July 23, 2019

Colorado Court of Appeals: Board Had No Basis for Investigating Physician Based on Reasons Outside Subpoena

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. McLaughlin on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. McLaughlin, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. The Board issued the subpoena after it had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. McLaughlin’s medical marijuana recommendations. Dr. McLaughlin objected to the Board’s subpoena, arguing that CDPHE’s referral policy was invalidly adopted. On that basis, he refused to produce the subpoenaed records. The Board filed an application for an order enforcing the subpoena. The district court concluded that although the physician referral policy was invalid, the subsequent investigation and subpoena were for a lawfully valid purpose, and the court granted the Board’s application.

On appeal, Dr. McLaughlin contended that the subpoena was not issued for a lawful purpose because the policy prompting the Board’s investigation was adopted in violation of Colorado’s Open Meetings Law. Here, the subpoena was issued solely as a result of a physician referral policy promulgated in violation of the Open Meetings Law and the State Administrative Procedure Act. Because the Board had no basis for investigating the physician apart from the invalid physician referral policy, the subpoena had no lawful purpose and the district court erred in enforcing the subpoena.

The judgment was reversed. However, the dissent agreed with the majority in Colorado Medical Board v. Boland, 2018 COA 39, and would affirm the district court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: District Court Did Not Abuse Discretion in Refusing to Enforce Subpoena

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. TriCore Reference Laboratories on February 27, 2017.

The Equal Employment Opportunity Commission is empowered to investigate charges of discrimination and enforce both Title VII, which prohibits employers from discriminating based on sex, including pregnancy, and the Americans with Disabilities Act of 1990, which prohibits employers from discriminating against employees on the basis of their disability and requires employers to make “reasonable accommodations” to qualified individuals. When investigating charges of discrimination, the EEOC may obtain evidence that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation. If the employer refuses to comply, the EEOC may issue a subpoena compelling production. If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to comply.

Kellie Guadiana worked for TriCore Reference Laboratories as a phlebotomist. She requested accommodations due to her rheumatoid arthritis, which was exacerbated by her pregnancy. TriCore’s human resource department determined Ms. Guadiana could not perform the essential functions of her position safely. The HR department offered her the opportunity to apply to other positions within the company. When Ms. Guadiana did not apply to a new position, TriCore terminated her.

Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). TriCore explained to the EEOC that it had provided reasonable accommodations by offering her the chance to apply to a new position within the company. EEOC explained that this was a violation of the ADA because the ADA required TriCore to reassign Ms. Guadiana rather than merely provide her with the opportunity to apply to a new position. TriCore statement led the EEOC to suspect that TriCore had a company policy or practice of refusing to provide reassignment as a reasonable accommodation. Due to this, the EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and failure to accommodate women with disabilities due to pregnancy.

The EEOC sent TriCore another letter requesting a complete list of TriCore employees who had requested an accommodation for disability and a complete list of TriCore employees who had been pregnant while at TriCore and whether they sought or were granted accommodations. TriCore refused to comply. The EEOC subpoenaed the information. When TriCore refused to comply, the EEOC submitted an application to the US District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. The district court denied the EEOC’s application noting that the EEOC’s real intent in requesting the information was difficult to pin down.

The issue on appeal was whether the district court erred in declining to enforce the EEOC’s subpoena. The Tenth Circuit reviewed the district court’s decision for abuse of discretion. The Tenth Circuit held that the district court did not abuse its discretion in denying the enforcement of either the disability request, which the EEOC asserted was relevant to its investigation into whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), or the pregnancy request, which EEOC asserted was relevant to the investigation whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence).

Under 42 U.S.C. § 2000e, the EEOC is empowered to investigate charges of discrimination. But the EEOC has the burden to demonstrate the relevancy of the information sought in a subpoena. The Tenth Circuit referenced the Supreme Court’s decision in University of Pennsylvania v. EEOC, when stating the law that the EEOC does not need to provide a “specific reason” for requesting the information. However, the Tenth Circuit further cites that case for the law that the EEOC still bears the burden of showing the relevancy of the subpoenaed information.  To do so, the Tenth Circuit held that the EEOC must show that it has a realistic expectation that the information requested would advance the investigation. The EEOC must also establish a link between the EEOC’s investigatory power and the charges of discrimination.

