1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER FONG, et al., Case No. 2:22-cv-01291-DC-CSK 12 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION 13 v. TO COMPEL 14 U.S. BANCORP, et al., (ECF No. 80) 15 Defendants. 16 17 Pending before the Court is Plaintiffs Peter Fong and Sut Fong’s motion to 18 compel discovery responses.1 (ECF No. 80). A hearing was held via Zoom on December 19 16, 2025. Attorney Jason Toji Calabro appeared on behalf of Plaintiffs. Attorneys Karin 20 Bohmholdt and Sam Payne appeared on behalf of Defendants U.S. Bancorp and U.S. 21 Bank National Association. For the reasons that follow, the Court GRANTS IN PART and 22 DENIES IN PART Plaintiffs’ motion to compel. 23 I. LEGAL STANDARDS 24 “Parties may obtain discovery regarding any nonprivileged matter that is relevant 25 to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. 26
27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, and Local Rule 302(c)(1). 28 1 P. 26(b)(1). “[B]road discretion is vested in the trial court to permit or deny discovery.” 2 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 3 A party may generally seek discovery from any source after the parties confer as 4 required by Rule 26(f). See Fed. R. Civ. P. 26(d)(1). The parties must hold their Rule 5 26(f) conference “as soon as practicable—and in any event at least 21 days before a 6 scheduling conference is to be held or a scheduling order is due under Rule 16(b).” Fed. 7 R. Civ. P. 26(f)(1). In addition, “a party must, without awaiting a discovery request, 8 provide to the other parties” its Initial Disclosures under Rule 26(a)(1)(A). 9 A party may move to compel discovery if the movant has in good faith conferred 10 with the party opposing discovery to obtain the requested discovery without the court's 11 intervention. See Fed. R. Civ. P. 37(a)(1); E.D. Cal. L.R. 251. This Court’s standing 12 orders further require that conferring regarding discovery disputes must be done through 13 communication that occurs in-person, by phone, or by video; written communication 14 alone does not satisfy the requirement to confer where all parties raising the discovery 15 matter are represented by counsel. 16 The moving party bears the burden to “inform the Court which discovery requests 17 are the subject of the motion to compel, and, for each disputed response, why the 18 information sought is relevant and why the responding party's objections are not 19 meritorious.” Adams v. Yates, 2013 WL 5924983, at *1 (E.D. Cal. Nov. 1, 2013). Local 20 Rule 251 governs motions to compel and requires the parties to confer and attempt to 21 resolve their discovery differences. If there has been “a complete and total failure to 22 respond to a discovery request or order,” the moving party may bring its motion on 23 fourteen (14) days’ notice and the requirement for a Joint Statement re Discovery 24 Disagreement is excused. E.D. Cal. L.R. 251(e). 25 “A district court has wide discretion in controlling discovery.” Jeff D. v. Otter, 643 26 F.3d 278, 289 (9th Cir. 2011) (quoting Little v. City of Seattle, 863 F.2d 681, 685 (9th 27 Cir.1988)). 28 / / / 1 II. DISCUSSION 2 Plaintiffs move to compel Defendants to substantively respond to their 3 interrogatories and requests for production of documents (RFPs) served on September 4 17, 2025, where Defendants’ responses were limited to objections. Defendants oppose 5 Plaintiffs’ motion to compel, arguing that discovery has not begun where there is no 6 operative complaint and because the district judge “has ruled that discovery should not 7 yet move forward given its order requiring Plaintiffs to seek leave to amend.” Jt Stmt re: 8 Disco. Disagreement at 9 (ECF No. 80-1). Defendants reason that because Plaintiffs’ 9 motion to file a Second Amended Complaint is pending, there is no operative complaint. 10 First, the Court concludes that discovery is not stayed in this case. Defendants 11 have not filed a formal motion to stay discovery and no such order has issued staying 12 discovery. See Docket. Despite Defendants’ arguments to the contrary, Judge Coggins’ 13 September 8, 2025 Minute Order does not address discovery, which is significant 14 because Defendants raised the discovery issue in their Rule 26(f) Joint Status Report. 15 (See ECF Nos. 70, 71). 16 What is clear from the September 8, 2025 Minute Order is that the parties must 17 file formal motions for court action, and not make informal requests for court action in 18 documents like a status report, which is what both sides unsuccessfully attempted to do 19 in their Joint Status Report. (ECF Nos. 70, 71.) Judge Coggins ordered Plaintiffs to “file 20 either a motion seeking leave to file a second amended complaint or a notice that they 21 no longer intend to do so.” (ECF No. 71.) 22 Second, the Court concludes that discovery is appropriate at this stage under 23 Rule 26(d)(1) because the parties have conducted their Rule 26(f) conference. Fed. R. 24 Civ. P. 26(d)(1). On August 19, 2025, Judge Coggins issued a Minute Order making 25 clear that the case was appropriate for scheduling, ordering the parties to file a Joint 26 Status Report, and requiring the parties to inform the court of the parties’ preference 27 regarding attendance at a Scheduling Conference or whether a Scheduling Order should 28 issue on the papers. (ECF No. 68.) In addition, Defendants provide no legal authority for 1 their argument that there is no operative complaint and the Court rejects this argument. 