United States District Court, D. New Mexico
TIERRA BLANCA RANCH HIGH COUNTRY YOUTH PROGRAM; SCOTT CHANDLER; COLETTE CHANDLER; and BRYCE HALL, Plaintiffs,
FELIPE GONZALES, Defendant.
ORDER OVERRULING OBJECTIONS AND STRIKING NOTICE OF
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiffs'
objections (Doc. 176) to Judge Wormuth's order (Doc. 172)
granting former New Mexico Governor Susanna Martinez's,
former Department of Correction's Secretary David
Jablonski's, and former general counsel Steven
Blankinship's respective motions for protective orders
and to quash subpoenas for their depositions. Plaintiffs
challenge, in sum, Judge Wormuth's reliance on and
application of the “apex doctrine” as articulated
in Naylor Farms, Inc. v. Anadarko OGC Co., 2011 U.S.
Dist. LEXIS 68940 (D. Colo. June 27, 2011). Under that
approach, the Court may prevent the deposition of
high-ranking government officials where one or more of the
following circumstance(s) exist: (1) the official has no
“unique knowledge” of the subject matter; (2)
another witness could provide the information sought; (3) an
alternative discovery method would provide the information
sought; and/or (4) the official would suffer “severe
hardship” in performing his or her official duties if
forced to sit for a deposition. Id., at *3. Judge
Wormuth ultimately determined that Plaintiffs failed to show
any of these officials had unique, personal knowledge that
would entitle Plaintiffs to depose them. (Doc. 172).
Rule of Civil Procedure 72(a) allows a party to seek review
of a magistrate judge's non-dispositive order. To do so,
the aggrieved party must file objections within fourteen days
after service of the order. Fed.R.Civ.P. 72(a). “The
district judge in the case must consider timely objections
and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Id. The
clearly-erroneous standard is difficult to satisfy. This
Court must have “a definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)
(internal quotation omitted). Under the “contrary to
law” law standard, the Court reviews the pretrial
judge's legal determinations de novo and sets
them aside if the judge applied an incorrect legal standard.
Kennicott v. Sandia Corp., 327 F.R.D. 454, 464
(D.N.M. 2018) (citations omitted). “In sum, it is
extremely difficult to justify alteration of the magistrate
judge's non-dispositive actions by the district
judge.” Id. (citations omitted).
Court has reviewed Judge Wormuth's order in accordance
with the standard above and is not left with a firm and
definite conviction that a mistake was made. Contrary to
Plaintiffs' contention, it was not legal error for Judge
Wormuth to adopt the apex doctrine instead of applying Rule
26(c)'s standard for protective orders. As Plaintiffs
observe, the Sixth Circuit favors a rules-based approach,
see Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir.
2012), but Sixth Circuit precedent is not binding here. While
the Tenth Circuit could adopt Serrano's
reasoning in the future, Plaintiffs do not point to authority
foretelling any such eventuality or explain why Judge Wormuth
was foreclosed from relying on a decision from a federal
court in this Circuit. See, e.g., Baca
v. Berry, 806 F.3d 1262, 1272 (10th Cir. 2015)
(rejecting claim of reversible error where the plaintiffs
could not point to a Tenth Circuit case and it was far from
clear that the court would adopt the bright-line rule set
forth in an out-of-circuit decision). In any event,
Plaintiffs did not cite Serrano to Judge Wormuth in
the first place.
Judge Wormuth misapply the apex doctrine as Plaintiffs argue
in the alternative. True, Governor Martinez, Secretary
Jablonski, and general counsel Blankinship no longer hold
office, but Judge Wormuth determined that Plaintiffs waived
any argument that they are now free from the press of
official business. (Doc. 172, at 6). Plaintiffs do not object
to the waiver analysis here, and the Court will not consider
Plaintiffs' unpreserved challenge. See Fed. R.
Civ. P. 72(a) (“A party may not assign as error a
defect in the order not timely objected to.”). Likewise
unavailing is Plaintiffs' more general complaint that
documents attached to their response briefs show the former
governor and her staff had knowledge of and involvement in
the investigations. The Court declines to comb the record to
flesh out this conclusory contention, but notes Judge Wormuth
fully considered the exhibits and concluded none of the
officials had unique personal knowledge. Plaintiffs
object to the “unique personal knowledge”
standard, but fail to identify any clear error in Judge
Wormuth's reading of the exhibits as showing only
secondhand information of the events in question.
their objections, Plaintiffs point to depositions that
occurred after Judge Wormuth issued the protective orders.
New exhibits not before Judge Wormuth are attached to
Plaintiffs' objections and by way of a “notice of
filing.” (Docs. 176 & 205). In a previous order,
the Court warned against presenting new argument and evidence
in notices. (Doc. 197). The practice is improper: it is
neither contemplated nor authorized by the Federal Rules of
Civil Procedure and does not offer any mechanism by which an
opposing party might respond as fundamental fairness would
dictate. Moreover, there is no basis to submit new
information to a reviewing court in this context.
See Fed. R. Civ. P. 72(a). Because the materials
were unavailable to Judge Wormuth, the Court necessarily
cannot determine whether any error occurred in Judge
Wormuth's analysis of that evidence. Accordingly, the
Court declines to consider any new information or argument
here from the notice or the objections. See In re Search
of Info., 212 F.Supp.3d 1023, 1038 (D. Kan. 2016)
(“[T]his court may not consider new evidence while
sitting in review of a magistrate judge's
[non-dispositive] order[.]”). Further, the Court will
strike the notice and exhibits thereto. Plaintiffs may
present their new information to Judge Wormuth by way of an
appropriate motion. See, e.g., Fed. R. Civ. P. 60.
IS, THEREFORE, ORDERED that Plaintiffs'
objections (Doc. 176) to Judge Wormuth's Order Regarding
Motions for Protective Order and to Quash Subpoenas Pursuant
to Apex Doctrine are OVERRULED.
IS FURTHER ORDERED that Plaintiffs' Notice of
Filing in Support of Objections (Doc. 205) is hereby
STRICKEN from the record.
 Federal Rule of Civil Procedure
26(c)(1)(A) allows the Court “for good cause issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense”
by, among other remedies, preventing a deposition. As
distinct from the apex doctrine, Rule 26(c) appears to
require a showing of ...