1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Virginia L. Johnson, et al., No. 2:20-cv-00138-KJM-DB 12 Plaintiffs, ORDER 13 v. Merck & Co., Inc., et al., 1S Defendants. 16 17 This matter is before the court on defendants’ motion to reopen discovery. The court 18 | submitted the matter without oral argument. Because defendants have not established good cause 19 | to reopen discovery, the court denies the motion. 20 | I. BACKGROUND 21 In its scheduling order, issued in May 2020, the court determined that fact discovery 22 | would be completed by February 1, 2021, and all expert discovery would be completed by 23 | April 30, 2021. See Minutes, ECF No. 10. The court ultimately set dates for completing expert 24 | disclosures and exchanging supplemental and rebuttal expert witnesses as May 10, 2021, and 25 | May 30, 2021, respectively. See Order, ECF No. 25. 26 Defendants’ former counsel, Thomas Yen, conducted only minimal discovery. He did 27 | not, for instance, depose all plaintiffs, depose any of plaintiffs’ expert witnesses, conduct 28 | independent medical examinations of all plaintiffs, disclose a single rebuttal or supplemental
1 expert witness after receiving plaintiffs’ expert witness disclosure, or issue all necessary 2 subpoenas. See Am. Mot. Reopen at 6–7,1 ECF No. 36-1. 3 On August 17, 2021, defendants’ counsel withdrew. See Not. Of Withdrawal, ECF No. 4 27. On November 1, 2021, defendants filed for substitution of counsel, see ECF No. 31, and the 5 court granted the request on November 19, 2021, see ECF No. 33. On November 19, 2021— 6 roughly six months after the completion of expert disclosures and exchange of rebuttal expert 7 witnesses, seven months after the close of all expert discovery, and ten months after the close of 8 fact discovery—defendants filed their motion to reopen discovery. See generally Mot. Reopen, 9 ECF No. 34-1. Plaintiffs oppose the motion. See generally Opp’n, ECF No. 40. The court 10 submitted the motion without a hearing and resolves it here. 11 II. LEGAL STANDARD 12 A moving party must show good cause to modify a scheduling order. Fed. R. Civ. P. 13 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). The “good 14 cause” standard also applies to requests to reopen discovery. See, e.g., Sheridan v. Reinke, 15 611 F. App'x 381, 384 (9th Cir. 2015) (applying Johnson “good cause” requirement to motions to 16 reopen discovery); Yeager v. Yeager, No. 2:06-001196, 2009 WL 1159175, at *2 (E.D. Cal. Apr. 17 29, 2009) (noting party must show “good cause” to reopen discovery). 18 Specific factors courts consider when analyzing a motion to reopen discovery include: 19 (1)whether trial is imminent, (2) whether the request is opposed, (3) 20 whether the non-moving party would be prejudiced, (4) whether the 21 moving party was diligent in obtaining discovery within the 22 guidelines established by the court, (5) the foreseeability of the need 23 for additional discovery in light of the time allowed for discovery by 24 the district court, and (6) the likelihood that the discovery will lead 25 to relevant evidence. 26 United States, ex rel. William Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (1995) (citing 27 Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)). Of these six factors, the primary 28 factor is the fourth: whether the moving party was diligent in its attempts to complete discovery 1 To avoid confusion, pages cited here are those printed on the top right page of the document by the CM/ECF system. 1 in a timely manner. See Johnson, 975 F.2d at 609. If the moving party was not diligent, the 2 inquiry should end, and the request should be denied. Id. 3 The decision to reopen discovery involves an exercise of discretion. Hughes Aircraft Co. 4 v.United States, ex rel. William Schumer, 520 U.S. 939, 952 (1997). “Motions are more often 5 granted when the opposing party's actions caused delay or when the need to amend arises from 6 some unexpected or outside source.” Fed. Deposit Ins. Corp. as Receiver for Butte Cmty. Bank v. 7 Ching, No. 13-01710, 2016 WL 1756913, at *2 (E.D. Cal. May 3, 2016) (citing Hood v. Hartford 8 Life and Acc. Ins. Co., 567 F. Supp. 2d 1221, 1225–26 (E.D. Cal. 2008)). 