The Tenth Circuit held that the EEOC’s intent was difficult to pin down. With regard to the pattern-or-practice evidence, the Tenth Circuit held that the district court did not abuse its discretion in denying the EEOC’s request. The Tenth Circuit held that TriCore’s admission that it did not reassign Ms. Guadiana did not justify the EEOC’s expanded investigation beyond its initial investigation into Ms. Guadiana’s individual case. The Tenth Circuit held that the EEOC’s letter informing TriCore of its expanded investigation did not constitute a “charge” of discrimination, which is required under § 2000e-8 for the EEOC to seek information about alleged discrimination.  The EEOC had not alleged anything suggesting a pattern or practice of discrimination by TriCore. Therefore, the Tenth Circuit held that the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA, without more, was insufficient to warrant the EEOC’s expanded investigation. The EEOC did not satisfy its burden to justify its expanded investigation.

Next, the Tenth Circuit held that the EEOC waived the disability request part of its comparator-evidence argument on appeal. This was due to the fact that the EEOC limited its comparator-evidence argument on appeal to the pregnancy request.  Therefore, the Tenth Circuit considered only the pregnancy request.

The Tenth Circuit held that the EEOC’s pregnancy request could seek information that was potentially relevant to Ms. Guadiana’s charge, which could tend to prove she was denied an accommodation on the basis of her disability. However, the EEOC did not present those relevance arguments in district court. Therefore, the Tenth Circuit held that the EEOC failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. The Tenth Circuit held that the district court did not abuse its discretion.

The Tenth Circuit affirmed the district court’s holding.

Colorado Court of Appeals: State Entitled to Attorney Fees for Successful Subpoena Enforcement Action

The Colorado Court of Appeals issued its opinion in State of Colorado v. Vaden Law Firm, LLC on Thursday, May 21, 2015.

Investigative Subpoena—Colorado Consumer Protection Act—Attorney Fees.

The State of Colorado served an investigative subpoena on respondent Vaden Law Firm LLC (Vaden) pursuant to CRS § 6-1-108(1) of the Colorado Consumer Protection Act. The State sought records pertaining to costs Vaden had tried to recover on behalf of lenders in foreclosure actions. Vaden refused to produce any records. The State filed an application to enforce the Vaden subpoena in Denver District Court pursuant to CRS § 6-1-109. The court ordered Vaden to produce the requested records but denied the State’s request for attorney fees.

On appeal, the State contended that the district court’s denial of attorney fees was contrary to the plain language of CRS § 6-1-113(4). Subsection 113(4) requires an award of attorney fees and costs in all actions in which the Attorney General “successfully enforces this article.” This includes an award of attorney fees and costs in favor of the State when the State successfully enforces an investigative subpoena pursuant to the procedure dictated by CRS § 6-1-109. Accordingly, the district court’s order was vacated and the case was remanded for a determination of the State’s reasonable attorney fees and costs to be awarded against Vaden.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: C.R.C.P. 45 Inapplicable to Administrative Subpoena Enforcement Proceedings Under UCCC

The Colorado Supreme Court issued its opinion in Tulips Investments, LLC. v. State of Colorado ex rel. Suthers on Monday, January 12, 2015.

Uniform Consumer Credit Code—Subject Matter Jurisdiction—Authority to Issue and Enforce Administrative Subpoena—CRS § 5-6-106.

The Supreme Court held that, in enacting the Uniform Consumer Credit Code (UCCC), the General Assembly conferred administrative subpoena issuance authority on the UCCC Administrator and authorized trial courts to enforce such a subpoena against a nonresident who is alleged to have violated the UCCC and has refused to obey a subpoena. In so holding, the Court distinguished its decisions in Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957), and Colorado Mills, LLC v. SunOpta Grains & Foods Inc., 269 P.3d 731 (Colo. 2012). Those cases addressed a limitation under CRCP 45 restricting service of a subpoena in civil actions to areas located within the state. CRCP 45 is inapplicable to administrative subpoena enforcement proceedings under the UCCC, which applies equally to residents and nonresidents suspected of conduct violating its provisions. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Tribe, as Non-party, Was Entitled to Tribal Immunity from Subpoena Duces Tecum

The Tenth Circuit Court of Appeals published its opinion in Bonnet v. Harvest (US) Holdings, Inc. on Tuesday, January 28, 2014.

Plaintiff Robert Bonnet is a petroleum landman who conducts business through his sole proprietorship, Bobby Bonnet Land Services; also a Plaintiff. In 2008, Plaintiffs entered into a written contract with the Energy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reservation to serve collectively as an independent contractor and consultant. When the Tribe terminated this contract in April 2009, Plaintiffs, on the basis of diversity jurisdiction, sued various companies and individuals (but not the Tribe) in federal court, alleging these defendants caused the Tribe to terminate this contract prematurely. Plaintiffs served the Tribe with a non-party subpoena duces tecum requesting documents relevant to their suit. The Tribe moved to quash the subpoena based on the doctrine of tribal sovereign immunity. The district court denied the Tribe’s motion to quash based on tribal immunity, but modified the subpoena to limit or strike requests it deemed overbroad. The Tribe appealed.

