Carlson v. Colorado Center for Reproductive Medicine, LLC
1:21-cv-01528
D. Colo.
Apr 29, 2022

Background

  • Plaintiffs Douglas Carlson and Maya Zubkovskaya sued CCRM, Fertility Labs of Colorado, and Dr. Robert Gustofson after IVF treatment produced only aneuploid embryos and defendants sought to transfer/donate embryos under a disputed "Embryo Release."
  • Plaintiffs assert eight claims including breach, fraud, CCPA and negligent misrepresentation; Claims VI–VIII challenge the IVF success‑rate estimates Dr. Gustofson provided in 2018.
  • Defendants moved to compel production of Ms. Zubkovskaya’s infertility‑related medical records from Jan 1, 2014 through present; Plaintiffs moved to compel defendant privilege logs/documents or for in‑camera review.
  • Magistrate Judge Wang found pre‑CCRM (Jan 1, 2014–Dec 11, 2018) infertility records relevant and ordered their production, but declined to find broad relevance for post‑CCRM records.
  • The court held that Zubkovskaya waived the physician‑patient privilege as to pre‑CCRM infertility records that bear on the representations and reliance issues; ordered Plaintiffs to produce those records and a compliant privilege log.
  • The court found Defendants’ privilege log inadequate for asserted attorney‑client and work‑product protections, denied Plaintiffs’ request to deem privileges waived, and ordered Defendants to supplement the log (no in‑camera review ordered at this time).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Relevance of pre‑CCRM infertility records Only facts known to Dr. Gustofson on Dec 11, 2018 matter; older records irrelevant and private Prior records inform what Dr. Gustofson should have known and what he relied on; they affect accuracy and reliance Pre‑CCRM records (Jan 1, 2014–Dec 11, 2018) are relevant and must be produced
Relevance of post‑CCRM infertility records Plaintiffs already produced billing records relevant to damages; broader post‑treatment records not necessary Ongoing IVF treatment bears on damages and loss‑of‑use of embryos Defendants failed to show general relevance; post‑CCRM records not compelled beyond billing/expenses already exchanged
Physician‑patient privilege waiver (pre‑CCRM) Plaintiffs: no personal injury claim; privilege should protect medical privacy Defendants: by making infertility and chance‑of‑success central, Plaintiffs put medical condition at issue and waived privilege Waiver applies as to pre‑CCRM infertility records tied to asserted claims; privilege does not extend to unrelated medical history
Sufficiency of Defendants’ privilege log; request to deem privilege waived or for in‑camera review Plaintiffs: log is vague (unclear authors/attorneys/recipients/dates); seek waiver or in‑camera review Defendants: log adequate; privileges timely asserted; work product and attorney‑client apply Log is insufficient; waiver sanction is too harsh — Defendants must supplement the log per Rule 26(b)(5); no in‑camera review now, but Plaintiffs may renew after supplementation

Key Cases Cited

  • In re Bard Filters Prods. Liab. Litig., 317 F.R.D. 562 (D. Ariz. 2016) (discusses Rule 26(b)(1) scope after 2015 amendment removing "reasonably calculated" language)
  • Simpson v. Univ. of Colo., 220 F.R.D. 354 (D. Colo. 2004) (responding party bears burden to show discovery is oppressive or not relevant)
  • Tara Woods Ltd. P’ship v. Fannie Mae, 265 F.R.D. 561 (D. Colo. 2010) (party moving to compel must show opposing answers incomplete)
  • Bristol Bay Prods., LLC v. Lampack, 312 P.3d 1155 (Colo. 2013) (elements of fraud and reliance framework)
  • Allen v. Steele, 252 P.3d 476 (Colo. 2011) (elements of negligent misrepresentation)
  • Garcia v. Medved Chevrolet, Inc., 263 P.3d 92 (Colo. 2011) (elements of a private CCPA claim)
  • Alcon v. Spicer, 113 P.3d 735 (Colo. 2005) (physician‑patient privilege and limited waiver when condition is placed at issue)
  • Weil v. Dillon Cos., Inc., 109 P.3d 127 (Colo. 2005) (physician‑patient privilege applies to pretrial discovery)
  • WildEarth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243 (D. Colo. 2010) (privilege‑log content requirements and insufficiency standards)
  • Frontier Refining, Inc. v. Gorman‑Rupp Co., Inc., 136 F.3d 695 (10th Cir. 1998) (work‑product doctrine governed by federal standard)
  • In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (work product not automatically waived by disclosure to third party)
  • In re Qwest Commc’ns Int’l Inc., 450 F.3d 1179 (10th Cir. 2006) (waiver of privilege by voluntary disclosure)
  • United States v. Johnston, 146 F.3d 785 (10th Cir. 1998) (attorney‑client communications must concern legal advice to be protected)
  • Kirzhner v. Silverstein, 870 F. Supp. 2d 1145 (D. Colo. 2012) (in‑camera review is discretionary and not a routine substitute for adequate privilege documentation)
  • Martensen v. Koch, 301 F.R.D. 562 (D. Colo. 2014) (analysis of work‑product protection for materials prepared in anticipation of litigation)
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