2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jermaine Hampton, Case No. 2:20-cv-00578-APG-DJA 6 Plaintiff, 7 Order v. 8 State of Nevada, et al., 9 Defendants. 10 11 12 This is a prisoner civil rights action arising out of Defendants Detective T. Edwards and 13 Defendant Officer Lunt (the “LVMPD Defendants”) arrest of Plaintiff Jermaine Hampton on June 14 8, 2019. Plaintiff sues the LVMPD Defendants, along with the State of Nevada, City of Las 15 Vegas, District Attorney Sarah Overly, and District Attorney Stephanie Getter for damages and 16 declaratory relief, claiming violations of his Fourth and Fourteenth Amendment rights. Plaintiff 17 moves to compel Defendants’ responses to certain of his discovery requests. (ECF No. 93). 18 Defendant moves to file exhibits to their motion for summary judgment under seal. (ECF No. 19 100). 20 Because the Court finds that Plaintiff’s motion to compel is untimely, it denies his motion. 21 Because the Court finds that Plaintiff’s interest in keeping his personally identifying information 22 confidential outweighs the public’s interest in viewing them, it grants Defendants’ motion to seal. 23 The Court finds these matters properly resolved without a hearing. LR 78-1. 24 I. Background. 25 A. Plaintiff’s motion to compel. 26 The LVMPD Defendants have extended the discovery deadline four times. (ECF Nos. 35, 27 59, 68, 85, 91). They have extended the deadline for dispositive motions and the pretrial order 1 motions to extend, arguing in part that the LVMPD Defendants have not been diligent. (ECF 2 Nos. 56, 62). The Court ultimately granted the extension requests. (ECF Nos. 35, 59, 68, 85, 91, 3 and 94). Under those extensions, the discovery deadline passed on September 27, 2021. (ECF 4 No. 91). The dispositive motion deadline passed on December 10, 2021. (ECF No. 94). 5 Plaintiff served his third request for production on Defendants on September 9, 2020. 6 (ECF No. 93 at 2). In it, Plaintiff asked that the LVMPD Defendants provide documents showing 7 complaints about and disciplinary action taken against the LVMPD Defendants. (Id. at 5-8). The 8 LVMPD Defendants objected to Plaintiff’s requests as vague, overbroad, confidential, and 9 irrelevant and asserted several privileges over them. (Id.). 10 Plaintiff served his fifth request for production on the LVMPD Defendants on February 11 10, 2021. (Id. at 2). In it, he requested complaints, discipline reports, and incident reports for the 12 LVMPD Defendants. (Id. at 11-21). The LVMPD Defendants again objected to Plaintiff’s 13 requests as vague, overbroad, irrelevant, confidential, and protected under several privileges. 14 (Id.). 15 Plaintiff served his sixth request for production on the LVMPD Defendants on March 26, 16 2021. (Id. at 2). In it, he requests video of the interior of Lunt’s patrol car, complaints against the 17 LVMPD Defendants, and documents showing the exact date and time when “Officer conducted a 18 Schedule II Background Check.” (Id. at 23-29). The LVMPD Defendants explained that there is 19 no video showing the interior of Lunt’s car. (Id.). They objected to the request for documents 20 regarding a background check in part as unintelligible. (Id.). They objected to the remainder of 21 the requests as vague, overbroad, irrelevant, confidential, and subject to certain privileges. (Id.). 22 Plaintiff served his seventh request for production on the LVMPD Defendants on May 4, 23 2021. (Id. at 2). He again requested documents regarding complaints and disciplinary action 24 against the LVMPD Defendants and video footage from the inside of Lunt’s patrol car. (Id. at 33- 25 41). The LVMPD Defendants objected on the same grounds as before, adding that Plaintiff’s 26 requests were cumulative because of his multiple, similar requests. (Id.). 27 Plaintiff met and conferred with counsel for the LVMPD Defendants in June of 2021. (Id. 1 to those documents and wouldn’t be able to produce them.” (Id.). Plaintiff filed his motion to 2 compel about four months later, on October 19, 2021. (Id.). 