2 Until Plaintiffs’ motion to amend the complaint to file a Second Amended Complaint 3 (SAC) is decided, the operative complaint is the First Amended Complaint (FAC). (ECF 4 No. 69.) As confirmed at the hearing, Defendants have not filed a response to the FAC, 5 which was filed on August 21, 2025 after the district court granted the parties’ joint 6 stipulation to permit Plaintiffs to file a FAC. See 8/19/2025 Minute Order (ECF No. 68); 7 FAC (ECF No. 69); Docket. Defendants explained that the parties agreed that 8 Defendants’ response to the FAC was not due because Plaintiffs filed a motion to amend 9 the FAC on September 11, 2025, and this motion is pending. Plaintiffs did not express 10 any disagreement with Defendants’ explanation. At the hearing, the Court warned the 11 parties that the docket and record before the Court did not reflect any court order or 12 agreement to extend the deadline for Defendants’ response to the FAC, and noted that a 13 court order may be required to extend the deadline. See Fed. R. Civ. P. 15(a)(3). 14 Finally, though discovery is open and has not been stayed, the general order of 15 discovery is for the parties to serve their Rule 26(a)(1) Initial Disclosures first before 16 serving and responding to any discovery requests. Plaintiffs failed to provide justification 17 to deviate from this procedure, and make arguments that are inconsistent with each 18 other. See Joint Stmt re: Disco. Disagreement at 5 n.3 (arguing initial disclosures are not 19 yet due). The Court does not find any justification to deviate from the standard practice 20 and exercises its discretion to control discovery and manage the pretrial phase of 21 litigation. See Johnson v.
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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 PETER FONG, et al., Case No. 2:22-cv-01291-DC-CSK 12 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION 13 v. TO COMPEL 14 U.S. BANCORP, et al., (ECF No. 80) 15 Defendants. 16 17 Pending before the Court is Plaintiffs Peter Fong and Sut Fong’s motion to 18 compel discovery responses.1 (ECF No. 80). A hearing was held via Zoom on December 19 16, 2025. Attorney Jason Toji Calabro appeared on behalf of Plaintiffs. Attorneys Karin 20 Bohmholdt and Sam Payne appeared on behalf of Defendants U.S. Bancorp and U.S. 21 Bank National Association. For the reasons that follow, the Court GRANTS IN PART and 22 DENIES IN PART Plaintiffs’ motion to compel. 23 I. LEGAL STANDARDS 24 “Parties may obtain discovery regarding any nonprivileged matter that is relevant 25 to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. 26
27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, and Local Rule 302(c)(1). 28 1 P. 26(b)(1). “[B]road discretion is vested in the trial court to permit or deny discovery.” 2 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 3 A party may generally seek discovery from any source after the parties confer as 4 required by Rule 26(f). See Fed. R. Civ. P. 26(d)(1). The parties must hold their Rule 5 26(f) conference “as soon as practicable—and in any event at least 21 days before a 6 scheduling conference is to be held or a scheduling order is due under Rule 16(b).” Fed. 7 R. Civ. P. 26(f)(1). In addition, “a party must, without awaiting a discovery request, 8 provide to the other parties” its Initial Disclosures under Rule 26(a)(1)(A). 9 A party may move to compel discovery if the movant has in good faith conferred 10 with the party opposing discovery to obtain the requested discovery without the court's 11 intervention. See Fed. R. Civ. P. 37(a)(1); E.D. Cal. L.R. 251. This Court’s standing 12 orders further require that conferring regarding discovery disputes must be done through 13 communication that occurs in-person, by phone, or by video; written communication 14 alone does not satisfy the requirement to confer where all parties raising the discovery 15 matter are represented by counsel. 16 The moving party bears the burden to “inform the Court which discovery requests 17 are the subject of the motion to compel, and, for each disputed response, why the 18 information sought is relevant and why the responding party's objections are not 19 meritorious.” Adams v. Yates, 2013 WL 5924983, at *1 (E.D. Cal. Nov. 1, 2013). Local 20 Rule 251 governs motions to compel and requires the parties to confer and attempt to 21 resolve their discovery differences. If there has been “a complete and total failure to 22 respond to a discovery request or order,” the moving party may bring its motion on 23 fourteen (14) days’ notice and the requirement for a Joint Statement re Discovery 24 Disagreement is excused. E.D. Cal. L.R. 251(e). 25 “A district court has wide discretion in controlling discovery.” Jeff D. v. Otter, 643 26 F.3d 278, 289 (9th Cir. 2011) (quoting Little v. City of Seattle, 863 F.2d 681, 685 (9th 27 Cir.1988)). 