8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 SHANE BEARD, et al., Case No. 1:21-cv-00841-ADA-SAB
12 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF 13 v. DOCUMENTS
14 COUNTY OF STANISLAUS, et al., ORDER VACATING FEBRUARY 15, 2023 HEARING 15 Defendants. (ECF Nos. 59, 61, 62, 63) 16
17 18 Currently before the Court is Plaintiffs Shane Beard, Hilda Perez, and N.P.’s (collectively, 19 “Plaintiffs”) motion to compel Defendant County of Stanislaus (“Defendant”)1 to produce 20 documents in response to Plaintiff Beard’s requests for production, set three (“RPD3”). (ECF No. 21 59.) Defendant filed an opposition and Plaintiffs filed a unilateral statement of discovery dispute 22 on February 1, 2023. (ECF Nos. 61, 62.) The parties filed a joint statement of discovery 23 disagreement on February 2, 2023. (ECF No. 63.) The Court finds this matter suitable for decision 24 without oral argument and the parties will not be required to appear on February 15, 2023. See 25 Local Rule 230(g). For the reasons explained herein, Plaintiffs’ motion shall be denied, without 26 prejudice to refiling, if necessary, after the parties have appropriately met and conferred. The
27 1 The Court notes multiple defendants have been named in this action. However, the instant motion to compel is directed only at Defendant County of Stanislaus, which shall be referred to herein as “Defendant” for purposes of this 1 parties’ cross-requests for sanctions shall also be denied. 2 I. 3 BACKGROUND 4 A. Factual Background and Pleading Allegations 5 Plaintiff N.P. is the son of Plaintiffs Beard and Perez. Non-party minors A.S., C.P., V.P., 6 and D.P. are the children of Perez and other partners. At all relevant times, Beard and Perez lived 7 in separate residences, and N.P. lived primarily with Perez. 8 On July 12, 2019, a social services referral was generated. The reporting party alleged that 9 A.S. reported he was touched inappropriately in the shower by V.P., and that V.P. and C.P. hit him 10 on the head but Perez did nothing about it. An investigation ensued, with the end result that on 11 July 19, 2019, N.P. was removed from Beard’s custody and on July 24, 2019, the juvenile court 12 determined at a detention hearing that N.P. needed continued detention. An amended juvenile 13 dependency petition was filed on August 16, 2019. The juvenile case eventually concluded on 14 April 15, 2020. 15 Plaintiffs allege the individual Defendant social workers fabricated information, generally 16 misrepresented the situation, and withheld exculpatory information during their investigation and 17 in their reports and warrant application, notably that N.P. was not involved in the aforementioned 18 situation, was no longer living with V.P. and C.P., and was not in any danger and therefore should 19 not have been removed from Beard’s custody. Plaintiffs further allege Defendant County of 20 Stanislaus promulgates unconstitutional policies and fails to properly train its social workers. 21 B. Procedural Background 22 Plaintiffs initiated this action against Defendant County of Stanislaus and Defendant social 23 workers Eric Anderson, April Cobbs, Mariela Gomez, David Granados, Stephanie Herrera, Shari 24 Johnson, Shynelle Jones, and Gloria Solorio on May 24, 2021. (ECF No. 1.) The complaint asserts 25 federal and state claims against Defendants for violations of the Fourth and Fourteenth 26 Amendments, Monell liability, intentional infliction of emotional distress, false imprisonment, and 27 violations of the Bane Act. A scheduling order issued on October 27, 2021 (ECF No. 21), which 1 2022 (ECF No. 52). A protective order was entered on March 31, 2022. (ECF No. 23.) 2 Notably, the Court modified the schedule on November 16, 2022 in response to Plaintiffs’ 3 unopposed motion to reopen discovery and extend the non-expert discovery deadline to January 4 16, 2023, “for the limited purpose” of permitting the parties to resolve two discovery issues: (1) to 5 allow the parties to litigate the issue of whether the County disobeyed a discovery order in failing 6 to produce C.A.I.R.E. Center documents; and (2) to litigate the issue of County’s refusal to produce 7 unredacted documents it had previously agreed to produce. (ECF Nos. 49, 52.) Plaintiffs filed 8 this motion to reopen discovery on October 31, 2022. (ECF No. 49.) As relevant here, the 9 unredacted documents described in Plaintiffs’ motion to reopen discovery are the same contested 10 documents that are the subject of the instant motion to compel. (See id. at 7–8.) The Court did 11 not grant leave at that time—nor did the parties seek any—to conduct any other type of non-expert 12 discovery. Accordingly, with respect to all other fact-discovery matters, the cutoff date remained 13 set as August 31, 2022. (See ECF No. 39.) 