3 In his motion, Plaintiff argues that, because the LVMPD Defendants have noticed 4 subpoenas and conducted a deposition of Plaintiff, they have diligently pursued discovery in 5 every way except responding to Plaintiff’s requests for production. (Id. at 3). Plaintiff argues 6 that he has only received objections as responses and thus, asks that the Court compel the 7 LVMPD Defendants to respond. (Id. at 3-4). In response, the LVMPD Defendants argue that the 8 Court should deny Plaintiff’s motion because it is untimely, that the video files Plaintiff seeks do 9 not exist, and because the LVMPD Defendants properly objected to Plaintiff’s discovery.1 (ECF 10 No. 95 at 1-2). The LVMPD Defendants argue that Plaintiff’s motion is untimely under the 11 multi-factor analysis which courts in this district apply to motions to compel. (Id. at 4-8). The 12 LVMPD Defendants explain that, rather than meet and confer to discuss the objections with 13 which he did not agree, Plaintiff continued to submit requests for production asking for the same 14 information again and again, only many months later moving to compel. (Id. at 6). This delay, 15 the LVMPD Defendants argue, after a long failure to meet and confer, is unexplained in 16 Plaintiff’s motion. (Id. at 8). Plaintiff did not file a reply. 17 B. Defendants’ motion to seal. 18 Defendants filed their motion to seal exhibits to their motions for summary judgment on 19 December 14, 2021. (ECF No. 100). Defendants explain that the exhibits contain Plaintiff’s 20 personal identifying information. (Id. at 2). Defendants assert that the exhibits currently attached 21 to the motions for summary judgment contain minor redactions to shield Plaintiff’s information. 22 (Id.). They add that the video and audio files they have filed manually with the Court should also 23 be sealed for the same reason. (Id.). Plaintiff, although served with the motion, did not file a 24 response. 25 26
27 1 Because the Court bases its analysis on timeliness, it does not outline the LVMPD Defendants’ 1 II. Discussion. 2 A. The Court denies Plaintiff’s motion to compel. 3 The Court has broad discretionary power to control discovery. Little v. City of Seattle, 4 863 F.2d 681, 685 (9th Cir. 1988). “With respect to a motion to compel discovery, there is no 5 specific deadline enunciated in the governing rules and a determination as to the timeliness of 6 such a motion is left to the exercise of judicial discretion.” Herndon v. City of Henderson, 507 F. 7 Supp. 3d 1243, 1247 (D. Nev. 2020). That determination is based on whether the movant unduly 8 delayed. Id. “A finding of untimeliness, standing alone, dooms a motion to compel regardless of 9 its substantive merits.” Id. 10 A motion to compel filed before the discovery cutoff is generally considered timely. Id. 11 (citing V5 Technologies v. Switch, Ltd., 332 F.R.D. 356, 364-65 (concluding that a motion to 12 compel filed five months before the discovery cutoff was timely based on the circumstances of 13 that case even though it was filed eleven months after the discovery dispute arose)). “A motion to 14 compel filed after the dispositive motion deadline is presumptively untimely because continuing 15 to entertain discovery matters at that juncture interferes with the advancement of the case to the 16 merits phase.” Id. (citing Gray v. Cox, No. 2:14-cv-01094-JAD-PAL, 2016 WL 4367236, at *3 17 (D. Nev. Aug. 12, 2016) (concluding that a pro se prisoner’s motion to compel filed the day after 18 the dispositive motion deadline was untimely when filed seven weeks after the discovery dispute 19 reached an impasse)).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jermaine Hampton, Case No. 2:20-cv-00578-APG-DJA 6 Plaintiff, 7 Order v. 8 State of Nevada, et al., 9 Defendants. 10 11 12 This is a prisoner civil rights action arising out of Defendants Detective T. Edwards and 13 Defendant Officer Lunt (the “LVMPD Defendants”) arrest of Plaintiff Jermaine Hampton on June 14 8, 2019. Plaintiff sues the LVMPD Defendants, along with the State of Nevada, City of Las 15 Vegas, District Attorney Sarah Overly, and District Attorney Stephanie Getter for damages and 16 declaratory relief, claiming violations of his Fourth and Fourteenth Amendment rights. Plaintiff 17 moves to compel Defendants’ responses to certain of his discovery requests. (ECF No. 93). 18 Defendant moves to file exhibits to their motion for summary judgment under seal. (ECF No. 19 100). 20 Because the Court finds that Plaintiff’s motion to compel is untimely, it denies his motion. 