EMILY ROSE LASALA, Plaintiff, v. JOHN A. MILLARD; JOHN A. MILLARD, M.D., P.C.; MATTHEW B. BAKER; and PHILIPPE A. CAPRARO, MD., PC., Defendants Civil Action No. 1:19-cv-00857-DDD-SKC United States District Court, D. Colorado filed April 07, 2021 Counsel Adam David Dolce, Claremont, CA, for Plaintiff. Douglas C. Wolanske, Katherine Anne Bailey, Messner Reeves LLP, Denver, CO, for Defendants. Domenico, Daniel D., United States District Judge ORDER ON MOTIONS *1 This is a medical malpractice case governed by Colorado law. Plaintiff sought a sub-muscular breast augmentation from Defendant Dr. John Millard. After the surgery, Plaintiff was in pain and discomfort from what turned out to be a detachment of her pectoral muscle. Due to this complication, Dr. Millard referred Plaintiff to Dr. Matthew Baker, the second defendant in this case. After seeing Plaintiff, Dr. Baker conferred with Dr. Millard about the surgery and exchanged medical information and photographs relating to Plaintiff's surgery. Plaintiff then sued Dr. Millard for medical malpractice stemming from her surgery and later sued Dr. Baker for allegedly breaching his fiduciary duty and invading her privacy by sharing confidential information with Dr. Millard. There are eight motions pending before the Court, including two motions for summary judgment and a motion to dismiss. These motions, particularly the dispositive ones, center on whether Plaintiff has put forth sufficient expert testimony or timely disclosed experts to the extent they are required in this case. As set forth below, Defendant Dr. Baker and his employer are dismissed from this case because Plaintiff has failed to submit adequate expert testimony as to her claims against them. But the medical malpractice claims against Defendant Dr. Millard and his associated corporate entity may proceed for now. BACKGROUND Defendant Dr. John Millard performed a sub-muscular breast augmentation surgery on Plaintiff Emily LaSala in March 2017. (Doc. 31 at ¶¶ 11–12.) She experienced discomfort and pain after the surgery and brought this to Dr. Millard's attention. (Id. at ¶ 22.) She was later diagnosed with “capsular contracture”—detachment of her pectoral mus-cle—and referred to Defendant Dr. Matthew Baker for follow-up. (Id. at ¶¶ 28–29.) After Ms. LaSala came to Dr. Baker, he began communicating with Dr. Millard about Ms. LaSala's surgery and treatment without any initial objection by Ms. LaSala. (See Doc. 92 at pp. 3–4; Doc. 97 at pp. 2–4.) Ms. LaSala contends, however, that the ongoing communications between the two doctors went beyond the scope of her treatment and that those communications were primarily for the purpose of helping Dr. Millard escape liability. (See Doc. 92 at pp. 3–4; Doc. 97 at pp. 3–6.) After sending a pre-litigation demand letter to Dr. Millard, Ms. LaSala brought this suit against him and a related Colorado corporation in March 2019, alleging medical malpractice. (Doc. 1.) Ms. LaSala then filed a “certificate of review”—an affidavit confirming that counsel has conferred with a qualified expert who believes the relevant legal claims have some justification—with the Court as is generally required under Colorado law to pursue a medical malpractice claim. Ms. LaSala later amended her complaint to add Dr. Baker as a defendant to breach-of-fiduciary-duty, invasion-of-privacy, and civil conspiracy claims. (Doc. 31.) Ms. LaSala did not file a certificate of review as to her claims against Dr. Baker. *2 Dr. Millard and his related corporation later moved for summary judgment, arguing that the claims against them must be supported by expert testimony and that Plaintiff had not presented any expert testimony as to those claims. (Doc. 52.) In her initial disclosures, Ms. LaSala disclosed no “retained experts” but stated that she would “rely upon the Defendants as expert witnesses” to prove her own affirmative case. (Doc. 52-4 at pp. 1–2.) Ms. LaSala apparently did not depose the Defendants until several weeks after disclosing them as her experts. After those depositions were taken, and after the deadlines for disclosing initial experts had passed, Ms. LaSala filed a motion to extend her deadline to disclose experts so that she could designate her new “rebuttal” experts, a doctor and an attorney, as initial experts. (Doc. 54.) Within a week of that filing, Defendants filed a joint motion to strike Ms. LaSala's supplemental expert disclosures as untimely or otherwise improper. (Doc. 57.) Defendants then filed a motion to dismiss premised on Ms. LaSala's failure to submit certificates of review that conformed with the requirements of Colorado Revised Statutes § 13-20-602. (Doc. 71.) Shortly before that motion was filed, counsel for Ms. LaSala revealed that the