14 Of particular importance to the instant matter, the Court notes the scheduling order 15 expressly addresses the discovery plan and cutoff dates: 16 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by which all discovery must be completed. Absent 17 good cause, discovery motions will not be heard after the discovery deadlines. Moreover, absent good cause, the Court will only grant 18 relief on a discovery motion if the relief requested requires the parties to act before the expiration of the relevant discovery 19 deadline. In other words, discovery requests and deposition notices must be served sufficiently in advance of the discovery deadlines to 20 permit time for a response, time to meet and confer, time to prepare, file and hear a motion to compel and time to obtain relief on a 21 motion to compel. Counsel are expected to take these contingencies into account when proposing discovery deadlines. Compliance 22 with these discovery cutoffs requires motions to compel be filed and heard sufficiently in advance of the discovery cutoff so that 23 the Court may grant effective relief within the allotted discovery time. A party’s failure to have a discovery dispute heard 24 sufficiently in advance of the discovery cutoff may result in denial of the motion as untimely. 25 (ECF No. 21 at 2–3 (emphases added and in original).) 26 Thus, pursuant to the operative, modified scheduling order, limited-purpose discovery 27 closed January 16, 2023; the initial and supplemental expert disclosure deadlines have passed; 1 expert discovery closed on December 31, 2022; the dispositive motion deadline expired on 2 February 13, 2023; and a pretrial conference is currently set for June 12, 2023, though it remains 3 set before District Judge Drozd. (See ECF Nos. 21, 39, 46, 52.) 4 As noted, Plaintiffs filed the instant motion to compel on January 12, 2023. (ECF No. 59.) 5 Defendants opposed the motion and Plaintiffs filed a unilateral statement of discovery dispute on 6 February 1, 2023 (ECF Nos. 61, 62); the parties filed a joint statement of discovery dispute on 7 February 2, 2023 (ECF No. 63); and the hearing on Plaintiffs’ motion is set to be heard on February 8 15, 2023—all dates occurring after the January 16 discovery cutoff. 9 C. Discovery Dispute and Meet and Confer Efforts 10 The instant discovery issue pertains to certain contested redactions in Defendant’s 11 production of Emergency Response Referral Information (“ERRI”) documents. As described by 12 Plaintiffs, these are forms filled out by social workers at a “hot line” when receiving referrals or 13 reports of child abuse from child abuse reporters. Certain initials are included in each entry of 14 reported abuse, which Plaintiffs contend are not the initials of the reporting party, but abbreviations 15 to indicate what kind of reporter the social worker was interacting with: a “reporting party” (“RP”), 16 a “mandated reporting party” (“MRP”), or a “mandated reporter” (“MR”). (ECF No. 59 at 3; Decl. 17 of Robert R. Powell in Support of Pls.’ Mot. to Compel (“Powell Decl.”) ¶¶ 3–4, 7–8, ECF No. 18 59-1; Dep. of Def. April Cobbs (“Cobbs Dep.”), Ex. A, ECF No. 59-1 at 7–12.) In Defendant’s 19 production, these abbreviations are redacted. Plaintiffs move to compel production of these 20 documents in which the abbreviations are not redacted. 21 On August 23, 2022, Plaintiffs’ Counsel emailed Defense Counsel to point out the at-issue 22 redactions by attaching to the email the first page of numerous ERRIs which included the 23 redactions. (Powell Decl. ¶ 5.) Plaintiffs’ Counsel described this issue as “an issue he brought to 24 Defense counsel’s attention in the deposition of Stanislaus County Social Worker April Cobbs,”2 25 and asserted the entries of “RP” and “MRP” are unnecessarily redacted in the referrals. (Decl. of 26 Bradley J. Swingle in supp. of opp’n to mot. to compel (“Swingle Decl.”) ¶ 3; ECF No. 61-1 at 1– 27 2 The Court notes the certified transcript of the deposition of Ms. Cobbs indicates the deposition was taken on August 1 5.) Defense Counsel proffers he “took this to mean that the Plaintiffs want the identities of these 2 individuals.” (ECF No. 61 at 2; Swingle Decl. ¶ 3.) 