21 Because the Court finds that Plaintiff’s interest in keeping his personally identifying information 22 confidential outweighs the public’s interest in viewing them, it grants Defendants’ motion to seal. 23 The Court finds these matters properly resolved without a hearing. LR 78-1. 24 I. Background. 25 A. Plaintiff’s motion to compel. 26 The LVMPD Defendants have extended the discovery deadline four times. (ECF Nos. 35, 27 59, 68, 85, 91). They have extended the deadline for dispositive motions and the pretrial order 1 motions to extend, arguing in part that the LVMPD Defendants have not been diligent. (ECF 2 Nos. 56, 62). The Court ultimately granted the extension requests. (ECF Nos. 35, 59, 68, 85, 91, 3 and 94). Under those extensions, the discovery deadline passed on September 27, 2021. (ECF 4 No. 91). The dispositive motion deadline passed on December 10, 2021. (ECF No. 94). 5 Plaintiff served his third request for production on Defendants on September 9, 2020. 6 (ECF No. 93 at 2). In it, Plaintiff asked that the LVMPD Defendants provide documents showing 7 complaints about and disciplinary action taken against the LVMPD Defendants. (Id. at 5-8). The 8 LVMPD Defendants objected to Plaintiff’s requests as vague, overbroad, confidential, and 9 irrelevant and asserted several privileges over them. (Id.). 10 Plaintiff served his fifth request for production on the LVMPD Defendants on February 11 10, 2021. (Id. at 2). In it, he requested complaints, discipline reports, and incident reports for the 12 LVMPD Defendants. (Id. at 11-21). The LVMPD Defendants again objected to Plaintiff’s 13 requests as vague, overbroad, irrelevant, confidential, and protected under several privileges. 14 (Id.). 15 Plaintiff served his sixth request for production on the LVMPD Defendants on March 26, 16 2021. (Id. at 2). In it, he requests video of the interior of Lunt’s patrol car, complaints against the 17 LVMPD Defendants, and documents showing the exact date and time when “Officer conducted a 18 Schedule II Background Check.” (Id. at 23-29). The LVMPD Defendants explained that there is 19 no video showing the interior of Lunt’s car. (Id.). They objected to the request for documents 20 regarding a background check in part as unintelligible. (Id.). They objected to the remainder of 21 the requests as vague, overbroad, irrelevant, confidential, and subject to certain privileges. (Id.). 22 Plaintiff served his seventh request for production on the LVMPD Defendants on May 4, 23 2021. (Id. at 2). He again requested documents regarding complaints and disciplinary action 24 against the LVMPD Defendants and video footage from the inside of Lunt’s patrol car. (Id. at 33- 25 41). The LVMPD Defendants objected on the same grounds as before, adding that Plaintiff’s 26 requests were cumulative because of his multiple, similar requests. (Id.). 27 Plaintiff met and conferred with counsel for the LVMPD Defendants in June of 2021. (Id. 1 to those documents and wouldn’t be able to produce them.” (Id.). Plaintiff filed his motion to 2 compel about four months later, on October 19, 2021. (Id.). 3 In his motion, Plaintiff argues that, because the LVMPD Defendants have noticed 4 subpoenas and conducted a deposition of Plaintiff, they have diligently pursued discovery in 5 every way except responding to Plaintiff’s requests for production. (Id. at 3). Plaintiff argues 6 that he has only received objections as responses and thus, asks that the Court compel the 7 LVMPD Defendants to respond. (Id. at 3-4). In response, the LVMPD Defendants argue that the 8 Court should deny Plaintiff’s motion because it is untimely, that the video files Plaintiff seeks do 9 not exist, and because the LVMPD Defendants properly objected to Plaintiff’s discovery.1 (ECF 10 No. 95 at 1-2). The LVMPD Defendants argue that Plaintiff’s motion is untimely under the 11 multi-factor analysis which courts in this district apply to motions to compel. (Id. at 4-8). The 12 LVMPD Defendants explain that, rather than meet and confer to discuss the objections with 13 which he did not agree, Plaintiff continued to submit requests for production asking for the same 14 information again and again, only many months later moving to compel. (Id. at 6). This delay, 15 the LVMPD Defendants argue, after a long failure to meet and confer, is unexplained in 16 Plaintiff’s motion. (Id. at 8). Plaintiff did not file a reply. 