consulting physician for the original certificate of review regarding the claims against Dr. Millard was, in fact, Dr. Baker: Dr. Millard's co-defendant. Dr. Millard argues, based in part on Dr. Baker's deposition testimony in this case, that Dr. Baker would not have or did not certify that Ms. LaSala's case should go forward, contrary to the certificate that Ms. LaSala's counsel filed and attested to. Soon thereafter, all Defendants filed a joint motion to amend the scheduling order to allow for a deposition of Ms. LaSala. (Doc. 84.) After these filings, Dr. Baker filed his own motion for summary judgment, arguing that Ms. LaSala has not presented required expert testimony to prove her claims against him and that the claims against his related corporate entity fail as a matter of law. (Doc. 92.) Ms. LaSala, for her part, filed a motion for sanctions, arguing that Defendants failed to timely produce a text message between Dr. Baker and Dr. Millard and destroyed other evidence in this case. (Doc. 95.) Related to that motion, Ms. LaSala also filed a motion to disqualify Dr. Millard's counsel, arguing that she needs to depose attorneys and paralegals representing Dr. Millard because they are allegedly complicit in destroying or withholding evidence. (Doc. 105.) ANALYSIS I. Ms. LaSala's Expert Disclosures and Defendants’ Deposition of Her The Court will first address the issue of Ms. LaSala's expert disclosures because resolution of that issue informs the resolution of several dispositive issues. Scheduling orders can only be amended if the movant shows good cause. Fed. R. Civ. P. 16(b). If a party failed to make a required disclosure under Rule 26(a), a court may disallow that party from using that disclosed witness or information in the litigation unless the failure “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). “In addition to or instead of this sanction,” the court may order payment of fees or other appropriate sanctions. Fed. R. Civ. P. 37(c)(1). “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.” Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (internal citation and quotation marks omitted). The following factors guide this discretionary analysis: prejudice to the party against whom testimony is offered, the ability to cure any such prejudice, the potential for disruption at trial, and the moving party's bad faith or willfulness. Id. At first, Ms. LaSala did not retain her own experts to prove her claims in this case. Instead, she made the unorthodox decision to rely solely on the Defendants in this case to testify that they had breached the standard of care. She also chose this path before she had deposed the two Defendants. But after deposing the Defendants—and after the deadlines for disclosing both initial and rebuttal experts had passed—Ms. LaSala changed her mind. After these deadlines had passed, she formally disclosed, for the first time, her own retained experts. (Doc. 57-4.) Ms. LaSala also failed to provide expert reports for any of her experts initially but later filed them with the Court. (See Docs. 61-1, 61-2.) *3 Ms. LaSala now invokes Rule 37(c), arguing that she should be able to offer testimony from two untimely disclosed experts: Dr. Moliver, who would offer testimony relating to the medical malpractice claims against Dr. Millard, and Ms. Eiselein, an attorney who would offer testimony relating to the fiduciary-duty and invasion-of-privacy claims against Dr. Baker. A. Dr. Moliver As grounds for her untimely disclosure of Dr. Moliver, Ms. LaSala argues that the delay was due to failed meet-and-confer discussions and the apparent “revelation” that Dr. Baker's opinions as to Dr. Millard's negligence—as revealed during Dr. Baker's deposition— were not as favorable as she would have liked. Several factors weigh against permitting Ms. LaSala's late disclosure of Dr. Moliver. Ms. LaSala knowingly made the strategic decision to rely on one Defendant to implicate another. That that decision apparently backfired, requiring her to retain experts after the fact, was predicta-ble.