3 On August 31, 2022, Plaintiffs’ Counsel emailed Defense Counsel a second time to request 4 unredacted documents. (Powell Decl. ¶ 6; Ex. B, ECF No. 59-1 at 15–16.) Again, the Court notes 5 that fact-discovery closed on August 31, 2022, pursuant to the scheduling order in effect at that 6 time, and was not reopened until the November 16, 2022 modification order. (See ECF Nos. 39, 7 52.) Meanwhile, however, on September 6, 2022, Defense Counsel replied to Plaintiffs’ Counsel, 8 agreeing to produce to Plaintiffs unredacted first pages of specific ERRIs. (Powell Decl. ¶ 9; Ex. 9 B, ECF No. 59-1 at 15.) At this time, Defense Counsel proffers he made an inquiry with 10 Defendants to provide Plaintiffs’ counsel the unredacted RP and MRP portions, but still 11 understood this to mean Plaintiffs sought the identities of the reporting persons. (Swingle Decl. ¶ 12 5.) 13 Plaintiffs’ Counsel sent a follow up email on September 16, 2022. (Powell Decl. ¶ 10; Ex. 14 B, ECF No. 59-1 at 15.) On September 23, 2022, Defense Counsel replied that he was still waiting 15 for the documents as the person who usually handles the matter had recently moved and it was 16 taking longer than normal, but the unredacted documents were forthcoming and would be provided 17 “as soon as they are received.” (Powell Decl. ¶ 10; Ex. B, ECF No. 59-1 at 14; Swingle Decl. ¶ 18 6.) Thereafter, however, Defense Counsel met with various County employees and it was agreed 19 that Plaintiffs’ request sought disclosure of privileged reporter information in violation of the Penal 20 Code, and that Defendant would not agree to reveal the identities of these individuals. (Swingle 21 Decl. ¶ 7.) 22 On October 17, 2022, Defense Counsel informed Plaintiffs that Defendant would not be 23 producing the unredacted ERRIs, on the basis that disclosure would violate California’s laws 24 against the disclosure of identifying information of mandated reporters, specifically Cal. Pen. Code 25 § 11167(d)(1). (Powell Decl. ¶ 11; Ex. B, ECF No. 59-1 at 14; Swingle Decl. ¶ 8.) Defense 26 Counsel stated the redactions would not be made absent a court order and/or an appropriate 27 protective order, and also indicated Defendant would not oppose a motion by Plaintiffs seeking to 1 discovery to permit the parties to litigate the issue of County’s refusal to produce the unredacted 2 ERRIs, “which the County had already previously agreed to.” (ECF No. 49 at 7–18; Decl. of 3 Robert R. Powell in Support of Pls.’ Mot. to Reopen Disc. (“Powell-2 Decl.”) ¶¶ 16–21, ECF No. 4 49-1 at 1–6.) As noted, Defendants did not oppose this motion (ECF No. 51), and the Court 5 modified the scheduling order to reopen discovery for this limited purpose on November 16, 2022 6 (ECF No. 52). 7 On December 6, 2022, Plaintiffs formally requested the unredacted ERRIs pursuant to 8 Federal Rule of Civil Procedure (“Rule”) 34, with a deadline of January 10, 2023. (Powell Decl. 9 ¶¶ 13–14; Ex. C, ECF No. 59-1 at 17–23.) RPD3 is a single request, which requests Defendants 10 to: 11 Produce ALL “Emergency Response Referral Information” DOCUMENTS regarding any children of Hilda Perez without the 12 initials “MRP” and “RP” redacted. 13 (Ex. C, ECF No. 59-1 at 21.) 14 On January 10, 2023, Defense Counsel sent an email requesting a one-week extension 15 (from January 10, 2023 to January 17, 2023) to respond to the request. (Powell Decl. ¶¶ 15–16; 16 Ex. D, ECF No. 59-1 at 25.) Plaintiffs’ Counsel proffers he did not immediately receive this 17 request because he was engaged in a pre-settlement conference call for another matter at that time, 18 and therefore did not respond to the request for an extension. (Powell Decl. ¶ 15.) Later that same 19 day, Defendant produced a response that contained only boilerplate “general” objections and the 20 following specific response and objections: 21 This request is objected to on the grounds that it improperly calls for the disclosure of mandated reporter information in violation of 22 [Cal.] Penal Code 11167(d)(1) and possibly other code sections, which provides that the identity of all persons who report issues of 23 suspected child abuse or neglect shall remain confidential. Accordingly, responding party is unable to comply with this request. 24 25 (Powell Decl. ¶¶ 17–18; Ex. E, ECF No. 59-1 at 26–29; Swingle Decl. ¶ 12; Ex. 8, ECF No. 61-1 26 at 27–31.) 