. at 12. Eventually, a 
physical altercation broke out between the two men. Id. at 13. Mr. Ramirez was tasered 

twice, shot multiple times and died before the altercation came to an end. 
    Following the shooting, the Albany County Attorney Peggy Trent (Attorney Trent) 

began empaneling a grand jury to investigate the shooting and whether it was justified. 
ECF Doc. 53 pg 3. In preparation for the grand jury, Attorney Trent retained two experts 
for the purpose of providing testimony before the grand jury; Eric Daigle (Mr. Daigle) and 
Dave DuBay (Mr. DuBay). Mr. Daigle of the Diagle Law Group is an expert in the area of 
use of force by law enforcement and regularly testifies in civil rights litigation. Id. Mr. 
DuBay, President of Non-Lethal Defense, is also an expert in the area of use of force by 

law enforcement and an expert on the body cameras and tasers used by the Albany County 
Sheriffs. Id. Both apparently provided testimony to the grand jury concerning Mr. Colling’s 
actions as compared to the national standards of use of force by law enforcement officers. 
Id.                                                                       

    In preparation, both experts were given substantial amounts of materials.1 There 
were also numerous communications between the experts and Attorney Trent, primarily by 
way of emails and telephone conferences. ECF Doc. 52 pg 5. After the grand jury hearing, 

Attorney Trent declared that all criminal investigations were finished and no charges were 
going to be brought against Mr. Colling. Plaintiff then brought this civil suit, filing her 
Complaint in September of 2020. ECF Doc. 1. Subsequently, on or about January 4, 2021, 
Plaintiff served upon Mr. Daigle, the Daigle Law Group, Dave DuBay, and the Non-Lethal 
Defense subpoenas to produce essentially everything they have related to their role as 
experts in the grand jury hearing.2 ECF Doc. 52 pg. 5.                    

     Commissioners believe the materials  requested by Plaintiff are work product, 
protected by the attorney-client privilege, unavailable due to the secrecy of state grand jury 

laws and are not proportional to the needs of Plaintiff. Plaintiff disagrees. Rather, she 

1 See Doc. 52 pages 3 through 7.                                          
2 Commissioners’ brief claims to have a copy of the subpoena attached to their Motion. See ECF Doc. 52 pg 5. 
However, the Court was not provided a copy of the subpoena in question.   
believes neither attorney-client nor grand jury secrecy privileges apply and that she has a 
substantial need for the requested materials.                             

                           Discussion                                    

1.  Grand Jury Secrecy                                                    
    Parties seeking grand jury materials must show that the materials they seek are
needed to avoid a possible injustice in another judicial proceeding, that the need for 
disclosure is greater than the need for continued secrecy, and that their request is structured 
to cover only material so needed. Douglas Oil Co. of California v. Petrol Stops Nw., 441 

U.S. 211, 222, 99 S. Ct. 1667, 1674, 60 L. Ed. 2d 156 (1979). In Douglas Oil, the Supreme 
Court stated the preferred procedure for such a disclosure would be for the court that held 
the grand jury proceedings, after making a written evaluation of the need for continued 
grand jury secrecy and a determination that the limited evidence before it showed that 
disclosure might be appropriate, to send the requested materials to the court where the civil 

case is pending. Id. at 230–31, 99 S.Ct. at 1678–79. The court presiding over the civil case, 
armed with its special knowledge of the status of the civil action, then should considered 
the requests for disclosure in light of the grand jury court’s evaluation of the need for 
continued grand jury secrecy. Id. In this way, both the need for continued secrecy and the 
need for disclosure will be evaluated by the courts in the best position to make the 

respective evaluations. Id.                                               
    The Tenth Circuit has approved the Douglas Oil approach for assessing disclosure 
of state grand jury materials in federal proceedings. Stump v. Gates, 777 F. Supp. 796, 802 
(D. Colo. 1991), vacated on different ground, 211 F.3d 527 (10th Cir. 2000) (citing U.S. 
ex rel. Woodard v. Tynan, 757 F.2d 1085, 1090 (10th Cir.), on reh'g, 776 F.2d 250 (10th 
Cir. 1985)). Although the courts are cooperative, a state order cannot foreclose a federal 

court from access to materials if a federal district court determines that disclosure is 
essential in a case properly before it. U.S. ex rel. Woodard, 757 F.2d 1085 (10th Cir). 
Federal  law  determines  the  scope  of  the  privilege  covering  these  materials,  and  the 
requirement that plaintiffs first seek disclosure through the avenues available to them in 
the state court does not give the state courts a veto over disclosure in this federal civil rights 