28 / / / 1 II. DISCUSSION 2 Plaintiffs move to compel Defendants to substantively respond to their 3 interrogatories and requests for production of documents (RFPs) served on September 4 17, 2025, where Defendants’ responses were limited to objections. Defendants oppose 5 Plaintiffs’ motion to compel, arguing that discovery has not begun where there is no 6 operative complaint and because the district judge “has ruled that discovery should not 7 yet move forward given its order requiring Plaintiffs to seek leave to amend.” Jt Stmt re: 8 Disco. Disagreement at 9 (ECF No. 80-1). Defendants reason that because Plaintiffs’ 9 motion to file a Second Amended Complaint is pending, there is no operative complaint. 10 First, the Court concludes that discovery is not stayed in this case. Defendants 11 have not filed a formal motion to stay discovery and no such order has issued staying 12 discovery. See Docket. Despite Defendants’ arguments to the contrary, Judge Coggins’ 13 September 8, 2025 Minute Order does not address discovery, which is significant 14 because Defendants raised the discovery issue in their Rule 26(f) Joint Status Report. 15 (See ECF Nos. 70, 71). 16 What is clear from the September 8, 2025 Minute Order is that the parties must 17 file formal motions for court action, and not make informal requests for court action in 18 documents like a status report, which is what both sides unsuccessfully attempted to do 19 in their Joint Status Report. (ECF Nos. 70, 71.) Judge Coggins ordered Plaintiffs to “file 20 either a motion seeking leave to file a second amended complaint or a notice that they 21 no longer intend to do so.” (ECF No. 71.) 22 Second, the Court concludes that discovery is appropriate at this stage under 23 Rule 26(d)(1) because the parties have conducted their Rule 26(f) conference. Fed. R. 24 Civ. P. 26(d)(1). On August 19, 2025, Judge Coggins issued a Minute Order making 25 clear that the case was appropriate for scheduling, ordering the parties to file a Joint 26 Status Report, and requiring the parties to inform the court of the parties’ preference 27 regarding attendance at a Scheduling Conference or whether a Scheduling Order should 28 issue on the papers. (ECF No. 68.) In addition, Defendants provide no legal authority for 1 their argument that there is no operative complaint and the Court rejects this argument. 2 Until Plaintiffs’ motion to amend the complaint to file a Second Amended Complaint 3 (SAC) is decided, the operative complaint is the First Amended Complaint (FAC). (ECF 4 No. 69.) As confirmed at the hearing, Defendants have not filed a response to the FAC, 5 which was filed on August 21, 2025 after the district court granted the parties’ joint 6 stipulation to permit Plaintiffs to file a FAC. See 8/19/2025 Minute Order (ECF No. 68); 7 FAC (ECF No. 69); Docket. Defendants explained that the parties agreed that 8 Defendants’ response to the FAC was not due because Plaintiffs filed a motion to amend 9 the FAC on September 11, 2025, and this motion is pending. Plaintiffs did not express 10 any disagreement with Defendants’ explanation. At the hearing, the Court warned the 11 parties that the docket and record before the Court did not reflect any court order or 12 agreement to extend the deadline for Defendants’ response to the FAC, and noted that a 13 court order may be required to extend the deadline. See Fed. R. Civ. P. 15(a)(3). 14 Finally, though discovery is open and has not been stayed, the general order of 15 discovery is for the parties to serve their Rule 26(a)(1) Initial Disclosures first before 16 serving and responding to any discovery requests. Plaintiffs failed to provide justification 17 to deviate from this procedure, and make arguments that are inconsistent with each 18 other. See Joint Stmt re: Disco. Disagreement at 5 n.3 (arguing initial disclosures are not 19 yet due). The Court does not find any justification to deviate from the standard practice 20 and exercises its discretion to control discovery and manage the pretrial phase of 21 litigation. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). 22 The parties will be required to exchange their Initial Disclosures before serving or 23 responding to written discovery requests. 24 Discovery is not currently stayed. If Defendants seek to stay discovery, they must 25 file a formal motion. The Court notes that representations that a motion to dismiss the 26 entire FAC or the entire SAC will be filed at some point in the future are not sufficient to 27 justify staying discovery. Filing such a motion does not relieve the parties of their 28 obligations to comply with this discovery order unless an order issues staying discovery 1 || or continuing the deadlines set in this order. 2 | Ill. CONCLUSION 3 In conclusion, IT |S HEREBY ORDERED that: 4 1. Plaintiffs’ motion to compel (ECF No. 80) is GRANTED IN PART and 5 DENIED IN PART. 6 2. Parties must exchange their Initial Disclosures within 21 days of this order; 7 3. Within 30 days after Initial Disclosures are exchanged, Defendants shall 8 provide further responses besides objections to Plaintiffs’ interrogatories 9 and RFPs. 10 4. Within 60 days of this order, the parties shall file a brief Joint Status Report 11 re: Discovery Update providing an update on the parties’ compliance with 12 this discovery order. 13 14 | Dated: December 17, 2025 C iy S \U 15 CHI SOO KIM 16 UNITED STATES MAGISTRATE JUDGE 17 18 || csk/ fong1291.22 19 20 21 22 23 24 25 26 27 28