----oo0oo---- WENDY GREENE, No. 2:23-cv-00082 WBS DMC Plaintiff, v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO MODIFY CORRECTIONS AND REHABILITATION, et al., Defendants. ----oo0oo---- Plaintiff Wendy Greene, individually and in her capacity as successor in interest to the Estate of Michael Hastey, brought this action under 42 U.S.C. § 1983 and California law against defendants California Department of Corrections and Rehabilitation (“CDCR”) and various employees at the C Yard High Desert State Prison, where Hastey was murdered by fellow inmates. (See Complaint (Docket No. 1).) Plaintiff now seeks to modify the scheduling order on the grounds that the current deadlines cannot be met due to discovery motions which are still pending before a magistrate judge. (Docket No. 103.) Defendants argue in opposition that the modification is not supported by good cause and would prejudice their case. (Docket No. 104.)1 I. Background Discovery in this matter commenced June 1, 2023, when the parties exchanged initial disclosures. (Declaration of Andrew J. Kopke (“Kopke Decl.”) (Docket No. 103-1) ¶ 2); Declaration of Jennifer Burns (“Burns Decl.”) (Docket No. 104-1) ¶ 2.) Plaintiff served her first requests for production (“RFPs”) on July 14, 2023. (Kopke Decl. ¶ 3; Burns Decl. ¶ 3.) Between September and December 2023, the parties met and conferred, plaintiff served amended RFPs, and defendants served amended and supplemental responses. (Kopke Decl. ¶ 5.) Following this period, plaintiff subpoenaed the Office of the Inspector General (“OIG”) and thereafter identified and described documents and information in a privilege log which was disclosed to defendant CDCR. (Id. ¶ 8.) Defendant CDCR maintained that the discovery requested in the RFPs did not exist. (Id. ¶ 7.) Plaintiff filed a motion to compel on August 2, 2024. (Docket No. 48.) After a hearing, the Magistrate Judge denied the motion. (Docket No. 73.) Plaintiff then filed a motion for reconsideration on March 12, 2025, which is currently pending. (Docket No. 74.) Defendants then filed a motion for a protective order on June 2, 2025, which is also currently pending. (Docket No. 92.) Both motions concern discovery plaintiff has been seeking since the outset of this case, including its RFPs and the 1 Because the court finds it would not be assisted by oral argument, the motion is decided on the papers pursuant to Local Rule 230(g). The scheduled October 27, 2025 hearing on the motion is hereby VACATED. documents produced pursuant to the OIG investigation. (Docket Nos. 74, 92.) The Magistrate Judge held a hearing on the motions on August 4, 2025, and instructed the parties to meet and confer and submit a joint letter on the discovery dispute. (Kopke Decl. ¶ 13.) In their letter, the parties agreed that the plaintiff’s more recently submitted third set of RFPs -- which request much of the same information as the first RFPs -- were now the focus of their dispute. (Docket No. 102 at 1.) In the instant motion, plaintiff argues chiefly that since she “has been seeking the discovery at issue since the very outset of the discovery process, her inability to meet the current discovery deadlines cannot be attributed to a lack of diligence.” (Docket No. 105 at 3.) II. Discussion “A schedule may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Fed. R. Civ. P. 16, Advisory Committee’s Notes (1983 Amendment) (directing courts to consider whether a deadline “cannot reasonably be met despite the diligence of the party seeking the extension”). The court’s scheduling order issued on April 24, 2025, sets, inter alia, the discovery deadline as November 19, 2025; the dispositive motion deadline as March 19, 2026; the pretrial conference as June 15, 2026; and the trial date as September 22, 2026. (See Docket No. 86.) Plaintiff seeks to extend all deadlines by six months. (Docket No. 103-2.) Defendants argue the extension is not supported by good cause because plaintiff “has not actively pursued discovery, including serving any new discovery requests or taking depositions for over a year,” despite having “asked for and received six other extensions of the discovery cutoff.” (Docket No. 104 at 2.) Defendants further argue that plaintiff’s “lack of diligence has and will continue to prejudice the CDCR Defendant’s ability to timely and efficiently present their defenses.” (Id. (citation modified).) Much of defendants’ argument concerning diligence appears to focus on the merits of plaintiff’s underlying discovery requests. Defendants first state that denial of plaintiff’s motion to compel “amounted to a strong repudiation” of the argument that the CDCR was withholding documents. (Id. at 6. (citation modified).) Defendants then argue more generally that plaintiff “is focusing on serving and litigating irrelevant and disproportionate written discovery, which is extremely costly,” and that the protracted discovery dispute regarding the first RFPs imputes a lack of diligence to plaintiff, who seems to have been doggedly seeking the same information for two years while additional discovery requests have remained scant. (Id.) Defendants may be correct that plaintiff’s singular focus on this line of discovery is not an auspicious litigation strategy, but that criticism does not go to the question of whether plaintiff has been diligent in seeking it. While there is no uniform definition of diligence, courts in this circuit have suggested the term relates primarily to a party’s timeliness in response to available information. See, e.g., Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996) (denying motion because of plaintiff’s failure to explain what new information led them to file, and why they waited seven months to do so after receiving it); Jackson v. Laureate, Inc., 186 F.R.D. 604, 609 (E.D. Cal. 1999) (“Plaintiff fails to demonstrate that her inability to comply with the Rule 16 Scheduling Order results from her having become aware of information that she could not have reasonably foreseen at the time the order became final.” (citation modified)). In Johnson, for example, diligence was not found because the movant “failed to heed clear and repeated signals” of his failure to “prosecute the case properly,” and “that his attorneys failed to pay attention to the responses they received” when filing their pleadings. 