Martensen v. Koch
301 F.R.D. 562
D. Colo.2014Background
- False imprisonment claim remains; Bear Ranch detention details and sequence of events described; Koch’s Grant Thornton investigation cited; privilege and work-product issues raised via crime-fraud exception; multiple discovery motions targeted deposition testimony and documents; court granted in part and denied in part, allowing limited reopening deposition and selective document production.
- Defendant Koch is founder/owner of Oxbow entities; Grant Thornton conducted a forensic review; Bear Ranch events occurred March 21-22, 2012 with interviews and confinement; plaintiff alleges intimidation and speech-chilling, seeking damages and punitive relief; privilege and crime-fraud issues govern discovery scope.
- Discovery disputes center on attorney-client privilege and work product doctrine, their waivers, and the crime-fraud exception; court applies Colorado privilege law in a diversity context and analyzes whether privilege is vitiated by crime-fraud exception.
- Grant Thornton reports and Bear Ranch planning materials are at issue; court requires production of portions addressing Martensen’s conduct and tax concerns, and allows scrutiny of related planning documents; audio/video interview tapes may be produced; notes for interview of Mr. Black deemed non-privileged.
- Court addresses non-party subpoena issues under Rule 45 and Denies without prejudice to transfer to the issuing court; overall, amendments and extensions granted to permit limited re-deposition and additional discovery time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether crime-fraud exception applies to Koch's privilege | Martensen seeks to pierce privilege due to crime-fraud concerns | Privilege should stand absent fraud evidence | Prima facie showing allows crime-fraud exception to apply to Bear Ranch materials |
| Scope of discovery for Grant Thornton materials | Materials relate to false imprisonment and Koch defenses | Protected by work product/attorney-client privilege | Portions addressing Martensen’s conduct and tax concerns must be produced; more broadly privileged portions limited but not entirely barred |
| Whether Bear Ranch planning documents are privileged | Planning docs are relevant to liability and punitive damages | Privileged as attorney-coach material | Planning documents related to Bear Ranch must be produced to the extent they address crime-fraud exception or relevance to defense |
| Whether to extend Koch's deposition and allow re-examination | Need to question Koch on planning and bear ranch events | Already deposed; risk of redundancy | Limited re-examination warranted; additional three hours allowed under conditions |
| Non-party deposition and production of documents (Bennett) | Bennett subpoena seeks relevant communications; Texas issues govern | Court lacks jurisdiction; issues belong to issuing court | Denied without prejudice; concerns should be raised in the issuing court |
Key Cases Cited
- In re Grand Jury Subpoenas, 144 F.3d 653, 144 F.3d 653 (10th Cir. 1998) (crime-fraud exception applies to attorney-client privilege and work product in appropriate cases)
- Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496 (10th Cir. 1980) (non-testifying experts may be discoverable under exception standards)
- Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695 (10th Cir. 1998) (waiver may occur if privilege holder relies on privilege to defend)
- White v. American Airlines, Inc., 915 F.2d 1414 (10th Cir. 1990) (Colorado privilege law governs in diversity; attorney-client privilege scope)