*1 This case arises from an accident on October 10, 2022, in which Allen Latimore lost his life. Doc. 65 at 1. The decedent's spouse, Marion Lati-more, filed an action for wrongful death and survivor damages in state court on January 9, 2023, and Defendants removed the case to this Court on February 6, 2023. Id.

On March 14, 2024, Magistrate Judge Kathryn Starnella heard oral argument on a discovery dispute pertaining to Defendants’ subpoena for the decedent's cell phone records. Id. The contested subpoena requested the following information from the decedent's phone:

Id. at 2. Citing concerns about overbreadth and intrusion into protected privacy interests, Judge Starnella decided to quash this subpoena. Doc. 65-1 at 24. Defendant Shawn Vincent subsequently filed an objection to this ruling, which is before me now. Doc. 65.

When reviewing a magistrate judge's order that is not dispositive of a party's claim or defense, a Court should “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). The magistrate judge's factual findings may not be set aside unless “on the entire evidence [the court] is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Residences at Olde Town Square Assoc. v. Travelers Cas. Ins. Co. of Am., 413 F. Supp. 3d 1070, 1072 (D. Colo. 2019) (citing Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)). The legal determinations may be set aside if the magistrate judge applied the wrong legal standard or applied the appropriate legal standard incorrectly. Olde Town Square, 413 F. Supp. 3d at 1072 (citing 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3069 (2d ed.)).

Defendant contends that the decedent's right to privacy in his phone records did not survive his death and that Plaintiff therefore has no standing to object to his proposed subpoena on those grounds. Doc. 65 at 3. Plaintiff argues in response that Marion Latimore has her own right to privacy in these phone records to the extent that they contain her communications with the decedent. Doc. 65-1 at 21. And Judge Starnella raised the possibility that the subpoena in question might return communications that were protected by a marital privilege. Doc. 65-1 at 24.

I do not find it necessary to rule on these questions in order to decide the issue before me.[1] Even if Plaintiff can show that “it has a legitimate expectation that the requested materials or information is confidential”, Defendant has shown a “compelling need” for the information and convincingly argued that this “information is not available from other sources.” In re District Court, City & Cty. of Denver, 256 P.3d 687, 691–92 (Colo. 2011). Furthermore, the Federal Rules of Civil Procedure empower courts to modify or narrow subpoenas that are overbroad or require disclosure of potentially private information. See Fed. R. Civ. P. 45(d)(3)(A). I can therefore construe the subpoena in such a way as to mitigate the risks envisioned by the Plaintiff.

*2 The compelling need in this instance arises from the possibility that Mr. and Ms. Latimore may have been going through a divorce or at least a separation at the time of his death, a fact which, if true, would directly bear on at least one of Ms, Latimore's claims: loss of consortium. See Docs. 65-1 at 25; 3 at 5–6. Ms. Latimore's loss of consortium claim seeks damages for the loss of “affection, companionship, aid, comfort and consortium of her husband, decedent Allen Latimore.” Doc. 3 at 6. As counsel for the Defendant argued at the discovery hearing on March 14, “damages are different for a couple that was happily married versus a couple that just filled out divorce papers.” Doc. 65-1 at 25.

Unlike in Clay v. Lambert, where Chief Magistrate Judge Hegarty quashed a subpoena to the extent it sought specific phone numbers to which the Defendants had made calls or sent messages, the proponents of the subpoena in this case have adequately shown a compelling need for this information. No. 17-cv-0085, 20107 WL 4755152 at *1 (D. Colo. Oct. 20, 2017). In Lambert, Judge Hegarty pointed out that the “Plaintiffs’ only argument for the relevance of the requested information” – that it would “reveal Defendants’ location” – was flawed because “the specific people Defendants communicated with will not demonstrate their location.” Id. at *3. Here, to the contrary, the specific people with whom Mr. Latimore was communicating have a direct bearing on the Plaintiff's claim, as discussed above. If it turns out that Mr. Latimore was rarely in touch with his wife, that may tend to show that their relationship was on the rocks and her loss of consortium claim is less valuable. If the call and text log data tend to show that Mr. Latimore was romantically involved with another woman, that may tend to prove the same. Defendant has argued that this information is not obtainable from another source, and I see no reason to disagree. Doc. 65-1 at 18. Though it was suggested at the discovery hearing that the same information could be obtained less intrusively by simply requesting cell tower location data, this general type of geolocation information is not a substitute for information showing the specific people with whom Mr. Latimore was in contact, at least for the purposes of evaluating Plaintiff's loss of consortium claim. See Id. at 25–6.

Despite the existence of a compelling need for the requested information, however, the proposed subpoena is overbroad as it has been drafted by the Defendant. To begin, it is devoid of any reasonable temporal limitations. Additionally, though Defendant has indicated that his subpoena is directed towards “transactional records” as opposed to substantive communications, the subpoena itself does not clearly indicate that he is not seeking the actual substance of the decedent's calls and messages. Doc. 65 at 6. Revising the subpoena to clarify this would go a long way to mitigate the privacy concerns present here. Defendant also has stated that he would be “happy to stipulate to a reasonable protective order on [this] issue.” Doc. 65-1 at 25. This would, of course, also function to mitigate privacy risks associated with disclosure of potentially sensitive information.

For these reasons, and to the extent that Defendant's proposed subpoena is overbroad and unduly burdensome as it is currently drafted, I overrule his objection to Judge Starnella's order. Considering the compelling need for the requested information, however, I also remand for the parties to negotiate a protective order and a reasonable temporal restriction on the subpoena. After the parties find a reasonable compromise on these issues and Defendant revises the subpoena to clarify that he is only seeking “transactional records”, I see no reason why the subpoena should not issue.

*3 It is ORDERED that:

Defendant Shawn Vincent's F.R.C.P. 72 Objection in Response to Magistrate's Order Quashing Defendant's Subpoena to Produce Allen Latimore's Cell Phone Records (Doc. 65) is OVERRULED; and

It is FURTHER ORDERED that:

Defendant revise the subpoena to clarify that he is only seeking “transactional records” and the parties confer on reasonable temporal restrictions and on a protective order regarding the information that is responsive to Defendant's subpoena.