975 F. 2d at 609-610. Other factors in the diligence inquiry may include “whether the movant was diligent in helping the court to create a workable Rule 16 Order; whether matters that were not, and could not have been, foreseeable at the time of the scheduling conference caused the need for amendment; and whether the movant was diligent in seeking amendment once the need to amend became apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 404 (E.D. Cal 2018) (internal quotation marks and citation omitted). There is nothing in plaintiff’s activity up to this point suggesting the kind of delinquency that precludes a finding of diligence. Plaintiff does not appear to be ignoring new knowledge as it becomes available or failing to timely respond to information. In her reply, she specifies unforeseen circumstances that prompted prior modifications and delays, including the addition of new defendan
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----oo0oo---- WENDY GREENE, No. 2:23-cv-00082 WBS DMC Plaintiff, v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO MODIFY CORRECTIONS AND REHABILITATION, et al., Defendants. ----oo0oo---- Plaintiff Wendy Greene, individually and in her capacity as successor in interest to the Estate of Michael Hastey, brought this action under 42 U.S.C. § 1983 and California law against defendants California Department of Corrections and Rehabilitation (“CDCR”) and various employees at the C Yard High Desert State Prison, where Hastey was murdered by fellow inmates. (See Complaint (Docket No. 1).) Plaintiff now seeks to modify the scheduling order on the grounds that the current deadlines cannot be met due to discovery motions which are still pending before a magistrate judge. (Docket No. 103.) Defendants argue in opposition that the modification is not supported by good cause and would prejudice their case. (Docket No. 104.)1 I. Background Discovery in this matter commenced June 1, 2023, when the parties exchanged initial disclosures. (Declaration of Andrew J. Kopke (“Kopke Decl.”) (Docket No. 103-1) ¶ 2); Declaration of Jennifer Burns (“Burns Decl.”) (Docket No. 104-1) ¶ 2.) Plaintiff served her first requests for production (“RFPs”) on July 14, 2023. (Kopke Decl. ¶ 3; Burns Decl. ¶ 3.) Between September and December 2023, the parties met and conferred, plaintiff served amended RFPs, and defendants served amended and supplemental responses. (Kopke Decl. ¶ 5.) Following this period, plaintiff subpoenaed the Office of the Inspector General (“OIG”) and thereafter identified and described documents and information in a privilege log which was disclosed to defendant CDCR. (Id. ¶ 8.) Defendant CDCR maintained that the discovery requested in the RFPs did not exist. (Id. ¶ 7.) Plaintiff filed a motion to compel on August 2, 2024. (Docket No. 48.) After a hearing, the Magistrate Judge denied the motion. (Docket No. 73.) Plaintiff then filed a motion for reconsideration on March 12, 2025, which is currently pending. (Docket No. 74.) Defendants then filed a motion for a protective order on June 2, 2025, which is also currently pending. (Docket No. 92.) Both motions concern discovery plaintiff has been seeking since the outset of this case, including its RFPs and the 1 Because the court finds it would not be assisted by oral argument, the motion is decided on the papers pursuant to Local Rule 230(g). The scheduled October 27, 2025 hearing on the motion is hereby VACATED. documents produced pursuant to the OIG investigation. (Docket Nos. 74, 92.) The Magistrate Judge held a hearing on the motions on August 4, 2025, and instructed the parties to meet and confer and submit a joint letter on the discovery dispute. (Kopke Decl. ¶ 13.) In their letter, the parties agreed that the plaintiff’s more recently submitted third set of RFPs -- which request much of the same information as the first RFPs -- were now the focus of their dispute. (Docket No. 102 at 1.) In the instant motion, plaintiff argues chiefly that since she “has been seeking the discovery at issue since the very outset of the discovery process, her inability to meet the current discovery deadlines cannot be attributed to a lack of diligence.” (Docket No. 105 at 3.) II. Discussion “A schedule may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Fed. R. Civ. P. 16, Advisory Committee’s Notes (1983 Amendment) (directing courts to consider whether a deadline “cannot reasonably be met despite the diligence of the party seeking the extension”). The court’s scheduling order issued on April 24, 2025, sets, inter alia, the discovery deadline as November 19, 2025; the dispositive motion deadline as March 19, 2026; the pretrial conference as June 15, 2026; and the trial date as September 22, 2026. (See Docket No. 86.) Plaintiff seeks to extend all deadlines by six months. (Docket No. 103-2.) Defendants argue the extension is not supported by good cause because plaintiff “has not actively pursued discovery, including serving any new discovery requests or taking depositions for over a