case. Id. at 1098 (citing Socialist Workers Party v. Grubisic, 619 F.2d 641, 643 (7th Cir. 
1980)).  This preliminary stage is designed merely to forestall unnecessary intrusion by the 
federal courts in state grand jury proceedings or, at least, to ensure that the important state 
interest in secrecy is thoroughly considered. Id. On the other hand, although the state court 
may determine that the materials are privileged under state law, only the federal court may 

determine whether the materials are privileged under federal common law. Id. In this way 
the federal interest in disclosure will be properly considered preliminarily to a final 
decision on the privilege issue. Id.                                      

    It appears Plaintiff is aware of the above cited case law, which is why she filed a 
Motion for Release of Grand Jury Materials in the Second Judicial District Court in Albany 
County, Wyoming. ECF Doc. 53-12. As such, this Court will not infringe on the State 
Court’s process. However, the question here is not whether grand jury secrecy should be 
pierced, but rather are the materials sought from Mr. DuBay and Mr. Diagle part of that 
secrecy?                                                                  

    Plaintiff asserts the experts are not included in the secrecy. Wyoming Statute § 7-5-
208 and the nearly identical Wyoming Rule of Criminal Procedure 6(a)(14) provide the 
boundaries for Wyoming’s grand jury secrecy laws. Those provisions read in relevant part 
as follows:                                                               

    (a) Disclosure of matters occurring before the grand jury, other than its 
       deliberations and the vote of any juror, may be made to the district 
       attorney for use in the performance of his duties. The district attorney 
       may disclose so much of the grand jury's proceeding to law enforcement 
       agencies as he deems essential to the public interest and effective law 
       enforcement.                                                      
    (b) Except as provided in subsection (a) of this section, a juror, attorney, 
       interpreter, stenographer, operator of a recording device or any typist 
       who  transcribes  recorded  testimony  may  disclose  matters  occurring 
       before the grand jury only when so directed by the court preliminarily to 
       or in connection with a judicial proceeding or when permitted by the 
       court at the request of the defendant upon a showing that a particularized 
       need exists for a motion to dismiss the indictment because of matters 
       occurring before the grand jury.                                  
Wyo. Stat. Ann. § 7-5-208                                                 
The federal equivalents of the Wyoming laws are Federal Rule of Criminal Procedure 6 
and 18 U.S.C § 3322. The federal authorities are identical with the only exception being 
they require secrecy from government personnel used by a government attorney for grand 
jury proceedings in addition to those listed by Wyoming. Fed. R. Crim. P. 6(e)(2)&(3) and  
18 U.S.C § 3322.                                                          
    The Court finds the grand jury secrecy laws, both federal and state, do not apply to 
Mr. Diagle and Mr. DuBay. They were engaged for the sole purpose of serving as expert 
witnesses in the state grand jury proceedings. Doc. 52 pg 12. Expert witnesses are outside

the scope of any of the previously cited secrecy laws. However, secrecy laws not only
demand secrecy from certain individuals, but also include “matters occurring before the
grand jury”. In this District, “matters occurring before the grand jury” are interpreted to 
include anything that will reveal what transpired during the grand jury proceedings. Scott
v. United States, No. 1:12-CR-058-SWS, 2015 WL 12990191, at *1 (D. Wyo. Mar. 27, 

2015). The Tenth Circuit has held that when documents or other material will not reveal 
what actually has transpired before a grand jury, their disclosure is not an invasion of the 
protective secrecy of its proceedings, nor is it an interference with the grand jury as a 
principal tool of criminal accusation. Anaya v. United States, 815 F.2d 1373, 1379 (10th 
Cir. 1987). The test of whether disclosure of information will violate secrecy rules depends 

upon “whether revelation in the particular context would in fact reveal what was before the 
grand jury.” Id.  A reviewing court must find that disclosure is certain to destroy the 
protections of secrecy laws before it finds a violation of the rule. Id. In contrast, revelation 
of  information  that  has  not  been  submitted  to  the  grand  jury  does  not  vitiate  those 
protections for the simple reason that the information was not part of what transpired in the 

grand jury room. Id.                                                      
    The Court finds the materials requested by Plaintiff do not fall within “matters 
occurring before the grand jury”. Here, Plaintiff is not requesting transcripts of grand jury 
testimony, grand jury minutes, or an exhibit list. Instead, she is seeking production of 
reports and materials that all existed before the grand jury convened. Commissioners admit 
that almost everything requested by Plaintiff can be discovered from different sources.

Doc. 52 pg 23. Clearly, if the materials can be found in numerous places and are held by
numerous parties, they are not subject to grand jury secrecy.             
    Admittedly, the Court understands the experts’ reports are a close call. The reports 

were  made  for  the  purpose  of  explaining  the  experts’  considerations,  findings,  and 
opinions. The reports would give insights as to which evidence the experts found most 
important, what subjects and information the experts might have testified to, and what 
information the experts spent the most time potentially discussing with the grand jury. Still, 
the reports do not reveal what actually transpired during the grand jury proceedings. The 

reports only reveal what two witnesses, who are not bound to secrecy by law, might have 
discussed with the grand jury.                                            
2. Attorney-client Privilege and Work Product                             

    When a federal civil case arises under federal law, Rule 501 of the Federal Rules of 
Evidence provides that federal common law governs the application of privilege. Fed. R. 
Evid. 501. To establish application of the attorney-client privilege, the party claiming the 
privilege must prove there was: (1) a communication, (2) between privileged persons, (3) 
made in confidence, and (4) for the purpose of seeking, obtaining, or providing legal 

assistance. Hedquist v. Patterson, 215 F. Supp. 3d 1237, 1244 (D. Wyo. 2016). Privileged 
persons include attorneys, clients, and “any of their agents that help facilitate attorney-
client communications or legal representation.” Id.                       
    The burden of establishing the applicability of the attorney-client privilege rests on 

the party seeking to assert it. In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th 
Cir. 2010). The privilege must be strictly constructed and accepted only to the very limited 
extent that permitting a refusal to testify or excluding relevant evidence has a public good 
transcending  the  normally  predominant  principle  of  utilizing  all  rational  means  for 
ascertaining truth. Id. (quoting Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 

912, 63 L. Ed. 2d 186 (1980)).                                            
    Commissioners argue that the materials sought by Plaintiff from the experts are 
protected by the attorney-client privilege. ECF Doc. 52 pg 9. Although they extensively 
cite law, Commissioners entire argument concerning this topic can be found on page twelve 
of their motion when they say:                                            

    “Much of the material in Mr. Daigle’s file may be obtained by the Plaintiff 
    from  its  original  source.  Albany  County  argues  that  the  [requested 
    information is] protected by the attorney-client privilege and/or work product 
    privilege. Mr. Daigle and his firm were engaged for the sole purpose of 
    serving as an expert witness in the secret state Grand Jury proceedings.”  
ECF Doc. 52 pg 12.                                                        
That analysis does not satisfy the burden of establishing the applicability of the attorney-
client privilege. Commissioners have proven there were communications between experts 
in  the  grand  jury  hearing  and  their  attorneys.  They  fail,  though,  to  prove  those 
communications were made in confidence, between privileged individuals, and for the 
purpose of seeking, obtaining, or providing legal assistance. Commissioners rely heavily 
on  the  fact  that  the  experts,  Mr.  DuBay  and  Mr.  Daigle,  are  both  attorneys. 
Communications  with  experts,  who  happen  to  be  attorneys,  are  not  attorney-client 

communications. Nor are the experts acting as agents to help facilitate attorney-client 
communications.                                                           
    Commissioners also argue that the materials sought from the experts are work 
product. Similar to, but separate from, the attorney-client privilege is the Work-Product 
Doctrine. This doctrine applies to documents and tangible things prepared by a party in 

anticipation of litigation. Marcin Eng'g, LLC. v. Founders at Grizzly Ranch, LLC., 219 
F.R.D. 516, 525 (D. Colo. 2003). Commissioners cite seminal Upjohn v. United States to 
bolster their argument.                                                   
    In Upjohn, after discovery of a foreign subsidiary making illegal payments to 
government officials, a corporation conducted an internal investigation. Upjohn Co. v. 

United States, 449 U.S. 383, 386, 101 S. Ct. 677, 681, 66 L. Ed. 2d 584 (1981). The 
companied decided that its in-house general counsel would head the investigation. Id. 
During  the  investigation,  the  general  counsel  created  questionnaires  for  employees, 
conducted interviews, and submitted a report to federal authorities. Id. Upon disclosure, 
the  Internal  Revenue  Service  began  its  own  investigation  and  ultimately  demanded 

production of all investigatory files held by Upjohn’s general counsel. Id. at 388. Upjohn 
refused to produce any of the investigatory files because it believed it to be protected by 
the  attorney-client  privilege  and  constituted  work  product  of  attorneys  prepared  in 
anticipation of litigation. Id. The Supreme Court agreed with Upjohn. The Court decided 
that where communications at issue were made by corporate employees to its general 
counsel, at direction of corporate superiors in order to secure legal advice from counsel, 
and employees were aware that they were being questioned so that corporation could obtain 

advice, such communications were protected. Id. at 394. Further, the Court found where 
notes and memoranda sought by government were work products based on oral statements 
of witnesses, they were, if they revealed communications, protected by privilege, and to 
extent they did not reveal communications, they revealed attorney's mental processes in 
evaluating the communications and disclosure would not be required simply on showing 

of substantial need and inability to obtain equivalent without undue hardship. Id.  
    Commissioners fail to explain how an Upjohn analysis is applicable to the case at 

hand. At issue today is the discoverability of materials held by two former testifying 
experts. All parties, including Commissioners, have made it clear Mr. Daigle and Mr. 
DuBay were specifically retained as experts and not attorneys. There can be no confusion, 
the experts at issue did not conduct an “internal investigation” and were not retained to 
acquire information “in anticipation of litigation”. They were solely retained to give expert 
testimony to a grand jury. Although not attorney-client communications, production of 

communications between experts and attorneys that worked for Commissioners in a prior 
matter  rise  interesting  issues.  Discovery  regarding  expert  witnesses  may  involve 
application of the doctrine in some circumstances, but this matter is best addressed with 
the rules governing the discoverability related to expert witnesses.      
    Discovery regarding expert witnesses is properly addressed pursuant to Civil Rule 
of Federal Procedure 26. The rule differentiates between testifying experts and consulting 
experts, limiting discovery of facts known or opinions held by consulting experts. Fed. R. 

Civ. Pro. 26(b)(4)(D). Here the Court is not dealing with the classic testifying and non-
testifying experts in the civil action before it, but rather, the interesting question of whether 
a testifying expert retained by a county for a previous state grand jury setting is subject to 
discovery in a subsequent related federal civil matter. While this Court has been unable to 
locate guidance on this issue, the Court finds that the prior experts should be protected 

similarly to a consulting non-testifying expert in civil matters. The rule focuses on the role 
of the expert in the pending matter, and more specifically if the expert will be providing 
testimony.  The  experts  which  are  the  focus  of  Plaintiff’s  discovery  have  not  been 
designated to testify in this proceeding  but have consulted with the Commissioners’ 
attorneys about the case. In that Mr. DuBay and Mr. Daigle will not be testifying, the 

Plaintiff need not prepare to cross-examine or rebut their testimony. As such the necessity 
of discovery is absent, as with the classic consulting expert. The limitations on discovery 
afforded under the Rule are appropriate.                                  

       The protection is distinct from the Work-Product Doctrine and the attorney-client 
privilege. Rule 26(b)(4) creates a safe harbor whereby facts and opinions of non-testifying 
consulting experts are shielded from discovery, except upon a showing of exceptional 
circumstances. Plymovent Corp. v. Air Tech. Sols., Inc., 243 F.R.D. 139, 143 (D.N.J. 2007). 
Indeed, some courts have construed 26(b)(4) as creating a privilege against disclosure. Id. 
The idea is that while discovery with respect to testifying experts is essential to allow 
opposing counsel to adequately prepare for cross-examination, and to eliminate surprise at 
trial, “there is no need for a comparable exchange of information regarding non-witness 

experts who act as consultants and advisors to counsel regarding the course litigation 
should take.” Id.                                                         

    Pursuant to Rule of Civil Procedure 26 and the experts’ nature being akin to non-
testifying expert consultants, the Court finds that the experts’ reports and files should be 
withheld from Plaintiff. Further, any communications between attorneys working on behalf 
of Defendants and the experts, regardless of form, should also be withheld from Plaintiff.  
As stated previously, this Court will defer to the state court regarding the disclosure of any 

grand jury proceedings.                                                   
    Lastly, the Court finds that Plaintiff has not established substantial need or shown 
exceptional circumstances requiring discovery of the experts’ files and reports. Plaintiff 

claims all materials relevant to the grand jury proceeding is crucial in answering whether 
the County or its agents explicitly or tacitly condoned Mr. Colling’s behavior. Doc. 53 pg 
10. Plaintiff is afraid that Defendants will use the fact that an impartial grand jury declined 
to bring criminal charges against Mr. Colling as a defense in this civil action and that she 
will be sandbagged without the ability to investigate the grand jury proceedings. Id. pg 11. 

As to those concerns, the grand jury findings are not relevant to this civil action. The grand 
jury’s decision to not bring criminal charges applies standards inapplicable in this civil 
proceeding.                                                               
    Other than worry of being sandbagged, the Court sees no other need for discovery 
of  the  experts’  reports  and  files.  Plaintiff  has  not  provided  authority  suggesting 
Commissioners’ choosing of specific experts in a grand jury proceeding may constitute an 

authorization, condonation, or ratification of excessive force. Nor has the Court found such 
authority. Also, Plaintiff and all the Defendants will have experts in this civil matter 
discussing identical topics and using the same materials as Mr. DuBay and Mr. Daigle did 
in the state grand jury proceeding. The Court finds a desire to investigate the state grand 
jury proceeding in this matter does not constitute substantial need or an exceptional 

circumstance to overcome the privilege protecting the opinions and consultations for these 
non-testifying experts.                                                   

3. Scope of Discovery                                                     
    Courts have held that a subpoenaing party may make discovery requests under Rule 
45 that fall within the general scope of discovery as defined by Rule 26. Goodyear Tire & 
Rubber Co. v. Kirk’s Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 662 (D. 
Kan. 2003). Pursuant to Rule 26, the scope of discovery includes “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).                                                 
    Relevance is broadly construed to contemplate “discovery into any matter that bears 
on or that reasonably could lead to other matters that could bear on any issue that is or may 
be raised in a case.” Sinclair Wyo. Refining Co. v. A&B Builders, Ltd., No. 15-CV-91-ABJ, 
2017 WL 10309306, at *4 (D. Wyo. Oct. 31, 2017) (quoting Anaya v. CBS Broad., Inc., 
251 F.R.D. 645, 649–50 (D.N.M. 2007)). The party seeking discovery bears the burden of 
proving relevance.  Id. at *5. However, when the discovery request is facially relevant, the 
burden is on the party resisting discovery to establish: (1) that the request is not relevant or 

(2) that the relevance is so marginal that the potential harm outweighs the presumption 
favoring discovery. See Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 403 (D. Wyo. 
2017).                                                                    
    When analyzing proportionality, the Court looks at “the importance of the issues at 
stake in the action, the amount in controversy, the parties’ relative access to relevant 

information, the parties’ resources, the importance of the discovery in resolving the issues, 
and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 
Fed. R. Civ. P. 26(b)(1). The burden to prove disproportionality is on the party resisting 
discovery.  Sinclair  Wyo.  Refining  Co.,  2017  WL  10309306,  at  *5.  These  same 
considerations and burdens apply when determining what is discoverable through a Rule 

45 subpoena.                                                              
    According to the Federal Rules of Civil Procedure, “[o]n timely motion, the court 
for the district where compliance is required must quash or modify a subpoena that” either 
“requires disclosure of privileged or other protected matter, if no exception or waiver 
applies” or “subjects a person to undue burden.”  Fed. R. Civ. P. 45(d)(3)(A)(iii)–(iv).3 To 

determine whether a subpoena presents an undue burden, courts consider:   
    (1) relevance of the information requested;                          
    (2) the need of the party for the documents;                         

3 There are other times when the court must quash or modify a subpoena as well, but those are not at issue in this 
dispute.  See Fed. R. Civ. P. 45(d)(3)(A).                                
    (3) the breadth of the document request;                             
    (4) the time period covered by the request;                          
    (5) the particularity with which the party describes the requested documents; 
      and                                                                
    (6) the burden imposed.                                              

Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Goodyear Tire & 
Rubber Co., 211 F.R.D. at 662 (listing the exact same factors without numbering them).  A 
subpoena may subject a party to undue burden where it is facially overbroad.  Wiwa, 392 
F.3d at 818.  Additionally, “if the person to whom the document request is made is a non-
party, the court may also consider the expense and inconvenience to the non-party.”  Id.; 
see also Goodyear Tire & Rubber Co., 211 F.R.D. at 663 (explaining that “the status of a 
person as a non-party is a factor that weighs against disclosure”).       
    Generally, only the party to whom a subpoena is directed has standing to file a 
motion to quash the subpoena.  Clower v. GEICO Inc., No. CIV 12–0472 JB/WD, 2013 
WL 1897832, at *5 (D.N.M. Apr. 16, 2013).  However, an exception to that rule exists 
where a party is moving to quash a subpoena that infringes on the movant’s rights, even if 
that subpoena is addressed to another.  Id.  The moving party has a burden to demonstrate 
good cause or to demonstrate a privilege should be protected.  Clower, 2013 WL 1897832, 
at *5.                                                                    

 a.  Factual Materials                                                   

    The prior discussion has addressed the formulation and expression of the experts’ 
opinions. Yet, Plaintiff’s discovery request is broader in that it seeks the factual materials 
provided to the experts. These materials are clearly relevant and the Plaintiff is entitled to 
receive those materials. The question seems to be: “from where shall the Plaintiff obtain 
such materials?”. Commissioners argue Plaintiff has already received much of what she 
has requested from other sources. Commissioners also argue that anything Plaintiff does 

not already have she could secure from original sources. In her response, Plaintiff claims 
she has continually sought production, to no avail, of recorded audio and video of the event 
at  issue  in  native  format.  She  further  claims  other  desired  materials  are  crucial  for 
answering whether the Defendants condoned Mr. Colling’s behavior.         

    Plaintiff has voiced her concerns with the failure of Defendants, and others, to 
produce native formats of all recorded audio and video concerning the event. Such a request 
is undoubtedly relevant and proportional to the issues here. The Court is unimpressed such 

a request needed to even be made. To that end, any video or audio recording relevant to 
the event at issue held by Mr. DuBay or Mr. Daigle must be produced. Commissioners 
shall confirm that all other materials provided to the experts have been produced to Plaintiff 
from other sources and any such factual materials not so produced shall be provided to 
Plaintiff.                                                                

 b.  Protection Order                                                    
 Courts  are  granted  broad  discretion  when  determining  how  discovery  should  be 
controlled and limited.  Homeland Ins. Co. of New York v. Goldstein ex rel. Powell Valley 

Healthcare, Inc., No. 1:15-cv-00031-ABJ, 2019 WL 1928483, at *1 (D. Wyo. Apr. 30, 
2019).  The Federal Rules of Civil Procedure state that “[t]he court may, for good cause, 
issue an order to protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense.”  Fed. R. Civ. P. 26(c)(1).  The party seeking a protective order 
bears the burden to show good cause for the protective order. Clower, 2013 WL 1897832, 
at *6.                                                                    

Due to their privileged nature, the Court finds good cause to grant Commissioners’ request 
for a Protection Order with respect to certain communications at issue and the experts’ files 

and reports. The Protection Order shall protect from disclosure communications between 
Mr. DuBay and Mr. Daigle with attorneys working on behalf of the Defendant, regardless 
of form. The Protection Order shall also extend to Mr. DuBay’s and Mr. Daigle’s expert 
work files and reports. The Court declines to include other materials because Plaintiff is 
entitled to factual and evidentiary materials. These materials include, but are not limited 

to, all audio or video recordings held by the experts. Defendant must ensure reception of 
such audio and video recordings, along with all other factual materials that were provided 
to the experts if not already in Plaintiff’s possession.                  

                           Conclusion                                    
    The Court finds that, considering the circumstances, Mr. DuBay and Mr. Daigle 
should be afforded the same protections as a consulting non-testifying expert witness in a 

civil  matter.  As  such,  their  communications  with  attorneys  working  on  behalf  of 
Defendants shall not be produced and are subject to protection. Further, Mr. DuBay’s and 
Mr. Daigle’s expert files and reports shall not be produced and are subject to protection for 
the same reasons. Accordingly, the subpoenas at issue are so modified.    
    However, Mr. DuBay and Mr. Daigle must disclose any audio or video relevant to 
the event in question that was produced to them. Importantly, the audio and video must be 
produced to Plaintiff in the format it was produced to Mr. DuBay and Mr. Daigle.  Also, 

Plaintiff is entitled to any other factual materials held by the experts not yet produced to 
her. Commissioners must confirm Plaintiff receives those materials.       

IT IS SO ORDERED.                                                         
    DATED this 9th day of April, 2021.                                   

                        ______________________________                   
                        MARK L. CARMAN                                   
                        UNITED STATES MANGISTRATE JUDGE