9 III. ANALYSIS 10 Courts use a three-step inquiry in assessing diligence for the purposes of determining good 11 cause under Rule 16: 12 [T]o demonstrate diligence under Rule 16's “good cause” standard, 13 the movant may be required to show the following: (1) that she was 14 diligent in assisting the Court in creating a workable Rule 16 order; 15 (2) that her noncompliance with a Rule 16 deadline occurred or will 16 occur, notwithstanding her diligent efforts to comply, because of the 17 development of matters which could not have been reasonably 18 foreseen or anticipated at the time of the Rule 16 scheduling 19 conference; and (3) that she was diligent in seeking amendment of 20 the Rule 16 order, once it became apparent that she could not comply 21 with the order. 22 Grant v. United States, No. 11-00360, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011) 23 (quoting Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 24 Defendants fall short at each step of this inquiry. As to step one, defendants claim “[o]ne 25 of the fundamental issues here is that the Court ordered the extension of expert disclosures, 26 without extending the expert witness discovery window,” Am. Mot. Reopen at 5, which “made it 27 impossible to comply with the discovery deadlines,” id. It is true that expert disclosures were due 28 ten days before the close of expert discovery and supplemental and rebuttal expert witness 29 disclosures were due thirty days before the close of expert discovery. But this is a problem 30 attributable at least in part to defendants: The parties’ stipulation to extend expert witness 31 disclosure deadlines provides that the extension was made “at the request of the defendant.” Stip. 1 at 2, ECF No. 22 (emphasis added). Diligent counsel would have requested a later date for 2 completing all expert discovery. From this vantage point, while it is water under the bridge, the 3 parties’ filing did not meet the requirement to “assist[] the court in creating a workable Rule 16 4 Order.”2 Grant, 2011 WL 5554878, at *4 (quoting Jackson, 186 F.R.D. at 608). 5 Second, defendants point to no evidence that their noncompliance was due to 6 developments that could not have been reasonably foreseen or anticipated at the time of the Rule 7 16 scheduling conference. Without such evidence, the court assumes there is none. To the extent 8 defendants implicitly suggest they could not have foreseen former counsel’s seeming indifference 9 toward this case, the court disagrees. Defendants argue that former counsel’s discovery efforts 10 have been unsatisfactory since the inception of this case. See Am. Mot. Reopen at 5–7. 11 Nevertheless, defendants continued to retain former counsel until mid-August 2021, well after the 12 discovery deadlines had passed. Furthermore, defendants did not substitute new counsel until 13 November 2021, almost three months later. They “could have taken these deadlines into account 14 when deciding to replace . . . counsel,” Yeager, 2009 WL 1159175, at *2, but did not.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Virginia L. Johnson, et al., No. 2:20-cv-00138-KJM-DB 12 Plaintiffs, ORDER 13 v. Merck & Co., Inc., et al., 1S Defendants. 16 17 This matter is before the court on defendants’ motion to reopen discovery. The court 18 | submitted the matter without oral argument. Because defendants have not established good cause 19 | to reopen discovery, the court denies the motion. 20 | I. BACKGROUND 21 In its scheduling order, issued in May 2020, the court determined that fact discovery 22 | would be completed by February 1, 2021, and all expert discovery would be completed by 23 | April 30, 2021. See Minutes, ECF No. 10. The court ultimately set dates for completing expert 24 | disclosures and exchanging supplemental and rebuttal expert witnesses as May 10, 2021, and 25 | May 30, 2021, respectively. See Order, ECF No. 25. 26 Defendants’ former counsel, Thomas Yen, conducted only minimal discovery. He did 27 | not, for instance, depose all plaintiffs, depose any of plaintiffs’ expert witnesses, conduct 28 | independent medical examinations of all plaintiffs, disclose a single rebuttal or supplemental