27 On January 11, 2023, 9:15 a.m., Plaintiffs’ Counsel emailed Defense Counsel to “invoke 1 In this email, Plaintiffs’ Counsel explains Plaintiffs do not seek the actual identity of any of the 2 redacted individuals, but only to have the initials “MRP” and “RP” unredacted from the 3 documents. (Id.) Plaintiffs’ Counsel next requests Defense Counsel to agree to meet and confer 4 “now” and indicate Defendant’s willingness to participate in the informal discovery process, even 5 though “[Defense Counsel has] made clear [Defendants] refuse, so while we must meet and confer, 6 it is in effect a mere formality given [Defendants’] position and now this specious objection. (Id.) 7 However, Defense Counsel proffers that this is the first time that Plaintiffs tried to clarify what 8 was being sought in RPD3. (ECF No. 61 at 4; Swingle Decl. ¶ 11.) 9 On January 11, 2023, 9:32 a.m., Defense Counsel emailed Plaintiffs’ Counsel to note 10 counsel and client’s belief that Plaintiffs were seeking the identities of the MRPs and/or RPs, which 11 was confidential information. (Ex. F, ECF No. 59-1 at 32.) Accordingly, Defendant requested 12 Plaintiffs submit an amended RPD3, which clarified what the request was seeking, and indicated 13 that Defendant would produce all responsive non-privileged documents in its possession. (Id.) 14 On January 11, 2023, 9:39 a.m., Plaintiffs’ Counsel informed Defense Counsel that if a 15 reply was not forthcoming within the next 20 minutes, Plaintiffs would file a discovery dispute 16 statement or “a good old motion to compel and of course, request sanctions.”3 (ECF No. 59-1 at 17 32.) 18 Five minutes later, Defense Counsel responded, reiterating that he was unsure of what 19 Plaintiffs were seeking, but believed the request, as he understood it, to seek the identities of the 20 MRPs and/or RPs, which was confidential information. (Powell Decl. ¶ 20; Ex. F, ECF No. 59-1 21 at 31.) Defense Counsel requested Plaintiffs send an amended RPD3 to clarify what they were 22 seeking and agreed to produce all responsive documents, if the amended request clearly sought 23 non-privileged, discoverable documents. (Ex. F, ECF No. 59-1 at 31.) Defense Counsel’s email 24 also indicates Plaintiffs’ Counsel sent a prior email via a different thread, stating Plaintiffs would 25 issue a new request for production, but that the amended RPD3 had not yet been received. (Id.) 26 Finally, Defense Counsel informed Plaintiffs’ counsel that, if Plaintiffs filed a motion to compel
27 3 It also appears from the email exchange that the parties disputed whether they were required to meet and confer by telephone rather than via email. (See ECF No. 59-1 at 32.) In the 9:39 a.m. email, Plaintiffs’ Counsel indicates that 1 despite their agreement to first serve an amended request for production, Defendant would likewise 2 seek sanctions. (Id.) 3 Based on Defense Counsel’s final January 11 email response, Plaintiffs proffer they 4 believed that further attempts to meet and confer would be fruitless. (Powell Decl. ¶ 22; ECF No. 5 59 at 5–6.) Accordingly, on January 12, 2023, Plaintiffs filed the instant motion to compel. (ECF 6 No. 59 at 6.) 7 II. 8 LEGAL STANDARD 9 Rule 26 of the Federal Rules of Civil Procedure allows a party to obtain discovery 10 “regarding any nonprivileged matter that is relevant to any party’s claim or defense and 11 proportional to the needs of the case, considering the importance of the issues at stake in the action, 12 the amount in controversy, the parties’ relative access to relevant information, the parties’ 13 resources, the importance of the discovery in resolving the issues, and whether the burden or 14 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 15 “Information within this scope of discovery need not be admissible in evidence to be 16 discoverable.” Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or less 17 probable than it would be without the evidence; and (b) the fact is of consequence in determining 18 the action.” Fed. R. Evid. 401. 19 As relevant here, Rule 34 of the Federal Rules of Civil Procedure provides that 20 A party may serve on any other party a request within the scope of Rule 26(b): 21 (1) to produce and permit the requesting party or its representative 22 to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control: 23 (A) any designated documents or electronically stored 24 information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data 25 compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the 26 responding party into a reasonably usable form. . . . 