[1] Allowing her to offer expert testimony from untimely-disclosed experts would also prejudice defendants, who have been preparing their defense under the timeline set in the scheduling order. Yet the weight of the factors caution against disallowing testimony from Dr. Moliver. Any prejudice is fairly minimal because he was disclosed within two months of the relevant deadlines. These deadlines also fell during the initial disruptions of the COVID-19 pandemic and its spread in the United States. Any prejudice to Defendants can be cured, and Defendants themselves have sought their own extension to the discovery cut-off. Ultimately, our legal system strongly prefers to decide cases on their merits. See, e.g., Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (noting that “no one, we hold, should count on more than three chances to make good a discovery obligation”). The Court will allow Plaintiff to designate Dr. Moliver as an expert on the standard of care as to the medical malpractice claims against Dr. Millard. B. Ms. Eiselein Ms. LaSala also seeks to offer testimony from Ms. Eiselein, a lawyer who would opine that Dr. Baker and Dr. Millard violated the Health Insurance Portability and Accountability Act (HIPAA). In her supplemental expert disclosure, Ms. LaSala disclosed that Ms. Eiselein will opine on “the scope and application of HIPAA” on the Defendants’ communications and their “compliance” with HIPAA. (Doc. 50-7.) *4 The Court will not, however, allow this untimely disclosure. As discussed in detail below in Section II(B), unlike her medical-malpractice claims, Ms. LaSala never filed a required certificate of review as to the breach-of-fiduciary-duty claims which require expert testimony under Colorado law; Ms. LaSala's untimely expert testimony does not establish the relevant standard of care; and there are serious questions about the admissibility of the proffered testimony. For these reasons, Ms. LaSala's untimely disclosure of Ms. Eiselein is disallowed. C. Deposition of Plaintiff Defendants also seek an extension of the discovery deadline to depose Ms. LaSala. (Doc. 84.) Ms. LaSala did not really oppose this motion and instead has referred back to her own motions to amend the scheduling order. (Doc. 86.) Because the motion is essentially unopposed, and for good cause shown, the Court will re-open discovery to allow Defendants to depose Plaintiff as discussed further in the conclusion of this order. II. Dr. Millard's and Dr. Baker's Motion to Dismiss and Dr. Baker's Motion for Summary Judgment (ECF Nos. 71 and 92) Dr. Millard and Dr. Baker also jointly moved to dismiss on procedural grounds, arguing that Ms. LaSala's “certificate of review” was defective. Dr. Baker separately moved for summary judgment, arguing that Ms. LaSala has not presented expert testimony as required for her claims against him. In a professional-negligence suit brought under Colorado law, a plaintiff must file a “certificate of review” stating that his counsel has consulted with a professional in the relevant field, and that, after reviewing the relevant facts, the professional agreed that the plaintiff's claim “does not lack substantial justification.” Colo. Rev. Stat. § 13-20-602. Certificates of review are only required in cases that require expert testimony, which includes most medical malpractice suits and some suits involving alleged breaches of professional duties. See id; Martinez v. Badis, 842 P.2d 245, 251 (Colo. 1992). In federal diversity cases, this state-law requirement is substantive for Erie purposes, so the Court must apply Colorado law on this issue. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004). While the certificate need not identify the consulting professional, the court may later require identification to verify the content of the certificate. Colo. Rev. Stat. § 13-20-602(3)(b). A. Dr. Millard Ms. LaSala did file a certificate of review in this case for the claims against Dr. Millard. (Doc. 14.) But Dr. Millard argues that the certificate is defective primarily because it was later revealed that Dr. Baker was the physician whom Ms. LaSala's counsel consulted for purposes of the certificate before Ms. LaSala later sued Dr. Baker as well. (See Doc. 72 at p. 4.) At his deposition, Dr. Baker suggested that he had not reviewed enough facts to make a determination as to the viability of the claims against Dr. Millard and that he now had doubts that Dr. Millard was responsible for Ms. LaSala's injuries. (See Doc. 72-2 at 243:5–246:6.) The Court is not convinced that Ms. LaSala has complied with the certificate requirements as to Dr. Millard by relying on the purported consultation with Dr. Baker. But that failure alone does not warrant the extreme remedy of dismissal. Granted, failure to file any certificate at all “shall result in the dismissal of the complaint.” Colo. Rev. Stat. § 13-20-602(4). But Ms. LaSala did file a certificate, albeit a potentially defective one. In this scenario, the Court will instead require Ms. LaSala to file a new certificate as to the medical-malpractice claims and identify the consulting professional as well. See Martinez, 842 P.2d at 251–52 (certificate may be filed late for good cause shown); see also Max Int'l, LLC, 638 F.3d at 1321 (cases should be decided on their merits). B. Dr. Baker *5 In contrast to her claims against Dr. Millard, Ms. LaSala never filed a certificate of review as to her breach-of-fiduciary-duty