1 expert witness after receiving plaintiffs’ expert witness disclosure, or issue all necessary 2 subpoenas. See Am. Mot. Reopen at 6–7,1 ECF No. 36-1. 3 On August 17, 2021, defendants’ counsel withdrew. See Not. Of Withdrawal, ECF No. 4 27. On November 1, 2021, defendants filed for substitution of counsel, see ECF No. 31, and the 5 court granted the request on November 19, 2021, see ECF No. 33. On November 19, 2021— 6 roughly six months after the completion of expert disclosures and exchange of rebuttal expert 7 witnesses, seven months after the close of all expert discovery, and ten months after the close of 8 fact discovery—defendants filed their motion to reopen discovery. See generally Mot. Reopen, 9 ECF No. 34-1. Plaintiffs oppose the motion. See generally Opp’n, ECF No. 40. The court 10 submitted the motion without a hearing and resolves it here. 11 II. LEGAL STANDARD 12 A moving party must show good cause to modify a scheduling order. Fed. R. Civ. P. 13 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). The “good 14 cause” standard also applies to requests to reopen discovery. See, e.g., Sheridan v. Reinke, 15 611 F. App'x 381, 384 (9th Cir. 2015) (applying Johnson “good cause” requirement to motions to 16 reopen discovery); Yeager v. Yeager, No. 2:06-001196, 2009 WL 1159175, at *2 (E.D. Cal. Apr. 17 29, 2009) (noting party must show “good cause” to reopen discovery). 18 Specific factors courts consider when analyzing a motion to reopen discovery include: 19 (1)whether trial is imminent, (2) whether the request is opposed, (3) 20 whether the non-moving party would be prejudiced, (4) whether the 21 moving party was diligent in obtaining discovery within the 22 guidelines established by the court, (5) the foreseeability of the need 23 for additional discovery in light of the time allowed for discovery by 24 the district court, and (6) the likelihood that the discovery will lead 25 to relevant evidence. 26 United States, ex rel. William Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (1995) (citing 27 Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)). Of these six factors, the primary 28 factor is the fourth: whether the moving party was diligent in its attempts to complete discovery 1 To avoid confusion, pages cited here are those printed on the top right page of the document by the CM/ECF system. 1 in a timely manner. See Johnson, 975 F.2d at 609. If the moving party was not diligent, the 2 inquiry should end, and the request should be denied. Id. 3 The decision to reopen discovery involves an exercise of discretion. Hughes Aircraft Co. 4 v.United States, ex rel. William Schumer, 520 U.S. 939, 952 (1997). “Motions are more often 5 granted when the opposing party's actions caused delay or when the need to amend arises from 6 some unexpected or outside source.” Fed. Deposit Ins. Corp. as Receiver for Butte Cmty. Bank v. 7 Ching, No. 13-01710, 2016 WL 1756913, at *2 (E.D. Cal. May 3, 2016) (citing Hood v. Hartford 8 Life and Acc. Ins. Co., 567 F. Supp. 2d 1221, 1225–26 (E.D. Cal. 2008)). 9 III. ANALYSIS 10 Courts use a three-step inquiry in assessing diligence for the purposes of determining good 11 cause under Rule 16: 12 [T]o demonstrate diligence under Rule 16's “good cause” standard, 13 the movant may be required to show the following: (1) that she was 14 diligent in assisting the Court in creating a workable Rule 16 order; 15 (2) that her noncompliance with a Rule 16 deadline occurred or will 16 occur, notwithstanding her diligent efforts to comply, because of the 17 development of matters which could not have been reasonably 18 foreseen or anticipated at the time of the Rule 16 scheduling 19 conference; and (3) that she was diligent in seeking amendment of 20 the Rule 16 order, once it became apparent that she could not comply 21 with the order. 