The issue before the court was whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. Pursuant to the collateral order doctrine, the Tenth Circuit held the answer is yes.

The court first held that the district court’s denial of the Tribe’s motion to quash the subpoena based on tribal sovereign immunity was an immediately appealable order notwithstanding lack of a final judgment, because the court has recognized that the denial of tribal immunity is an immediately appealable collateral order: (1) the order conclusively determined the disputed question of tribal immunity, (2) tribal immunity was an important issue completely separate from the merits of the case, and most importantly, (3) the denial of tribal immunity was effectively unreviewable on appeal from a final judgment because tribal immunity was an immunity from suit rather than merely a defense to liability, which was effectively lost if the case was allowed to proceed. Thus, the Tenth Circuit concluded it had jurisdiction over this appeal.

The court then turned to the legal question whether the Tribe, as a non-party, was entitled to tribal immunity from a subpoena duces tecum. The parties here disputed only whether a subpoena served on a non-party tribe in a civil case in federal court is a “suit” triggering tribal sovereign immunity in the absence of congressional authorization or tribal waiver. This was an issue of first impression in this Circuit.

Early American jurisprudence defined a “suit” as the prosecution of some demand in a Court of justice. A subpoena, on the other hand, merely compels the production of evidence, which the court needs in order to fully and fairly adjudicate this underlying claim or demand. “Suit” includes “judicial process,”  and a subpoena duces tecum is a form of judicial process. The logical conclusion, therefore, is that a subpoena duces tecum served directly on the Tribe, regardless of whether it is a party to the underlying legal action, is a “suit” against the Tribe, triggering tribal sovereign immunity.

The court therefore REVERSED the district court’s denial of the Tribe’s motion to quash based on tribal immunity.

SB 14-034: Strengthening the Requirements to Enforce a Subpoena Against a Newsperson

On Wednesday, January 8, 2014, Sen. Bernie Herpin introduced SB 14-034 – Concerning Strengthening the Protection of the Press. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires a party seeking to enforce a subpoena against a newsperson to establish 3 elements by a preponderance of the evidence. As introduced, the bill changes the standard to clear and convincing evidence and requires the party to show the following four elements:

  • The information was not obtained in confidence;
  • The information is highly material and relevant;
  • The information is critical to a material issue; and
  • The information is not obtainable from another source.

On Jan. 15 the bill was heard by the Senate Judiciary Committee; action on the bill was delayed to allow the sponsor to draft amendments.

Colorado Supreme Court: County Court Abused Discretion by Refusing to Consider Motion to Quash Subpoena Regarding Child Victim of Sexual Assault

The Colorado Supreme Court issued its opinion in In re People v. Brothers on Tuesday, May 28, 2013.

Subpoena—Motion to Quash—Preliminary Hearing—Child–Victim—Standing.

After the county court refused to consider a motion to quash the subpoena of an alleged child–victim of sexual assault before a preliminary hearing, the Supreme Court issued a rule to show cause. As a preliminary matter, the Court held that the district attorney has standing to move to quash the subpoena of a third-party alleged victim of sexual assault. The Court also held that the county court abused its discretion by refusing to consider the motion to quash before the preliminary hearing, because the alleged child–victim could suffer harm if required to appear at the preliminary hearing, even if he did not ultimately testify. The Court made the rule absolute.

Summary and full case available here.

State Judicial Revises Fee Payment Request Form, Guide to Determining Indigency, and Forms to Discontinue Sex Offender Registration

The Colorado State Judicial Branch issued updates to six of their Judicial Department Forms (JDF). These updates include changes to the Guide to Determining Indigency, the Request and Authorization for Payment of Fees, a Notice to Subpoena Recipients, and forms to discontinue sex offender registration for non-Colorado convictions.


  • JDF 80.1  – Notice to Subpoena Recipients (04/13)
  • JDF 207 – Colorado Judicial Department Request and Authorization for Payment of Fees (04/13)
  • Guide – Guide for Determining Indigency (CJD 98-01) (R04/13)


  • JDF 473 – Petition to Discontinue Sex Offender Registration – Non-Colorado Conviction or Juvenile Adjudication or Disposition (R03/13)
  • JDF 474 – Notice of Hearing on Petition – Non-Colorado Conviction or Juvenile Adjudication or Disposition (R03/13)
  • JDF 475 – Order to Discontinue Sex Offender Registration – Non-Colorado Conviction or Juvenile Adjudication or Disposition (R03/13)

All of State Judicial’s JDF forms are available on their website. Click here for the Forms page.