and invasion-of-privacy claims against Dr. Baker. Instead, she argues that those claims do not require expert testimony and therefore no certificate was required. Alternatively, she argues that an untimely expert disclosure satisfies the certificate requirement. i. Breach of Fiduciary Duty “Breach of fiduciary duty claims are in some, but not all, contexts basically negligence claims incorporating particularized and enhanced duty of care concepts often requiring the plaintiff to establish the identical elements that must be established by a plaintiff in negligence actions.” Martinez, 842 P.2d at 251–52. Given that, “some” breach-of-fiduciary-duty claims “may” be subject to the certificate-of-review requirement and require proof by expert testimony. Id. At least in the context of attorney malpractice, only in “clear and palpable” cases may breach-of-fiduciary duty claims be proved without expert testimony. Boi-gegrain v. Gilbert, 784 P.2d 849, 850 (Colo. App. 1989) (finding that claim was not clear and palpable and affirming dismissal based on lack of expert testimony). The breach-of-fiduciary-duty claim against Dr. Baker is not so “clear and palpable” that Ms. LaSala may proceed without a certificate or without expert testimony. For instance, claims that a doctor inadequately informed a patient of the risks of a procedure in violation of consumer protection laws require expert testimony in Colorado. Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo. App. 1995). Legal malpractice claims, which closely mirror the sort of patient privacy claims that Ms. LaSala brings, also almost always require expert testimony. See Boigegrain, 784 P.2d at 850; see also Martinez, 842 P.2d at 252 (noting that alleging a breach of fiduciary duty in the attorney-client context always requires expert testimony unless such breach is admitted by the defendant). Indeed, doctors and lawyers have similar duties of confidentiality that arise out of their professional relationship with clients, and the extent of those duties can be highly context-dependent. Ms. LaSala claims that Dr. Baker's and Dr. Millard's communica-tions—at least at some point—crossed the line and violated Ms. LaSala's privacy and constituted a breach of patient confidentiality. But both doctors were treating physicians, and Ms. LaSala appears to concede that some of the communications were appropriate and done with at least implied permission. These claims therefore are not “clear and palpable” violations and instead likely require expert testimony under Colorado law. The only cases Ms. LaSala points to, while acknowledging this limited “clear and palpable” exception in the abstract, have nevertheless required expert testimony. Boigegrain, 784 P.2d at 850 (requiring expert testimony and certificate of review in malpractice case); Shelton v. Pen-rose/St. Francis Healthcare Sys., 984 P.2d 623, 628 (Colo. 1999) (excusing failure to file a certificate because adequate expert reports were submitted). While laypeople may have a general understanding that there is a duty of confidentiality owed to patients, most do not understand the intricacies of when that duty arises and the scope of that duty, particularly when two treating physicians are discussing a joint patient's medical history. *6 Ms. LaSala's alternative argument for avoiding the expert-testimony requirement—namely, that some derivative “special relationship” between her and Dr. Baker gives rise to her privacy and fiduciary-duty claim—is unavailing. Any such relationship arose out of the context of Dr. Baker's care as her physician and therefore would be compared to similar physician-patient relationships. See Crystal Homes, Inc. v. Ra-detsky, 895 P.2d 1179, 1182 (Colo. App. 1995) (finding that “the nature of any resulting special relationship and/or attendant duties arising” from an attorney-client relationship “would be measured against standards applicable to attorneys”). Because such a theory still requires proof of the relevant standard of care for Dr. Baker as a treating physician, Ms. LaSala would still need to offer expert testimony for her claim. Because this claim requires expert testimony, and because Ms. LaSala failed to file any certificate of review, the Court will dismiss her claim. Colo. Rev. Stat. § 13-20-602(4) (“The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.”); see also Redden v. SCI Colorado Funeral Servs., Inc., 38 P.3d 75, 83 (Colo. 2001), as modified on denial of reh'g (Jan. 14, 2002) (upholding dismissal of claim based on defective certificate of review). And although Ms. LaSala has offered untimely expert testimony on this claim, allowing expert reports as substitutes for the certificate is “improper” under Colorado law. Shelton, 984 P.2d at 624 (nevertheless allowing such a substitution to avoid vacating a jury verdict because the expert reports provided the same information that would be required in the certificate). Ms. LaSala counters that her untimely expert testimony from Ms. Eiselein absolves her of this certificate requirement. But even if the Court were to allow this as a substitute for a certificate, one question remains: what sort of expert testimony is required? In this case, like in an attorney malpractice case, Ms. LaSala must offer expert testimony on what the relevant standard of care is and whether Dr. Baker's conduct fell below that standard. That is not what Ms. Eiselein is offering, however. Instead, her testimony is solely directed toward whether Dr. Baker and Dr. Millard violated HIPAA and regulations promulgated pursuant to HIPAA. Her opinions include: “The Text Messages Between Dr. Millard and Dr. Baker Contain PHI and are Governed by HIPAA”; “Certain of Plaintiff's PHI Shared Between Dr. Millard and Dr. Baker was Not for Treatment Purposes [as defined in HIPAA or related regulations]”; and “Drs. Millard's and Baker's Text Message Exchanges Breached the Security Rule [as defined in HIPAA regulations.]” (Doc. 61–2.) Ms. LaSala confirms in her briefing that Ms. Eiselein's testimony will amount to answering the following legal question: “did the Defendants violate any of HIPAA's applicable rules?” (Doc. 97 at p. 25–26.) There are two main problems with this offered testimony. First, it appears to comprise inadmissible legal opinions. “In no instance can a witness be permitted to define the law of the case.” Specht v. Jensen, 853 F.2d 805, 810 (10th Cir. 1988). But that is what Ms. Eiselein seeks to do: define the parameters of a federal statute, HIPAA, for the jury and opine that defendants violated that statute. This conclusion finds support in Luciano v. East Cent. Bd. Of Co-op. Educational Services, 885 F. Supp. 2d 1063, 1067–68 (D. Colo. 2012), where the court, applying Specht, excluded expert opinions on the Americans with Disabilities Act's requirements and whether a defendant violated the ADA. Because opinions that “amount to instruction on the law” and that defendants “violated the law” are inadmissible legal conclusions, Id., Ms. Eiselein's testimony about what HIPAA requires and whether Defendants violated HIPAA are inadmissible. *7 Perhaps more fundamentally, Ms. Eiselein's expert report is only tangentially relevant to Ms. LaSala's state-law fiduciary-duty claim. HIPAA did not create a private right of action, and Ms. LaSala cites no authority holding that a HIPAA violation, ipso facto, constitutes a breach of fiduciary duty under Colorado law. What is needed here, and what would render this testimony admissible, is an opinion on whether Dr. Baker met the accepted standard of care applied to physicians when dealing with patient privacy. See Luciano, 885 F. Supp. 2d at 1068 (noting that opinions as to whether a defendant failed to ameliorate barriers to disabled individuals, without reference to what the law requires or whether a legal violation occurred, would be admissible). While HIPAA violations may inform whether a breach occurred, that ultimate determination is reserved for the factfinder with instruction on the law from the Court, not an expert witness. Specht, 853 F.3d at 807 (“There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge” (internal citation and quotation marks omitted)). As a matter of Colorado law, Ms. Eiselein must offer expert testimony on the standard of care for this claim. Because she has not, her untimely report cannot save this claim. To sum up, expert testimony is required to prove Ms. LaSala's breach-of-fiduciary-duty claim against Dr. Baker. Because Ms. LaSala failed to file a certificate of review as to that claim, it must be dismissed. Nor can Ms. LaSala's expert testimony, which was submitted not only past the deadline for filing a certificate but also past the deadline for identifying expert witnesses, save her claim. Ms. LaSala's fiduciary-duty claim therefore will be dismissed. ii. Invasion of Privacy Ms. LaSala's invasion-of-privacy claim also fails to survive summary judgment, for slightly different reasons. Under Colorado law, to allege a privacy-related tort in the nature of “unreasonable publicity given to another's private life,” one must establish five elements: (1) the facts must be private in nature; (2) the disclosure must be made to the public; (3) the disclosure must be highly offensive to a reasonable purpose; (4) the facts are of no legitimate concern to the public; and (5) the defendant acted with reckless disregard. Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo. 1997). As to the second element, the disclosure must be made to “a large number” of persons. Id. at 378. Ms. LaSala appears to argue that, because Dr. Baker conveyed confidential information to Dr. Millard who, in turn, conveyed that information to his attorneys and insurance company, this element is satisfied. Not so. Ms. LaSala cites no authority holding that disclosure to a single other person, particularly in the context of sharing medical information between physicians, constitutes disclosure to the public, even if that information was passed along to attorneys in the context of a lawsuit or pre-suit discussions. Ms. LaSala cites Borquez, but that court made no indication that disclosure to a single person, particularly in the medical context, satisfied this element. Id. The two claims against Dr. Baker therefore will be dismissed. And because the civil-conspiracy claim is predicated on these claims, as discussed further below, it too will be dismissed in its entirety. C. Philippe A. Capraro, M.D., P.C. Finally, Ms. LaSala's claims against Dr. Baker's associated corporation, Philippe A. Capraro, M.D., P.C., fail as a matter of law. First, there are no longer live claims against Dr. Baker, so Ms. LaSala cannot predicate any corporate liability on the underlying claims against Dr. Baker. But even if there were live claims, they would fail because medical corporations and hospitals generally cannot be liable for the negligence of an employee-doctor under a respondeat-superior theory of liability. Est. of Harper ex rel. Al-Hamim v. Denver Health & Hosp. Auth., 140 P.3d 273, 278 (Colo. App. 2006). Ms. LaSala asserts that her breach-of-fidu-ciary duty and invasion-of-privacy claims fall outside the scope of this doctrine, but has cited no authority for such a departure. She argues that they are not “negligence” claims, but “breach of fiduciary duty claims are in some, but not all, contexts basically negligence claims.” Martinez, 842 P.2d at 251–52. This is such a context, and the claims are therefore dismissed. III. Motion for Sanctions and Spoliation (ECF Nos. 95 and 105) *8 After Defendants filed their respective summary-judgment motions and joint motion to dismiss, Ms. LaSala moved for sanctions and disqualification of Dr. Millard's counsel, arguing that Defendants withheld various discoverable materials. Ms. LaSala argues that Dr. Millard never produced a phone call between him and Dr. Baker that Dr. Millard allegedly recorded. She also notes that she had access to emails sent to her, pre-litigation, from Dr. Millard's office that Dr. Millard never produced during discovery. And she argues that Dr. Baker failed to disclose certain text messages between Defendants. Because of all this, Ms. LaSala seeks sanctions that include denial of Defendants’ dispositive motions, a special jury instruction at trial, attorneys’ fees, and disqualification of Dr. Millard's counsel. A. Spoliation Sanctions “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Burlington Northern and Santa Fe Ry. Co. V. Grant, 505 F.3d 1013, 1032 (10th Cir.2007) (internal citation and quotation marks omitted). “The movant has the burden of proving, by a preponderance of the evidence, that the opposing party failed to preserve evidence or destroyed it.” Ernest v. Lockheed Martin Corp., 2008 WL 2945608, at *1 (D. Colo. July 28, 2008). Ms. LaSala's claims of an elaborate cover-up that involves defense counsel are overblown. Her best evidence of withheld discovery is that Dr. Millard failed to produce an incriminating text message sent between Dr. Millard and Dr. Baker. That text message has now been produced, and Dr. Millard's counsel contend it was mistakenly omitted from a prior production. To alleviate any potential prejudice related to the failure to produce that document, the Court has reviewed and considered the relevant text message in deciding Defendants’ dispositive motions. As to Ms. LaSala's remaining spoliation arguments, she has not met her burden of showing that evidence was destroyed and that she was prejudiced by such destruction. Ms. LaSala first argues that Dr. Millard destroyed a recording of a phone call between him and Dr. Baker. Dr. Miller did claim to record that call in a written memorandum summarizing the call that has been produced in discovery. But at his deposition, he testified that he made no such recording, and Ms. LaSala has the written memorandum summarizing the call. This is not sufficient evidence to find that such a recording was destroyed or that she has been prejudiced by any alleged destruction because she possesses the memorandum and the existence of any such recording remains uncertain. Ms. LaSala next argues that Dr. Baker deleted text messages between him and Dr. Millard. The parties dispute whether Dr. Baker was obligated to preserve these text messages. But either way, Ms. LaSala has not shown prejudice or that the alleged text messages are “lost.” Fed. R. Civ. P. 37(e) (allowing for sanctions against a party only if e-discovery is “lost because a party failed to take reasonable steps to preserve it”). It appears that Dr. Millard produced all of the relevant text messages, so they were not “lost” for purposes of spoliation. Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 107 (E.D. Va. 2018) (“Information is lost for purposes of Rule 37(e) only if it is irretrievable from another source, including other custodians.”) Ms. LaSala's remaining arguments that there is missing evidence are even more highly speculative, and the Court will not grant a spoliation sanction based on such speculation. The motion is therefore denied. B. Motion to Disqualify Counsel Nor has Ms. LaSala met her burden to disqualify Dr. Millard's counsel. “Motions to disqualify are governed by two sources of authority. First, attorneys are bound by the local rules of the court in which they appear. Federal district courts usually adopt the Rules of Professional Conduct of the states where they are situated. Second, because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law.” Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994). Under Colorado law, a lawyer shall not advocate at trial if they are likely to be a necessary witness. Colorado Rule of Professional Conduct 3.7. But because disqualification “severely impinges” on a litigant's right to representation by the counsel of his choice, it should be invoked sparingly, particularly where the movant has not demonstrated the violation of an ethical rule. Carbajal v. Am. Fam. Ins. Co., No. 06CV00608, 2006 WL 2988955, at *2 (D. Colo. Oct. 18, 2006). *9 Ms. LaSala argues that, because Dr. Millard's attorneys failed to timely produce one text message that has since been produced, they must be disqualified as necessary witnesses involved in a cover-up. Ms. LaSala asserts that the failure to produce was a tactical decision by defense counsel but cites no concrete evidence for such an allegation. As a remedy, Ms. LaSala proposes disqualification because she argues that she must now depose, and possibly examine at trial, defense counsel to explore the implications of this alleged cover-up. But trial has not been set in this matter, and any motion to disqualify counsel as necessary trial witnesses is not yet ripe. Wisehart v. Wisehart, No. 18CV00021, 2018 WL 11182736, at *4 (D. Colo. Oct. 16, 2018). Nor has Ms. LaSala shown how what appears to be a relatively routine discovery dispute warrants the extraordinary remedy of disqualification of opposing trial counsel. The Court will not authorize a fishing expedition to depose opposing trial counsel and will not disqualify them. IV. Dr. Millard's Motion for Summary Judgment (ECF No. 52) Dr. Millard asserts two arguments for summary judgment. First, Dr. Millard argues that Ms. LaSala's medical-malpractice claims against him must be supported by expert testimony, and Ms. LaSala had not identified any retained experts at the time of filing that summary judgment motion (aside from Defendants, as discussed above). Second, Dr. Millard argues that Ms. LaSala's “civil conspiracy claim” must be dismissed because it is premised on a HIPAA violation, yet HIPAA provides no private right to action. As to the medical-malpractice claims, Dr. Millard's argument fails because the Court will allow Ms. LaSala to present testimony from her newly retained expert physician, as discussed above. While the Court need not and does not decide here whether summary judgment may be appropriate in light of this new expert testimony, Dr. Millard's motion was premised solely on the fact that Ms. LaSala had presented no expert evidence. Given that, Dr. Millard's request as to the malpractice claims is denied. The civil-conspiracy claim, however, is a different matter. “To establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) an unlawful overt act; and (5) damages as to the proximate result.” Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995). “Additionally, the purpose of the conspiracy must involve an unlawful act or unlawful means. A party may not be held liable for doing in a proper manner that which it had a lawful right to do.” Id. To establish a civil conspiracy claim in Colorado, “the underlying acts [must] be unlawful and create an independent cause of action.” Double Oak Const., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140, 146 (Colo. App. 2003) (emphasis added). Civil conspiracy is a derivative action, and Ms. LaSala has identified no predicate cause of action to support a civil conspiracy claim against Dr. Millard. Instead, Ms. LaSala argues that Dr. Baker's breach of his fiduciary duty and both defendants’ violations of HIPAA constitute predicate unlawful acts. But Ms. LaSala concedes that HIPAA does not create a private right of action, so a HIPAA violation alone cannot qualify as a predicate act under Colorado law. Id. (the predicate act must “create an independent cause of action”). Nor can Dr. Baker's alleged breach of fiduciary duty or invasion of privacy, standing alone, serve as a predicate act for Dr. Millard's liability. Elway, 908 P.2d at 106. Ms. LaSala's claim that the conspiracy's objective was to minimize Dr. Millard's legal liability also is problematic: “ ‘To get out of a lawsuit’ is not a valid independent action to which a conspiracy claim may attach.” Hanley v. Univ. of Kansas Hosp., No. 15-CV-2227-DDC-TJJ, 2015 WL 4478636, at *2 (D. Kan. July 22, 2015) (applying Kansas's civil conspiracy law, which has identical elements as Colorado law). In any event, because Ms. LaSala has alleged no wrongful act by Dr. Millard that creates an independent cause of action, and because the claims against Dr. Baker are dismissed as discussed above, her civil conspiracy claim fails and will be dismissed. CONCLUSION *10 Dr. Millard's Renewed Motion for Summary Judgment (Doc. 52) is DENIED. Defendants’ Joint Motion to Dismiss (Doc. 71) is GRANTED IN PART and DENIED IN PART, and Dr. Baker's Motion for Summary Judgment (Doc. 92) is GRANTED as follows. Ms. LaSala's Claim Five for civil conspiracy is DISMISSED as to all Defendants. Ms. LaSala's Claims Three and Four are DISMISSED in their entirety. Dr. Baker and Philippe A. Capraro, M.D., P.C. are therefore DISMISSED from this case. Claims One and Two against Dr. Millard and John A. Millard, M.D. P.C. may proceed. Ms. LaSala's motion for sanctions (Doc. 95) and motion to disqualify Dr. Millard's counsel (Doc. 105) are both DENIED. Ms. LaSala's Motion to Amend the Scheduling Order (Doc. 54) is GRANTED IN PART and DENIED IN PART, and Defendants’ motion to strike Ms. LaSala's supplemental disclosures (Doc. 57) is GRANTED IN PART and DENIED IN PART as follows. Ms. LaSala's otherwise-untimely disclosure of Dr. Moliver and his expert report is excused. But Ms. LaSala's late disclosure of Ms. Eiselein is not excused, and Ms. LaSala may not present her proposed testimony in this case. Defendants’ motion to amend the scheduling order to allow a deposition of Ms. LaSala (Doc. 84) is GRANTED to the extent that deposition has not already occurred. It is FURTHER ORDERED that: On or before April 30, 2021, Ms. LaSala shall file a certificate of review as to the remaining claims that strictly conforms to the requirements of Colorado Revised Statutes § 13-20-602. That certificate also shall identify the consulting physician and shall be attested to, under penalty of perjury, by that consulting physician. It is FURTHER ORDERED that: On or before April 30, 2021, the remaining parties (Plaintiff, Dr. Millard, and John A. Millard, M.D., P.C.) shall file a joint status report giving time estimates for completing the following tasks, to the extent they have not already occurred: • The remaining Defendants’ deposition of Ms. LaSala; and • Expert depositions for the remaining defendants’ disclosed experts and for Dr. Moliver, Ms. LaSala's sole retained expert. Once that status report is filed, the Court will briefly re-open fact and expert discovery as necessary. If appropriate, the Court is inclined to allow the remaining defendants to file a renewed dispositive motion. The Court is also inclined to allow the remaining defendants to depose Dr. Moliver at Ms. LaSala's expense (not including attorneys’ fees) due to the untimely disclosure of that expert. Footnotes [1] While Ms. LaSala's original approach of relying on defendants to submit expert testimony against themselves is unusual, the Court has found no rule or caselaw forbidding that approach. Indeed, some courts, particularly state courts, have allowed plaintiffs to prove their malpractice claims through examination of an adverse, defendant-physician witness. See, e.g., Libby v. Conway, 13 Cal. Rptr. 830, 833 (Cal. Ct. App. 1961) (noting that California law does not forbid requiring a defendant to be examined on the standard of care in a malpractice action); see also McDermott v. Manhattan Eye, Ear & Throat Hosp., 203 N.E.2d 469, 474 (N.Y. 1964) (allowing plaintiff to prove malpractice through cross-examination of defendant doctor). The Court does not necessarily agree that such a maneuver would be appropriate here, however, under Colorado law and the Federal Rules of Evidence. And given Dr. Baker's deposition testimony, the Court is not convinced that Ms. LaSala could prove her affirmative case using only the defendants as “experts” at trial.