COLORADO COURT ISSUES IMPORTANT DISCOVERY DECISION

Daniel McCarthy, Manley Burke

The parents of Brett Griffen, a pledge at the Sigma Alpha Mu (“SAM”) chapter at the University of Delaware who died from excessive alcohol consumption, sued SAM, the Delta Lambda Chapter of SAM and numerous members of the fraternity in Delaware Superior Court.  The plaintiffs asserted claims for negligence, negligence per se, gross negligence and/or reckless misconduct, survival and wrongful death.¹

During the discovery phase of the lawsuit, the plaintiffs motioned the Delaware court for commissions seeking a subpoena against James R. Favor in Colorado.  SAM is a 1/7^th owner of James R. Favor & Company, the insurance company that provides insurance programs for fraternities and sororities.  The plaintiffs sought numerous documents from Favor, including documents related to broader topics not directly related to SAM, such as “studies or analyses of risk of harm arising from hazing, misuse of alcohol, or other misconduct during recruitment activities; evaluations of risk management policies, different types of risk management policies, and their relative effectiveness in reducing risk.”

Favor filed a motion to quash the subpoena in the District Court of Denver, arguing, in part, that the subpoenas were overbroad, unreasonable, oppressive, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.  After the court first determined that it had jurisdiction to hear the motion to quash and that Favor had standing to bring the motion, the court ultimately granted the motion and quashed the subpoena.²

The court started its analysis by looking at the basics of discoverable evidence.  The Colorado rules of civil procedure, like almost every state and the federal rules of civil procedure, provide for broad discovery.  Specifically, Colorado Civil Rule 26 provides that “parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter….  Relevant information need not be admissible at the trial of the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

In discovery disputes, close cases are decided in favor of allowing discovery.  The party opposing a discovery request has the burden of showing “good cause” that he is entitled to a protective order to protect from “annoyance, embarrassment, oppression, or undue burden or expense.”

In this case, the plaintiffs argued “that the long-standing history of injuries and deaths during fraternity recruitment activities posed an unreasonable risk of harm, SAM knew this risk, and was negligent and engaged in reckless misconduct by failing to take reasonable steps to prevent that harm from occurring.”  The plaintiffs sought the documents from Favor to establish that SAM knew the risks and foreseeability of harm to their son and other pledges.

Favor argued that, pursuant to Furek v. Univ. of Delaware, 594 A.2d 506 (Del. 1991), national fraternities are generally not responsible for the daily supervision of local chapters.  Accordingly, Favor argued that the discovery of all documents from every SAM chapter as well as all fraternal organizations insured by James R. Favor & Company were not properly discoverable.  Favor also argued that most of the requested documents were not only irrelevant to the plaintiffs’ case, but also confidential business records and proprietary in nature.

The court then examined case law from around the country on the topic of a national organization’s liability for the actions of a local chapter.  The court noted that the case law related to the national’s liability in other jurisdictions has focused on the key issue of whether the national organization had specific knowledge of hazing at the relevant chapter.  Generally speaking, if the national organization had no knowledge or notice of the alleged hazing, no liability has attached.

Following that case law, the court held, “It is clear that the knowledge and notice, which is relevant to Plaintiffs’ case against SAM is that which would illustrate SAM had knowledge or notice about hazing and excessive alcohol consumption by members of Delta Lambda, the local SAM chapter at the University of Delaware.  What actual knowledge or notice SAM may have had about other local chapters across the country or what knowledge Favor may have about other fraternity/sorority/owners is irrelevant to the underlying Delaware action.”

Though this opinion is just from a trial court in Denver, this is a good precedent for national organizations and insurance companies to use in hazing-related lawsuits.  Plaintiffs’ attorneys will often ask for every possible document under the sun.  This decision helps define the limitations for what is relevant and subject to discovery.

¹Case No. C.A. 09C-04-067 JAP.

²See Timothy Griffen and Julie Griffen v. Sigma Alpha Mu Fraternity, et al., Case No. 2009 CV 11308, District Court, City and County of Denver, Colorado.