22 Grant v. United States, No. 11-00360, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011) 23 (quoting Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 24 Defendants fall short at each step of this inquiry. As to step one, defendants claim “[o]ne 25 of the fundamental issues here is that the Court ordered the extension of expert disclosures, 26 without extending the expert witness discovery window,” Am. Mot. Reopen at 5, which “made it 27 impossible to comply with the discovery deadlines,” id. It is true that expert disclosures were due 28 ten days before the close of expert discovery and supplemental and rebuttal expert witness 29 disclosures were due thirty days before the close of expert discovery. But this is a problem 30 attributable at least in part to defendants: The parties’ stipulation to extend expert witness 31 disclosure deadlines provides that the extension was made “at the request of the defendant.” Stip. 1 at 2, ECF No. 22 (emphasis added). Diligent counsel would have requested a later date for 2 completing all expert discovery. From this vantage point, while it is water under the bridge, the 3 parties’ filing did not meet the requirement to “assist[] the court in creating a workable Rule 16 4 Order.”2 Grant, 2011 WL 5554878, at *4 (quoting Jackson, 186 F.R.D. at 608). 5 Second, defendants point to no evidence that their noncompliance was due to 6 developments that could not have been reasonably foreseen or anticipated at the time of the Rule 7 16 scheduling conference. Without such evidence, the court assumes there is none. To the extent 8 defendants implicitly suggest they could not have foreseen former counsel’s seeming indifference 9 toward this case, the court disagrees. Defendants argue that former counsel’s discovery efforts 10 have been unsatisfactory since the inception of this case. See Am. Mot. Reopen at 5–7. 11 Nevertheless, defendants continued to retain former counsel until mid-August 2021, well after the 12 discovery deadlines had passed. Furthermore, defendants did not substitute new counsel until 13 November 2021, almost three months later. They “could have taken these deadlines into account 14 when deciding to replace . . . counsel,” Yeager, 2009 WL 1159175, at *2, but did not. 15 As to the third and final step in the inquiry, defendants were not diligent in seeking 16 amendment of the Rule 16 scheduling order once it became apparent they could not comply with 17 the order. Fact discovery ended on February 1, 2021. Expert disclosures were due by May 10, 18 2021. As noted, supplemental and rebuttal expert witnesses were due by May 30, 2021. And all 19 expert discovery was to be completed by April 30, 2021. Yet, defendants did not file their 20 amended motion to reopen discovery until November 23, 2021, after the final pretrial conference. 21 See generally Am. Mot. Reopen. This chronology does not reflect the required diligence. 22 Defendants’ argument to the contrary is unpersuasive. Defendants claim they “should not 23 have to suffer the prejudice of having a counsel who failed to conduct discovery.” Id. at 7. The 24 court disagrees. Defendants are “ultimately responsible for the acts and omissions of the 25 ///// 2 Defendants emphasize that previous counsel missed several deadlines, implicitly assuming previous counsel would have honored an extended deadline in this respect while disregarding several other deadlines in this case. The record as a whole does not support such an assumption. 1 representatives [they] voluntarily choose[]; [they] cannot now avoid their consequences.” 2 Yeager, 2009 WL 1159175, at *2 (citing Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962)). 3 The court acknowledges the limited discovery obtained by former counsel and the 4 difficult position in which it has left defendants. Reopening discovery could well lead to the 5 identification of relevant evidence. But the primary factor in determining whether good cause 6 exists to reopen discovery is whether the moving party was diligent in its attempts to complete 7 discovery in a timely manner. See Johnson, 975 F.2d at 609. If the moving party was not 8 diligent, the inquiry should end, and the request should be denied. Id. Because the record here 9 demonstrates a lack of diligence, defendants have not shown good cause to reopen discovery. 10 IV. CONCLUSION 11 For the foregoing reasons, the court denies defendants’ motion to reopen discovery. 12 This order resolves ECF No. 36. 13 IT IS SO ORDERED. 14 DATED: January 25, 2022.