17 B. Defendants’ motion to seal. 18 Defendants filed their motion to seal exhibits to their motions for summary judgment on 19 December 14, 2021. (ECF No. 100). Defendants explain that the exhibits contain Plaintiff’s 20 personal identifying information. (Id. at 2). Defendants assert that the exhibits currently attached 21 to the motions for summary judgment contain minor redactions to shield Plaintiff’s information. 22 (Id.). They add that the video and audio files they have filed manually with the Court should also 23 be sealed for the same reason. (Id.). Plaintiff, although served with the motion, did not file a 24 response. 25 26
27 1 Because the Court bases its analysis on timeliness, it does not outline the LVMPD Defendants’ 1 II. Discussion. 2 A. The Court denies Plaintiff’s motion to compel. 3 The Court has broad discretionary power to control discovery. Little v. City of Seattle, 4 863 F.2d 681, 685 (9th Cir. 1988). “With respect to a motion to compel discovery, there is no 5 specific deadline enunciated in the governing rules and a determination as to the timeliness of 6 such a motion is left to the exercise of judicial discretion.” Herndon v. City of Henderson, 507 F. 7 Supp. 3d 1243, 1247 (D. Nev. 2020). That determination is based on whether the movant unduly 8 delayed. Id. “A finding of untimeliness, standing alone, dooms a motion to compel regardless of 9 its substantive merits.” Id. 10 A motion to compel filed before the discovery cutoff is generally considered timely. Id. 11 (citing V5 Technologies v. Switch, Ltd., 332 F.R.D. 356, 364-65 (concluding that a motion to 12 compel filed five months before the discovery cutoff was timely based on the circumstances of 13 that case even though it was filed eleven months after the discovery dispute arose)). “A motion to 14 compel filed after the dispositive motion deadline is presumptively untimely because continuing 15 to entertain discovery matters at that juncture interferes with the advancement of the case to the 16 merits phase.” Id. (citing Gray v. Cox, No. 2:14-cv-01094-JAD-PAL, 2016 WL 4367236, at *3 17 (D. Nev. Aug. 12, 2016) (concluding that a pro se prisoner’s motion to compel filed the day after 18 the dispositive motion deadline was untimely when filed seven weeks after the discovery dispute 19 reached an impasse)). Courts in this district have applied a non-exhaustive list of factors to 20 determine the timeliness of a motion to compel: (1) the length of time since expiration of the 21 discovery deadline; (2) the length of time the moving party has known about the discovery; 22 (3) whether the discovery deadline has been extended; (4) the explanation for the tardiness or 23 delay; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; 24 (7) any prejudice to the party from whom discovery is sought; and (8) disruption of the Court’s 25 schedule. Id. at 1248. The timeliness of a motion to compel “ is determined based on the entire 26 complex of circumstances that gave rise to the motion…” Id. (internal citations and quotations 27 omitted). 1 1. The length of time since the discovery deadline expired. 2 Discovery ended in this case on September 27, 2021. (ECF No. 91). Plaintiff waited 3 nearly a month after discovery closed to file his motion to compel. (ECF No. 93). This factor 4 weighs against timeliness. 5 2. The length of time Plaintiff has known about the discovery. 6 Plaintiff first learned of the LVMPD Defendants’ objections to his requests for 7 information regarding complaints and disciplinary action in October of 2020. (ECF No. 93 at 8). 8 He learned of the LVMPD Defendants’ objections to his requests for video evidence in March of 9 2021. (Id. at 30). Nonetheless, Plaintiff continued to reassert his requests—changing the 10 wording slightly but requesting essentially the same things—for months until he met and 11 conferred with counsel for the LVMPD Defendants in June of 2021. Plaintiff then waited another 12 four months from the meet and confer to file his motion to compel. This factor weighs against 13 timeliness. 14 3. Whether the discovery deadline has been extended. 