Weiss v. Perez

• Court: District Court, N.D. California
• Decided: March 1, 2022
• Docket: 5:22-cv-00641
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ELIZABETH WEISS, Case No. 22-cv-00641-BLF

8 Plaintiff, ORDER DENYING MOTION FOR 9 v. EXPEDITED DISCOVERY

10 STEPHEN PEREZ, et al., [Re: ECF No. 27] 11 Defendants.

12 13 Before the Court is Plaintiff Elizabeth Weiss’ motion for expedited discovery. ECF No. 27 14 (“Mot.”). Defendants, all San Jose State administrators, oppose the motion on several grounds. 15 ECF No. 40 (“Opp.”). Defendants contend that discovery is not warranted (1) until the Court rules 16 on their motion to dismiss (which they say should be granted without leave to amend, negating the 17 need for discovery); (2) because Weiss’ alleged irreparable injury—inability to access the Native 18 American remains after their upcoming repatriation—is of her own doing due to her delay in 19 pursuing the relief sought in this lawsuit; and (3) because the discovery Weiss seeks is unduly 20 burdensome and expensive in the short period of time before the motion for preliminary injunction 21 is heard. Id. The Court need not reach the first two arguments because it agrees with the third 22 argument. 23 Federal Rule of Procedure 26(d) provides that a party “may not seek discovery from any 24 source” prior to conducting the discovery conference required by Rule 26(f), which takes place no 25 later than 21 days before the initial case management conference. “Courts within the Ninth Circuit 26 generally use the ‘good cause’ standard to determine whether to permit discovery prior to a Rule 27 26(f) conference.” Apple Inc. v. Samsung Elecs. Co., 2011 WL 1938154, at *1 (N.D. Cal. May 1 the administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. 2 Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Factors courts consider include 3 whether a preliminary injunction is pending, the breadth of the discovery requests, the purpose for 4 || requesting the expedited discovery, the burden on the defendants to comply with the requests, and 5 how far in advance of the typical discovery process the request was made. American LegalNet, 6 || Inc. v. Davis, 673 F. Supp. 2d 1063, 1067 (C.D. Cal. 2009). 7 The Court finds that these factors weigh against expedited discovery here. Weiss seeks 8 (1) three depositions of Defendants Walt Jacobs, Roberto Gonzales, and Charlotte Sunseri; and 9 (2) materials responsive to five requests for production. See Mot., Exs. 1-4. Weiss characterizes 10 || this discovery as “narrow and specific,” id. at 5, but the Court disagrees given the procedural 11 posture of this case. Defendants cannot be expected to search for, collect, and review a potentially 12 || expansive universe of documents and other media and defend three depositions in only a few short 13 weeks. Even if that discovery did occur, use of any of its fruits would require Weiss to withdraw 14 || her already-filed motion for a preliminary injunction and incorporate any new evidence and 15 argument into revised and refiled motion, as no new evidence may be cited in a reply brief. See a 16 Rivera v. Saul Chevrolet, Inc., 2017 WL 3267540, at *6 (N.D. Cal. Jul. 31, 2017); cf: Interserve, 3 17 || Inc. v. Fusion Garage PTE, Ltd., 2010 WL 143665, at *2 (N.D. Cal. Jan. 7, 2010) (“Expedited 18 || discovery will allow plaintiff to determine whether to seek an early injunction.”). This could not 19 || be accomplished prior to the June 2022 repatriation of the Native American remains at issue in this 20 || case, and certainly not on the parties’ stipulated expedited schedule that the Court just yesterday 21 approved and accommodated. See ECF No. 39. 22 Accordingly, Weiss’ motion for expedited discovery is DENIED. 23 IT IS SO ORDERED. 24 25 |] Dated: March 1, 2022 | y han en 26 M. BETH LABSON FREEMAN 27 United States District Judge 28