year,” despite having “asked for and received six other extensions of the discovery cutoff.” (Docket No. 104 at 2.) Defendants further argue that plaintiff’s “lack of diligence has and will continue to prejudice the CDCR Defendant’s ability to timely and efficiently present their defenses.” (Id. (citation modified).) Much of defendants’ argument concerning diligence appears to focus on the merits of plaintiff’s underlying discovery requests. Defendants first state that denial of plaintiff’s motion to compel “amounted to a strong repudiation” of the argument that the CDCR was withholding documents. (Id. at 6. (citation modified).) Defendants then argue more generally that plaintiff “is focusing on serving and litigating irrelevant and disproportionate written discovery, which is extremely costly,” and that the protracted discovery dispute regarding the first RFPs imputes a lack of diligence to plaintiff, who seems to have been doggedly seeking the same information for two years while additional discovery requests have remained scant. (Id.) Defendants may be correct that plaintiff’s singular focus on this line of discovery is not an auspicious litigation strategy, but that criticism does not go to the question of whether plaintiff has been diligent in seeking it. While there is no uniform definition of diligence, courts in this circuit have suggested the term relates primarily to a party’s timeliness in response to available information. See, e.g., Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996) (denying motion because of plaintiff’s failure to explain what new information led them to file, and why they waited seven months to do so after receiving it); Jackson v. Laureate, Inc., 186 F.R.D. 604, 609 (E.D. Cal. 1999) (“Plaintiff fails to demonstrate that her inability to comply with the Rule 16 Scheduling Order results from her having become aware of information that she could not have reasonably foreseen at the time the order became final.” (citation modified)). In Johnson, for example, diligence was not found because the movant “failed to heed clear and repeated signals” of his failure to “prosecute the case properly,” and “that his attorneys failed to pay attention to the responses they received” when filing their pleadings. 975 F. 2d at 609-610. Other factors in the diligence inquiry may include “whether the movant was diligent in helping the court to create a workable Rule 16 Order; whether matters that were not, and could not have been, foreseeable at the time of the scheduling conference caused the need for amendment; and whether the movant was diligent in seeking amendment once the need to amend became apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 404 (E.D. Cal 2018) (internal quotation marks and citation omitted). There is nothing in plaintiff’s activity up to this point suggesting the kind of delinquency that precludes a finding of diligence. Plaintiff does not appear to be ignoring new knowledge as it becomes available or failing to timely respond to information. In her reply, she specifies unforeseen circumstances that prompted prior modifications and delays, including the addition of new defendants, the continual guidance from the Magistrate Judge, and the responses to an amended complaint. (See Docket No. 105 at 5-6.) Plaintiff’s responsive and persistent engagement in the ongoing discovery dispute at issue in this motion suggests she has been attentive to new information and timely pursued discovery in light of what she knows. Defendants question the viability of plaintiff’s strategy, but the issue of whether a party has pursued their case wisely is distinct from the issue of whether they have pursued it diligently. Cf. Wong v. Regents of University of California, 410 F. 3d 1052, 1062 (9th Cir. 2005) (denying modification because of plaintiff’s failure to act “on a more timely basis” in light of his awareness). As part of their criticism of plaintiff’s strategy, defendants emphasize that this is the seventh request for modification. (See Docket No. 104 at 8-9.) But plaintiff is not solely responsible for that number; a review of the docket indicates that all previous modifications to the scheduling order were jointly requested, with defendants disputing the fact discovery extension in only one instance. (See Docket Nos. 28, 43, 52, 57, 71, 83.) Defendants further argue that modifying the scheduling order would prejudice their case. (Docket No. 104 at 9.) But ee EI IEE III III EIDE EEE ESE I ON
neither evidence nor authority is offered to support this argument. Moreover, “although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of inquiry is upon the moving party’s reasons for seeking modification.” Johnson, 975 F. 2d at 604. Because the court finds that the plaintiff has acted diligently and that there will not be prejudice to defendants, the court will grant plaintiff’s motion. IT IS THEREFORE ORDERED that plaintiff’s motion to modify the scheduling order (Docket No. 103) be, and the same hereby is, GRANTED. The scheduling order (Docket No. 86) is modified as follows: 1. Fact discovery shall be completed by May 19, 2026. 2. Experts and expert reports shall be disclosed by June 18, 2026. 3. Rebuttal experts shall be disclosed by July 21, 2026. 4. Expert discovery shall be completed by August 20, 2026. 5. All motions, except motions for continuances, temporary restraining orders, or other emergency applications, shall be filed by September 21, 2026. 6. The pretrial conference is set for December 14, 2026, at 1:30 p.m. 7. The jury trial is set for February 17, 2027, at 9:00 a.m. Dated: October 21, 2025 allem Hh ah be WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE