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UNITED STATES
DISTRICT COURT
DENVER, COLORADO
MAR. 25, 2002

James R. Manspeaker
Clerk

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
JUDGE WALKER D. MILLER

Civil Action No. O1-WM-555
JOHN RAMSEY AND PATSY RAMSEY, as parents and natural guardian of BURKE RAMSEY, a minor,
Plaintiff.

V.

NYP HOLDINGS. INC., doing business as THE NEW YORK POST, Defendant,

BOULDER COUNTY DISTRICT ATTORNEY'S OFFICE,

Respondent.

ORDER ON MOTION TO QUASH SUBPOENAS

AND PROPOSED MANNER OF PROCEEDING

Miller, J.
This matter is before me on the motion to quash subpoenas, filed by respondent Boulder County District Attorney's Office. The following order is based upon my consideration of the parties' written and oral arguments.

Background

The underlying litigation is pending in the Southern District of New York, Case No. 00 Civ. 3477(VM). Plaintiffs are John and Patsy Ramsey, on behalf of their son Burke. Defendant is NYP Holdings. Inc., doing business as the New York Post. The Ramseys claim defendant knowingly and recklessly defamed Burke by publishing a May 13, 1999 article that falsely alleged that Burke killed his sister, JonBenet. The article referred to an earlier story published in Star magazine, a supermarket tabloid.

In support of their claims, the Ramseys procured an affidavit from then-Boulder County District Attorney Alex Hunter to the effect that Burke was not targeted as a suspect in JonBenet's murder investigation. Exhibit B to Memorandum in Opposition to Respondent's Motion to Quash. In response to this affidavit defendant served subpoenas on the Boulder County District Attorney's Office (respondent in this court), seeking disclosure of documents relating to the JonBenet investigation. The original subpoenas were defective because they sought production of the requested evidence in New York rather than in Colorado. Defendant and respondent then tried to resolve their dispute over the subpoenas. When their negotiations failed, the defendant served the current subpoena on respondent. Respondent contends the subpoena should be quashed because the information sought is privileged and because the subpoena subjects the District Attorney's Office to an undue burden.

Standard of Review

Fed. R. Civ. P. 48(o)(3) directs that a court "shall quash or modify" a subpoena if it, inter alia. (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden." The party opposing the subpoena bears the burden of showing the requests are unreasonable or oppressive. Goodman v. United States, 380 F.2d 166, 169 (9th Cir. 1966).

Counsel for respondent provided defendant with copies of all documents reviewed by Hunter to prepare his affidavit. (Defendant states these were nothing more than drafts of the affidavit.)

Generally, the issues presented by respondent's motion are whether respondent may withhold production based on common law and statutory privileges or because the request is unduly burdensome. The motion originally listed three bases for its privilege claims: (1) district attorney work product doctrine; (2) protection against disclosure of investigative materials as contrary to the public interest, pursuant to C. R. S. 24-72-305(5); and (3) Grand jury secrecy provisions of the Colorado Rules of Criminal Procedure. As a separate claim, respondent asserted that some documents sought were under the control of the City of Boulder Police Department.

By their pleadings the parties have somewhat narrowed the issues in dispute and brought them into sharper focus. Respondent declared it would provide defendant the opportunity to review and copy documents sent to it by concerned members of the public and various psychics. Motion to Quash, 4-5. Defendant disclaims any production of such public documents and any grand jury material. Further, some materials have now been provided to the defendant by plaintiffs. See Exhibit B to Respondents Proposed Outline Limiting Document Review. In addition, as discussed below, defendant has significantly reduced the scope of the documents sought.

Both parties cite to Colorado law as well as federal authorities without explaining what law controls the resolution of this matter. Rule 501 of the Federal Rules of Evidence provides generally that privilege issues are governed by federal common law, except that in civil actions and proceedings, with respect to an element of a claim or defense to which State law supplies the rule of decision. the privilege, of a witness, person, government, state, or political subdivision thereof shall be determined in accordance with State law. Conceivably one might classify this as an ancillary proceeding to be determined by state law even though the motion is pursuant Fed

As to the remaining privilege issues, respondents' arguments concerning a possible claim of privilege by the City of Boulder Police Department are not clear. Respondent submitted the declaration of Mark R. Beckner filed in another lawsuit, apparently resisting production of similar information. Exhibit E to Motion to Quash. I am not provided any description of any documents that might remain subject to the control of the City of Boulder Police Department. Further, there has been no subpoena of the department in this case, and the department is not a party. Accordingly, I make no decision as to the privilege of the department concerning any document at issue. I assume defendant's subpoena seeks only documents in the possession or control of the respondent.

Addressing the respondents claim of privilege under the Colorado Open Records Act CR.S. 24-72-101 to 402, respondent specifically claims the investigative reports are protected by section 24-72.305(5), which states that on the ground that disclosure would be contrary to the pubic interest. and unless otherwise protected by law, the custodian of criminal justice records may deny access to records of investigations conducted by or of intelligence information or security procedures of any sheriff district attorney, or police department or any criminal justice investigatory files complied for any other law enforcement purpose.

R- Civ. P. 45 and filed in federal court. To the actual defamation claim giving rise to this proceeding, state law supplies "the rule of decision" in a diversity action, but presumably it is the law of either the plaintiffs' or defendant's residence, neither of which is Colorado. Regardless, and as the parties have done in their arguments, I consider the Colorado authority as persuasive, but not binding, in making my decisions.

Steven Miles v. John Ramsey. et at. Civil Action No. 98-VW-528.CB, United States District Court for the District of Colorado. In Miles, the police department made similar claims of confidentiality or privilege under state law. As in this case, the Boulder Chief of Police had filed an affidavit in support of one party's motion for summary judgment. As a result. Magistrate Judge Bruce Pringle concluded that filing of the affidavit resulted in a waiver of the investigative privilege, and the party was allowed to depose the affiant. Transcript at 21-23.

Respondent states, without much discussion, that disclosure of the documents would be contrary to public interest, thereby allowing the custodian to deny access.

In weighing these arguments I bear in mind the competing public interests at issue: full pretrial discovery versus legitimate protection of investigative files. As discussed below, the District Attorney's actions in assisting a litigant, in a case to which his office is not a party, reduces the weight I must give to considerations of privilege and protection. I interpret section 24-72-305(5) to impose the burden of persuasion upon the custodian of the criminal justice records to show disclosure is against the public interest. Under the circumstances of this case I conclude that disclosure would not be contrary to the public interest and also observe that this privilege is subject to the same waiver discussed below.

Respondent also emphasizes that Hunter provided the affidavit for Burke, not for his parents, and that it was proper for him to take that step to protect the minor child.

Thus, it states Hunter did not voluntarily participate in the New York litigation and was instead offering the affidavit in an attempt to minimize further appearances by Hunter or himself or representatives of the District Attorney's office in that litigation. Response, Exhibit D (cover letter from counsel for Burke). I note, however, that it must have been clear to Hunter that the Ramseys, who were suing on behalf of their minor son, would

Defendant states respondent has not met its burden of' showing that the requested production is contrary to public interest. See Martinelli v. District Court, 199 Colo. 163,171 n.3, 612 P.2d 1083, 1089 n.3 (1980) (under Colorado law, a party claiming privilege must provide the court a specific designation, description, and reasons for preserving the confidentiality of each item claimed to be privileged) -Respondent counters this argument, arguing that defendant's requests in the subpoena are so broad and sweeping in nature that it would be unreasonable to require the District Attorney's Office to catalogue and describe all documents from the lengthy investigation. Although defendant's requests may be broad, respondent has failed even to attempt to meet this burden make use of the affidavit in the New York case. His motives of protecting Burke and minimizing potential appearances of respondents representatives-however legitimate- do not make the provision of the affidavit any less voluntary.

Regarding its claim of work product privilege, respondent cites several cases addressing that privilege in the context of criminal and grand jury proceedings. See, e.g., United States v. Nobles. 95 S. Ct. 2160 (1975) (work product doctrine has role in proper functioning of criminal justice system as safeguard assuring thorough preparation and presentation of case).' Respondent minimizes the protection a protective order would provide, against third party disclosure of the information, pointing out that defendant is a media organization and that the information at issue has great commercial value (if measured by the number of books, articles, etc. surrounding the investigation). Nevertheless, I assume defendant will abide by the protective order and resist any such temptation.

Finally, respondent argues defendant has not demonstrated that the evidence sought is relevant to the New York litigation. It points out that the same information contained in the Hunter affidavit was released to the media by the District Attorney's office in May 1999 in a pubic response to the tabloid arid New York Post articles, It argues that impeachment purposes are not sufficient basis to justify compelling production of documents from a non-party. United States v. Nixon. 94 SCI 3090, 3103(1974).

Defendant responds that the protection afforded to government regulatory and Respondent raises the potential disqualification of its office in any criminal case resulting from the ongoing Ramsey investigation if it is forced to open its files to discovery. It is not apparent how disclosure would cause disquaIification.

Investigatory files is qualified rather than absolute. It may be defeated where production of documents is required in the interest of justice. United States ex rel. Stone v. RockwelI Intl Corp., 144 F.R..D. 396,402 (D. Cola. 1992).

Defendant claims the evidence sought in the subpoena is crucial to its defense to the defamation claim. It states the documents sought are directly related to key issues in that action, including Burke's possible involvement in the murder and/or his parents' possible involvement in a cover-up, reported plea bargain negotiations with Burke's representatives, and even whether someone in the District Attorney's office provided the information about Burke to the Star magazine.

Truth is a complete defense to a defamation claim, whether the truth is known at the time of the alleged wrongdoing or not Haynes v. Alfred A. Knopf Inc., 8 F.3d 1222, 1228 (7th Cir 1993) (citing Restatement (Second) of Torts 581A, comment h (1977)).

Respondent does not disagree that the truth or falsity of the allegations against Burke is a core issue. Evidence that would support either the allegations in defendant's article or the statements in Hunters affidavit would be relevant to that issue. The fact that respondent released similar or identical information to the press as was contained in the affidavit does not detract from the relevancy of such evidence. While the press release may show consistency in respondents public position with regard to Burke, neither it nor the affidavit can substitute for documentary evidence regarding the investigation.

Defendant also asserts that information sought is relevant in light at the prior drafts of the affidavit provided by respondent. A comparison of the affidavit and draft (Exhibits B and D to response) reflects that Hunter decided to delete certain statements, including a statement that investigators were satisfied that Burke was not a suspect and that Burke was never viewed as a suspect.

I agree with defendant that at least some of the evidence sought in the subpoena, if it exists, may be necessary to its defense in the New York litigation.

The parties have not provided sufficient detail to aid my consideration of these arguments. For example, it is hard to imagine that every document is indeed the work product of the district attorneys staff: If a document might legitimately be considered work product. I could perhaps rule or at least engage in the necessary balancing of interests. Martinelli, 199 Cob, at 170, 612 P.2d at 1088 (requiring an ad hoc balancing of the interests of disclosure in discovery against the government's interest in confidentiality with regard to an official information privilege). Regardless, the defendant relies mainly on its argument that respondent waived any work product protection (or any other privilege objection) when Hunter voluntarily provided an affidavit to support Ramsey's case. They have relied on it in pretrial proceedings and presumably intend to call Hunter as a witness.

Thus, by his actions Mr. Hunter has obviously involved his office in this civil litigation, and the question presented is whether that involvement constitutes a waiver of the asserted privileges.

Courts have generally followed one of three approaches when determining whether privilege has been waved. See Federal Deposit Ins. Co. v. Wise 139 F.R.D. 168. 170-71 (D. Colo. 1991) (discussing approaches). The first and strictest approach, the "automatic waiver" theory, finds waiver solely upon the presentation of a claim or defense by a litigant. Id. at 171. I decline to follow this theory because, as Judge Finesilver concluded in Wise, the application of the rule "precludes any consideration of the relative interests involved" and "would lead to needlessly harsh results." Id.

The second approach applies a balancing test, weighing the need for discovery against the need to protect the secrecy of the information at issue. Id. To the extent that the overarching concern of the law of privilege is always to protect secrecy, however, the balancing test is of limited assistance in determining waiver.

Under the third approach, a privilege or other protection may be impliedly waived when: (1) the assertion of the privilege is the result of some affirmative act by the asserting party (2) through the affirmative act, the asserting party has placed the protected information at issue by making it relevant to the case; and (3) application of the privilege would deny the opposing party access to information vital to its defense. id.

Applying this last test, there is no dispute here that the subpoenas were issued in response to the Hunter affidavit. Thus, respondent's assertion of privilege in this case is the result of Hunters affirmative action. With his affidavit, Hunter provided the Ramseys with information, based on protected documents, that is relevant to their allegations against defendant. Finally, as I have found application of the privilege in this case would deny defendant access to information relevant and necessary to its defense against the libel claim.

I conclude that respondent waived its privilege objections, under either the work product doctrine or the Open Records Act, when Hunter provided the affidavit to the Ramseys. Absent that affidavit, the issues would be much different.

In a separate argument not tied to any particular claim of privilege, respondent argues defendant has not met its burden for obtaining the requested discovery. SB. Fed. R. Civ. P. 26(b)(3) (a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial from another party 'only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means"). Respondent emphasizes that the Boulder County District Attorney is not a party to the A finding of waiver does not end the matter, however, because the parties dispute the extent of the waiver. Defendant takes the position that respondent should produce all documents within the scope of the subpoena without regard to whether they were generated before or after Hunter provided his affidavit. Respondent, although disagreeing that any waiver occurred, wouId limit disclosure to documents in existence as of May 1999.

Because truth is a defense to defamation even it is unknown at the time of the allegedly defamatory statement, defendant argues it should have access to all documents relevant to its subpoena request even if some documents were created after the date of the article or the affidavit. Here, however, I have found that defendants access to the documents is dependent upon Hunter's waiver. That waiver involves a knowing act as of a date certain and does not constitute a prediction of the future. I decline, therefore, to New York litigation and contends that an even higher burden is required where the information sought is held by a non-party.

The status of an 'entity as a non-party is a factor which weighs against disclosure" Echostar Commun. Corp. v The News Corp. Ltd., 18O F.RD. 391 384 (D. Colo. 1998) (addressing disclosure of trade secrets). In that case, the court stated that the party seeking disclosure must show that the sensitive information Is relevant and necessary, that it has a substantial need for the discovery that cannot otherwise be met without undue hardship, and that the need for disclosure outweighs any resulting injury to the non-party. Id. See also Fed. . Civ. P. 28. Here, respondent contends defendant has neither demonstrated a substantial need for the information nor described the attempts to obtain information concerning the veracity of the statements in its May 1999 article from any other source. It describes the subpoena as an attempt to "fish by draining the pond. "Reply, at 11. (As I have observed, defendant has now reduced the scope of its requests.) I have agreed with defendant that it has shown a substantial need for the information sought Respondent's own claims of privilege and confidentiality demonstrate that defendant would not be able to obtain the documents by other means without undue hardship. Finally, even applying a higher burden in light of respondent's status as a non-party, I conclude, based in part on my finding of waiver, that the need for disclosure outweighs any possible injury to respondent. EchoStar Commun. Corp., 180 F.R.D. at 394. extend the waiver into one that unknowingly opened the door to all future evidence in the investigation. Defendant is not entitled to carte blanche. access to the ongoing investigation.

Respondent seeks to limit any disclosure to evidence generated within a six-week period prior to the affidavit. I find this too restrictive, particularly because respondent has submitted no evidence to suggest that Hunter relied only on information from such a restricted time period,

I conclude the time period covering the documents to be provided under the subpoena is from the beginning of the JonBenet murder investigation through the date of the affidavit.

Regarding the scope of the subjects covered by the subpoena, I find defendant is entitled to disclosure of any information regarding Burke Ramsey.

Information regarding his parents, John and Patsy Ramsey, is limited to that which concerns potential charges against Burke and/or any plea negotiations concerning charges against Burke. This does not include any documents concerning his parents that have no connection to Burke.

Undue Burden

Regarding undue burden, the subpoena originally sought disclosure of twenty-four separate categories of documents relating to the JonBenet investigation.'

The original request for production sought disclosure of:

(1) documents relating to the death of JonBenet Ramsey

(2) documents concerning interviews or conversations between investigators or psychologists discussing the death of JonBenet;

(3) documents in which Burke Ramsey is implicated (or identified as potentially implicated or involved) In the death of JonBenet

(4) documents concerning interviews or conversations between investigators or Respondent argues the requests would encompass "tens of thousands of documents. Motion, at 4.

Defendant reduced the scope of its request to "all documents" falling into the following categories: (1) those relevant to Burke Ramsey; (2) those relevant to Patsy psychologists and John and/or Patsy Ramsey mentioning or discussing the death of JonBenet

(5) public statements made by respondent or its agents relating to the death of JonBenet;

(6) documents concerning public statements made by John, Patsy, or Burke Ramsey discussing the death of JonBenet;

(7) (copies of) notes believed to be written by the killer/kidnapper

(8) documents relating to steps taken by or communications made by anyone to identify the killer;

(9) communications relating to the death of JonBenet between respondent and any other person (including Jeff Shapiro of the Globe.

(10) documents or communications obtained from the Boulder Police Department, the FBI, the CBI or other law enforcement agency or govemment entity regarding the death of JonBenet

(11) documents provided to respondent by the Ramseys;

(12) documents provided by respondent to the Ramseys;

(13) handwriting or other samples obtained from the Ramseys;

(14) documents concerning the psychological condition of Burke from, the time of his birth to the present

(15) documents concerning handwriting, fingerprint, blood and hair samples, or DNA tests performed on or given by the Ramseys;

(16) documents prepared by handwriting, fingerprint, DNA, forensic, linguistic, or other experts hired by anyone to investigate or give an opinion on the death of JonBenet

(17) documents concerning any appearance by Burke before a grand jury

(18) documents concerning the relationship between JonBenet and Burke;

(19) documents concerning the Whereabouts of Burke on December 25 and 26, 1996;

(20) documents concerning physical or sexual abuse or injury of JonBenet

(21) documents concerning JonBenet's medical history

(22) documents concerning polygraph tests or results or negotiations for tests for the Ramseys in connection with the death of JonBenet:

(23) documents concerning examinations of JonBenet's body,including the autopsy reports; and

(24) documents concerning the statements reflected in Hunter's October 12, 2000 affidavit.

Ramsey (3) those relevant to John Ramsey; (4) those relevant to physical evidence of the crime scene: (5) those relevant to a possible cover-up and/or staging of the crime scene: and (6) those relevant to the possibility that the murder was committed by some intruder. Defendants Supplemental Brief in Response to Court Request, p. 3. I construe those statements as an amendment of the subpoena.

On the issue of whether the disclosure sought would be unduly burdensome (an issue not subject to waiver), defendant argues respondent has failed to carry its burden of showing unreasonableness or oppression and that its own need for the information outweighs any inconvenience to respondent, Goodman v. United States, 360 R2d at 189 (subpoena for IRS documents not unreasonable where one purpose of request was to obtain evidence to impeach testimony of government witnesses).

Defendant counters respondent's assertion that the production would encompass "tens of thousands of documents," stating that "volume alone is not determinative."Northrop Corp v. McDonnell Douglas Corp., 751 F.2d 39G. 404 (D.C. Cir. 1984). It points out that respondent has not indicated where the documents are stored, what steps would be required to produce the documents, or other information to support its claim of undue burden. Defendant offers to inspect the relevant documents at a location designated by respondent, and select documents for copying to alleviate the need for respondent to produce the documents.

Given the current limitations on the scope of the request and the procedures for disclosure, set forth below, I conclude the subpoena, as amended, does not impose an undue burden on respondent.

Accordingly, it is ordered:

The motion to quash, filed March 29, 2001, is denied as to documents covered by the subpoena (a) which were in existence during the time period extending from the beginning JonBenet murder investigation through the date of the Hunter affidavit (b) which are subject to the control of respondent; and (c) which contain information regarding (1) the investigation of Burke Ramsey as a possible perpetrator of, accessory to, or conspirator regarding the murder, (ii) potential charges against Burke, and/or (iii) any plea negotiations concerning any such charges against Burke. The balance of the motion to quash is granted.

2. The following constitute the proposed proceedings for disclosing documents covered by this order:

a. Disclosure of documents shall be subject to the terms and conditions of the protective order issued in this case on August 6, 2001.

b. Disclosure shall not include any grand jury materials covered by Rule6.2, Col. R. Crim. P., or unsolicited documents received from members of the public alleging to have information about the investigation.

c. Any documents that defendant withholds from disclosure on the basis of relevance or because of questions whether a document is covered by this order will be reviewed in camera by the undersigned or by a magistrate judge, pursuant to Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980), to determine whether they fall within the scope of the ordered disclosure.

c. The documents covered by this order (or copies thereof) shall be If documentation subject to in camera review is voluminous, the court may appoint a special master at the parties' expense to conduct the review. made available to defendant within forty-five days of the date of this order.

d. The documents shall be kept in appropriately marked containers and maintained in a separate, secure room at the Boulder County District Attorney's Office. Defendants attorneys shall have access to the documents from Monday through Friday from 5:00 am. to 5:00 p.m. at specific times to be scheduled by the parties.

f. Respondent shall provide a room in the vicinity of the documents to permit defendant to review the documents in privacy, subject to unobtrusive and unobstructive supervision by the Office.

g. Respondent may check documents out to its personnel involved in the ongoing investigation, provided that respondent maintains a written record by document name and number, as well as the date, time, and name of the person checking out the document. Respondent shall promptly make any checked out document available to defendant upon its request.

i. Respondent shall make copies of any documents requested by defendant at a reasonable cost to defendant, not to exceed twenty-five cents per page.

j. Defendant may, at its cost, provide its own copy machine or scanner for copying or scanning the documents at respondent's office.

3. Within ten days of the date of this order, the parties may file proposed, specific changes or additions regarding these procedures for disclosure of the documents to be produced. An order will issue thereafter requiring disclosure of documents under the procedures described above (or those procedures as modified based upon the parties' comments).

DATED at Denver, Colorado, this 25th day of March, 2002

BY THE COURT:
Walter D. Miller
United States District Judge