27 Fed. R. Civ. P. 34(a). “The party to whom the request is directed must respond in writing within 1 objection to a requested form for producing electronically stored information. If the responding 2 party objects to a requested form—or if no form was specified in the request—the party must state 3 the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(2)(D). 4 Motions to compel are governed by Rule 37. A party may move for an order compelling 5 production where the opposing party fails to produce documents as requested under Rule 34. Fed. 6 R. Civ. P. 37(a)(3(B)(iv). Rule 37 provides in pertinent part: 7 (a) Motion for an Order Compelling Disclosure or Discovery. 8 (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. 9 The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing 10 to make disclosure or discovery in an effort to obtain it without court action. 11 12 Fed. R. Civ. P. 37 (emphasis in original). Rule 37 states that “an evasive or incomplete disclosure, 13 answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 14 37(a)(4). The party opposing the discovery bears the burden of resisting disclosure. Bryant v. 15 Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012). 16 A party “who has responded to an interrogatory, request for production, or request for 17 admission—must supplement or correct its disclosure or response . . . as ordered by the court.” 18 Fed. R. Civ. P. 26(e)(1)(B). If a party fails to do so, “the party is not allowed to use that information 19 or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 20 substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “In addition to or instead of this 21 sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment 22 of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the 23 jury of the party’s failure; and (C) may impose other appropriate sanctions, including any of the 24 orders listed in Rule 37(b)(2)(A)(i)–(vi).” Fed. R. Civ. P. 37(c)(1)(A)–(C). 25 III. 26 ANALYSIS 27 A. Parties’ Arguments 1 unredacted ERRIs to show that allegations of abuse against Plaintiff Hilda Perez’s children were 2 not being generated by Hilda, but by individuals such as mandated reporters and other “reporting 3 parties.” (ECF No. 59 at 7.) Plaintiffs proffer the requested information is relevant to the instant 4 case because Defendant contends, in part, that the Plaintiff children were wrongfully removed 5 because Hilda was manufacturing abuse allegations against fathers of her other children, and that 6 Hilda was responsible for over 50 child abuse referrals. (Id.; see Powell Decl. ¶ 25.) Meanwhile, 7 Plaintiffs contend that over 30 of the alleged 53 reports were from “mandated reporters” and 8 sometimes “reporting parties,” rather than Hilda. (ECF No. 59 at 7.) Plaintiffs seek to establish, 9 as part of their claims, that the County’s Community Services Agency had no basis to allege that 10 Hilda was creating specious reports, and that the County had knowledge of who was offering these 11 reports. (ECF No. 59 at 7.) As to Defendant’s objections to production based on § 11167(d)(1), 12 Plaintiffs argue § 11167(d)(1) states a mandated reporter’s identity is confidential; whether a 13 particular statement or conclusion was uttered by a mandated reporter or reporting party, however, 14 is not confidential. (ECF No. 59 at 8.) Further, Plaintiffs argue there is no way to ascertain the 15 actual identity of the reporting person merely from the information that the reporter was either an 16 MR or an RP. (Id.) 17 In opposition, Defendant first contends the instant motion should be denied because 18 Plaintiffs failed to properly meet and confer prior to filing this motion. (ECF No. 61 at 1, 5–6.) 19 Specifically, Plaintiffs failed to meet and confer via telephone or videoconference, as required 20 under Local Rule 251(b), prior to filing the instant motion to compel. Further, Defendant maintains 21 Plaintiffs agreed to provide an amended RPD3 after Defendant raised concerns about the 22 vagueness of the request; however, instead of serving an amended RPD3 on Defendant, Plaintiffs 23 filed the instant motion to compel. (Id. at 1–2.) On this record, Defendant argues the motion was 24 prematurely filed and should be summarily denied. 