Tenth Circuit: No Appellate Jurisdiction Where Grand Jury Subpoena Complied With

The Tenth Circuit published its opinion in In re Grand Jury Subpoena on Friday, March 1, 2013.

The appellant was the sole member of a limited liability company (LLC) whose federal income taxes were being investigated by a grand jury. The “Custodian of Records” of the LLC was subpoenaed to bring LLC records to the grand jury. As the records custodian, the appellant moved to quash the subpoena duces tecum on the ground that it violated his personal Fifth Amendment privilege against self-incrimination. The district court denied the motion to quash and refused to grant a stay pending appeal. The appellant complied with the district court’s order to produce the records.

A protesting grand jury witness may seek appellate review only after the witness refuses to obey the subpoena and is held in contempt. The appellant argued that he came within the Perlman exception that allows a witness to appeal based on a third party’s intent to produce records. The appellant’s argument that the subpoena was directed to the custodian of records of the LLC and the capacity in which he claimed a privilege—as an individual entitled to the protection of the Fifth Amendment—was distinct from his capacity as the LLC’s records custodian did not qualify as a third-party situation. The Tenth Circuit dismissed the appeal because it lacked jurisdiction.

Colorado Court of Appeals: Writ to Transport Inmate from One County Jail to Another Not Functionally Equivalent to Subpoena

The Colorado Court of Appeals issued its opinion in People v. Seader on Thursday, October 25, 2012.

Writ to Transport as Functional Equivalent of a Subpoena to Testify—CRS § 16-5-204(4).

The People’s appeal presented a single issue of first impression: whether a writ to transport an inmate from one county jail to another, before the inmate’s testimony before a grand jury, is the functional equivalent of a subpoena to testify before the grand jury. The Court of Appeals concluded it was not and therefore reversed the judgment dismissing an indictment against defendant for theft by receiving and conspiracy to commit theft by receiving.

Defendant was being held at the City and County of Denver Jail on an unrelated matter. Jefferson County authorities executed a transport writ so he could be taken to Jefferson County Jail to testify before a grand jury. He was never served with a grand jury subpoena.

After defendant arrived at Jefferson County Jail, a district attorney investigator met with him. Defendant was informed he had been transferred to answer questions before a grand jury, if he chose to do so, and that he should consider “helping himself.” Defendant asked to speak with an attorney, but the investigator told him he would need to make his own arrangements to do so.

Defendant was released into the custody of two district attorney investigators and they transported him in shackles and handcuffs to the grand jury waiting area. A deputy district attorney told him he was likely to be charged by the grand jury and he might be able to help himself if he testified. The deputy district attorney told defendant that (1) he was not under subpoena to testify; (2) he could choose not to testify; (3) anything he said could be used against him; and (4) if he chose to proceed without an attorney, he would do so voluntarily. Defendant did not speak to an attorney and no plea agreement was reached.

In the grand jury room, defendant was advised again of his rights. Defendant testified regarding his involvement in the theft and sale of brass cemetery vases and sprinkler parts. He subsequently was indicted.

Defendant moved to dismiss the indictment, arguing, in part, that he was “brought before the grand jury in custody, against his wishes, without a full and effective advisal of [his] right to counsel and his right to remain silent.” The district court granted the motion under CRS § 16-5-204(4).

On appeal, the Court agreed with the People that it was error to find that the writ to transport to the Jefferson County Jail was the functional equivalent of a subpoena. The writ did not compel defendant to appear and give testimony before the grand jury. Therefore, the written advisement requirement of CRS § 16-5-204(4)(a) and (b) was inapplicable. The judgment was reversed and the case was remanded with instructions to reinstate the indictment.

Summary and full case available here.

C.R.C.P. 45, “Subpoena,” amended by Colorado Supreme Court

On Thursday, October 25, 2012, the Colorado Supreme Court released Rule Change 2012(16), which amends Rule 45 of the Colorado Rules of Civil Procedure. The rule change repeals and readopts Rule 45 with changes. The new rule is effective January 1, 2013.

The amendments to Rule 45 were adopted by the Court on Thursday, October 18, 2012.

Click here to review the changes to Rule 45.