15 The discovery deadline has been extended multiple times. While the LVMPD Defendants 16 drove the extensions, on the occasions that Plaintiff objected to the motions, he cited the LVMPD 17 Defendants’ lack of diligence as a reason to deny them. However, now that Plaintiff seeks to 18 compel discovery after discovery has closed, he has not filed a reply to address his own lack of 19 diligence. This factor weighs against timeliness. 20 4. Plaintiff’s explanation for the delay. 21 Although the LVMPD Defendants’ primary reason for objecting to Plaintiff’s motion to 22 compel is its timeliness, Plaintiff did not file a reply to address these concerns. Nor did he 23 include an explanation for the untimeliness in his original motion. With no explanation for the 24 delay, this factor weighs against timeliness. 25 5. Whether dispositive motions have been scheduled or filed. 26 Dispositive motions have been filed. (ECF Nos. 96, 97). The deadline for filing these 27 motions passed on December 10, 2021. (ECF No. 91). This factor weighs against timeliness. 1 6. The age of the case. 2 This case is relatively old, having been filed on March 23, 2020. (ECF No. 1). Nearly 3 two years have passed since Plaintiff initiated the case. While the LVMPD Defendants sought 4 the extensions contributing in part to this delay, the age of the case nonetheless weighs against 5 timeliness. 6 7. Prejudice to the LVMPD Defendants. 7 Not only have the LVMPD Defendants already filed their motion for summary judgment, 8 but they have also repeatedly informed Plaintiff that certain of the evidence he seeks does not 9 exist. The LVMPD Defendants cannot produce video footage they do not have. And producing 10 the records Plaintiff seeks related to complaints and disciplinary records for Edwards and Lunt 11 would almost certainly impact their pending summary judgment motions and result in re-opening 12 discovery. The LVMPD Defendants thus face a high level of prejudice, and this factor weighs 13 against timeliness. 14 8. Disruption of the Court’s schedule. 15 Allowing Plaintiff’s motion to compel to proceed would also disrupt the Court’s schedule. 16 Discovery deadlines have all passed and the motions for summary judgment are currently 17 pending. Because a motion for summary judgment is premised on the argument that there are no 18 issues of material fact remaining, reopening discovery for Plaintiff to request information about 19 complaints and disciplinary action against the LVMPD Defendants would disrupt the Court’s 20 decision on these motions. This factor weighs against timeliness. Because each of the factors the 21 Court considers weighs against timeliness, the Court denies Plaintiff’s motion to compel as 22 untimely. 23 B. The Court grants the LVMPD Defendants’ motion to seal. 24 A party seeking to file a confidential document under seal must file a motion to seal and 25 must comply with the Ninth Circuit’s directives in Kamakana v. City and County of Honolulu, 26 447 F.3d 1172 (9th Cir. 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 27 1092, 1097 (9th Cir. 2016). A party seeking to seal judicial records bears the burden of meeting 1 1183. Under that standard, “a court may seal records only when it finds ‘a compelling reason and 2 articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture.’” Ctr. for 3 Auto Safety, 809 F.3d at 1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then 4 ‘conscientiously balance[ ] the competing interests of the public and the party who seeks to keep 5 certain judicial records secret.” Ctr. for Auto Safety, 809 F.3d at 1097. However, the failure of 6 an opposing party to file points and authorities in response to any motion constitutes a consent to 7 the granting of the motion. LR 7-2(d). 8 The Court grants the LVMPD Defendants’ motion to seal because Plaintiff has not 9 responded to the motion and the LVMPD Defendants seek to seal Plaintiff’s personally 10 identifying information. Defendants have otherwise filed the documents with redactions on the 11 docket. Additionally, while the public has little interest in having Plaintiff’s personally 12 identifying information, Plaintiff has a strong interest in maintaining its confidentiality. The 13 Court thus grants the motion. 14 IT IS THEREFORE ORDERED that Plaintiff’s motion to compel (ECF No. 93) is 15 denied. 16 IT IS FURTHER ORDERED that the LVMPD Defendants’ motion to seal (ECF No. 17 100) is granted. 18 DATED: January 11, 2022 19 DANIEL J. ALBREGTS 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27