25 Substantively, Defendant argues Plaintiff’s RPD3 is vague and Defendant interpreted the 26 request as being something different from what Plaintiffs intended (i.e., that removing the 27 redactions would violate Cal. Pen. Code § 11167(d)(1)). (ECF No. 61 at 1.) Further, Defendant 1 No. 61 at 6.) Nonetheless, Defendant proffers it remains amenable to permitting Plaintiffs to serve 2 an amended request for production which clarifies the request.4 (Id.) 3 B. Analysis 4 Here, it is undisputed that Plaintiffs’ Counsel did not engage in meet and confer 5 communications via telephone or videoconference, but instead elected to attempt to meet and 6 confer via electronic mail only. Plaintiffs contend this is sufficient under the local rules to satisfy 7 the meet and confer requirement. This Court disagrees. Local Rule 251 requires: 8 Counsel for the moving party or prospective moving party shall be responsible for arranging the conference, which shall be held at a 9 time and place and in a matter mutually convenient to counsel. 10 E.D. Cal. L.R. 251(b). As noted in the Local Rules, a “conference” to meet and confer is required. 11 Thus, an exchange of email communications is insufficient to meet the meet and confer 12 requirement set forth here and may not be used as a substitution for verbal communications. 13 Furthermore, this Court’s standing orders regarding civil management procedures, available at 14 www.caed.uscourts.gov/CAEDnew/assets/File/SAB- 15 %20Chambers%20Information%20(March%202022)-CRD(1).pdf, provide: 16 Parties must note that under the ‘meet and confer’ requirements, the Court requires, in addition to any written correspondence the parties 17 may engage in (letters and/or email), that the parties physically talk to each other before the hearing about the discovery dispute. 18 This requirement can be accomplished in person, or through videoconferencing.” 19 20 United States Magistrate Judge Stanley A. Boone Civil Management Procedures, “General Civil 21 Case Information,” (last visited Feb. 8, 2023) (emphasis added); see also Evans v. City of Vallejo, 22 No. 2:17-cv-01619 TLN AC, 2018 WL 4582605, at *2 (E.D. Cal. Sept. 25, 2018) (noting written 23 correspondence between the parties, including email is insufficient to satisfy the parties’ meet and 24 confer obligations under Local Rule 251(b)). Furthermore, upon review of the attached email 25 correspondences, it appears Plaintiffs also filed their initial unilateral statement of discovery 26 dispute (ECF No. 62) prior to completion of the meet and confer process. 27 4 The Court is amenable to a stipulated request by the parties to modify the scheduling order to reopen fact discovery 1 “A court can deny a motion to compel solely because of a party’s failure to meet and confer 2 prior to filing the motion.” Evans, 2018 WL 4582605, at *2 (citing Rogers v. Giurbino, 288 F.R.D. 3 469, 477 (S.D. Cal. 2012); Scheinuck v. Sepulveda, No. C 09-0727 WHA, 2010 WL 5174340, at 4 *1–2 (N.D. Cal. Dec. 15, 2010)). Because Plaintiffs failed to engage in meet and confer 5 communications in compliance with the Local Rules, the instant motion is premature and must be 6 denied.5 7 Furthermore, Plaintiffs’ motion is untimely. As previously noted, the scheduling order 8 expressly requires all discovery—inclusive of discovery requests, meeting and conferring, any 9 discovery motion, and the hearing on that motion—to be completed by the discovery cutoff date. 10 (ECF No. 21 at 2–3.) That is, the order specifically requires parties to file any motion to compel 11 sufficiently in advance of the discovery cutoff date so that the motion may be heard and the Court 12 may grant effective relief within the allotted discovery time; moreover, the parties were cautioned 13 that, absent a showing of good cause, discovery motions would not be heard after the discovery 14 deadline, and a party’s failure to have a discovery dispute heard sufficiently in advance of the 15 discovery cutoff may result in denial of the motion as untimely. (Id.) Here, Plaintiffs filed the 16 instant motion to compel on January 12, 2023, a mere four days before the close of discovery. 17 Obviously, the deadlines to file an opposition and reply, and the hearing on the motion, would 18 occur after the January 16, 2023 (extended) discovery cutoff date, thus rendering the motion 19 untimely under the scheduling order. Yet Plaintiffs did not seek to modify the schedule to further 20 extend discovery so that their motion could be heard, nor have they demonstrated any good cause 21 exists to do so. 22 Indeed, as the Court has now noted multiple times throughout this order, the schedule has 23 already been modified several times to extend the discovery deadlines for the parties. Plaintiffs 24 became aware of the ERRI issue on August 10, 2022, when the information arose during Ms. 25 Cobb’s deposition. While the parties proffer meet and confer communications began around that 26 time, Plaintiffs did not serve their RPD3 requesting the unredacted documents until December 6, 27 5 The Court declines, at this juncture, to discuss the substantive arguments presented by Plaintiffs with respect to 1 2022. Further, as particularly relevant here, after discovery closed on August 31, 2022, Plaintiffs 2 moved to reopen discovery on the express basis that the parties needed to litigate the issue of 3 County’s refusal to produce unredacted ERRI documents it had previously agreed to produce. 4 (ECF No. 49 at 7–8.) Thus, by Plaintiffs’ own admission (and the sworn affidavit of their counsel 5 (see Powell-2 Decl. ¶ 21)), Plaintiffs knew Defendants were unwilling to produce the unredacted 6 ERRIs at least as of October 17, 2022. The Court reopened discovery in November so that 7 Plaintiffs could resolve this very issue, yet Plaintiffs did not file the instant motion until mid- 8 January 2023. 9 Plaintiffs have filed three other motions to compel in this litigation alone. (See ECF Nos. 10 24, 25, 32.) The parties are represented by counsel and are by no means considered unsophisticated 11 in the practice of litigation. It is therefore presumed that the parties are familiar with the Local 12 Rules of this District and this Court’s standing orders, particularly as they pertain to discovery 13 practices. Moreover, within the course of this litigation, the Court has repeatedly admonished and 14 cautioned the parties that discovery must be timely and diligently completed and deadlines will 15 not be moved absent a strong showing of good cause. Here, Plaintiffs learned of the ERRIs in 16 August and confirmed Defendants would not produce unredacted ERRIs in October; yet they did 17 not officially serve RPD3 until December, and they waited until mid-January 2023 to file a motion 18 to compel. The Court can discern no reason for Plaintiffs’ several months’ delay in bringing the 19 instant motion. 20 Even after the Court reopened discovery for Plaintiffs in November, extending the fact- 21 discovery deadline to January 16, 2023, to enable the parties to litigate the redacted ERRIs issue, 22 Plaintiffs did not complete the meet and confer process and they did not file the instant motion 23 until January 12, 2023, a mere four days prior to the close of discovery. This motion filing date 24 does not comport with the Court’s standing order requiring parties to file motions to compel 25 sufficiently in advance of the discovery cutoff so that the Court may grant effective relief within 26 the allotted discovery time. (ECF No. 21 at 2–3.) Instead, Defendants’ opposition and both 27 statements of dispute were all filed—and the motion was set to be heard—on dates well after the 1 submit filings and attempt to conduct discovery in complete disregard of the cutoff date. Nor have 2 the parties attempted to proffer any factual basis demonstrating good cause exists to, once again, 3 extend the discovery deadline. 4 For all of these reasons, Plaintiffs’ motion must be denied. The denial shall be without 5 prejudice; however, no further discovery filings shall be permitted prior to the reopening of 6 discovery. Furthermore, the parties are advised that the Court is not inclined to again modify the 7 schedule absent an extremely strong proffer of good cause, which necessitates a showing of 8 diligence that has not as of yet been demonstrated in this litigation. 9 C. Requests for Sanctions 10 Both parties seek sanctions in relation to the instant discovery dispute. For the reasons 11 asserted herein, both requests shall be denied. 12 1. Legal Standard 13 If a motion to compel discovery is granted, the Court must order the “party or deponent 14 whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay 15 the movant’s reasonable expenses incurred in making the motion, including attorney’s fees” 16 unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or 17 discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was 18 substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. 19 Civ. P. 37(a)(5)(A). If the motion is denied, the court must “require the movant, the attorney filing 20 the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses 21 incurred in opposing the motion, including attorney’s fees,” however the court “must not order 22 this payment if the motion was substantially justified or other circumstances make an award of 23 expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Where the motion is granted in part and denied in 24 part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses 25 for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 26 Further, if a party fails to obey an order to provide or permit discovery, the court may issue 27 further just orders, which may include: “(i) directing that the matters embraced in the order or other 1 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, 2 or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) 3 staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in 4 whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating 5 as contempt of court the failure to obey any order except an order to submit to a physical or mental 6 examination.” Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to the [other sanctions 7 outlined in the Rule,] the court must order the disobedient party, the attorney advising that party, 8 or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the 9 failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. 10 R. Civ. P. 37(b)(2)(C). 11 2. Analysis 12 Here, Plaintiffs seek attorneys’ fees and paralegal fees in the total amount of $4,015.00, to 13 cover the costs of bringing the instant motion. (Powell Decl. ¶¶ 24, 26; Ex. G, ECF No. 59-1 at 14 34–37; Ex. H, ECF No. 59-1 at 38–55.) In addition, Plaintiffs seek sanctions pursuant to the 15 Court’s inherent power to issue sanctions due to Defendant’s bad faith conduct. (ECF No. 59 at 16 10–11.) Plaintiffs contend Defendant exhibited bad faith because it initially agreed to produce the 17 unredacted documents, only to later produce meritless objections and pretend to not understand 18 Plaintiff’s request. 19 Defendant argues an award of sanctions to Plaintiffs is unwarranted because Plaintiffs 20 circumvented the proper procedural process in filing the instant motion to compel without 21 appropriate efforts to meet and confer on the issues addressed herein. (ECF No. 61 at 6.) Further, 22 Defendant seeks sanctions in the amount of $1,625.00 for fees it was required to incur to defend 23 against the instant motion. (Id. at 7.) 24 The Court finds neither party is entitled to recovery of fees. Having determined Plaintiffs’ 25 motion must be denied as both premature because Plaintiffs failed to properly comply with the 26 meet and confer process required under Local Rule 251 and this Court’s standing orders, and 27 untimely because it purports to continue to litigate discovery issues after the close of discovery, 1 Defendant is entitled to sanctions. In sum, both parties have demonstrated a lack of diligence, 2 causing unnecessary delay in the discovery process through their mutual refusal to engage in 3 appropriate and professionally civil meet and confer communications. Both parties have therefore, 4 to the dismay of this Court, squandered valuable time and resources—of their clients, the 5 taxpayers, and this Court—with their recalcitrant discovery practices and gamesmanship. 6 Accordingly, the parties’ cross-requests for sanctions shall be denied. 7 Finally, in light of the reassignment of this case to District Judge Ana de Alba, the Court 8 shall reset the pretrial conference currently set before District Judge Dale A. Drozd. However, the 9 parties are advised that no additional modifications to the schedule will be permitted absent an 10 extremely strong showing of good cause as well as diligence by the parties.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 IV. 2 CONCLUSION AND ORDER 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. The hearing on Plaintiffs’ motion to compel set for February 15, 2023, at 10:00 5 a.m. is hereby VACATED; 6 2. Plaintiffs’ motion to compel Defendant County of Stanislaus’s production of 7 documents (ECF No. 59), is DENIED, without prejudice; 8 3. Plaintiffs’ request for sanctions is DENIED; 9 4. Defendant’ cross-request for sanctions is DENIED; and 10 11 5. The pretrial conference currently set for June 12, 2023 is RESET for August 14, 12 2023, at 1:30 p.m., in Courtroom 1 before District Judge Ana de Alba. 13 14 IS SO ORDERED. OF af Bc 15 Pated: _February 13, 2023 _ ee 16 UNITED STATES MAGISTRATE JUDGE
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