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Brinckerhoff v. Town of Paradise

November 18, 2010



On November 4, 2010, the parties, by and through their counsel, were heard in connection with plaintiff Brinckerhoff's amended motion to compel production of documents and for sanctions, and defendant Town of Paradise's ("Town") motion to compel Rule 26 disclosures, for protective orders, and for sanctions. Alden Knisbacher appeared on behalf of plaintiff. Douglas Thorn appeared for defendant. After hearing, the court issues the following order.


Plaintiff filed the instant action on January 31, 2009, against the Town for employment discrimination after she was released from her probationary employment with the Town's fire department. Even though the Town has a volunteer fire department, these firefighters enjoy various benefits and some pay as well as protection under Title VII, FEHA, and the town's policies. Plaintiff was a volunteer firefighter who started employment in October 2001 until October 25, 2006 when she was appointed to a full time civil service position for twelve months probationary status. Plaintiff's probation was extended until January 15, 2009 because she took off periods of work for medical and personal reasons. Plaintiff was terminated from probation on January 12, 2009. She claims her probation was extended in order to discriminate against her because of her disability based on a back injury. Plaintiff alleges a hostile work environment under Title VII and state law (Cal. FEHA), gender discrimination (Title VII and Cal. FEHA), disability discrimination (ADA and Cal. FEHA), retaliation (Title VII), wrongful termination (Cal. FEHA and Cal. Govt. Code § 910), and failure to prevent discrimination (Cal. FEHA). Plaintiff seeks damages and injunctive relief including reinstatement.


It must be noted that the parties made review of these motions very difficult for the undersigned in submitting more than one joint statement and failing to cooperate in drafting and submitting the joint statement. From failing to include a table of contents to submitting multiple copies of the same document with the order of contents switched around, to filing numerous extraneous pleadings, both parties have exhibited unprofessional conduct which is unacceptable. In future, the court will decline to hear any discovery matter where the Federal and Local Rules are not strictly followed.


Defendant's motion seeks to compel Rule 26 disclosures. It also seeks to impose certain protective orders.

A. Rule 26 Disclosures

Defendant claims that plaintiff's amended disclosure, as with the first disclosure, did not include proper identification of witnesses to support her claims, including the failure to provide addresses and phone numbers. Defendant also contends that plaintiff failed to disclose which claim is linked to the individual disclosed.

Rule 26 of the Federal Rules of Civil Procedure requires that initial disclosures contain the following information:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; ...

Fed. R. Civ. P. 26(a)(1)(A)(I).

Pursuant to this rule, plaintiff certainly should have provided the addresses and phone numbers of potential witnesses to the extent known.

In regard to information held by the individuals disclosed, plaintiff has sufficiently described the discoverable information pertaining to each named individual. Thorn Supp. Decl., Ex. B (dkt. # 29). Any information not provided by plaintiff as part of her initial disclosures may be obtained by traditional discovery methods. As alluded to by the term "initial," this disclosure is only the information known by the party at an early point in the case before formal discovery begins. As explained at the hearing, Rule 26 disclosures should not be amended throughout the case unless information becomes available later and would have been subject to the initial disclosure requirement. Rule 26 is intended for disclosure of information that is not produced through formal discovery, but becomes separately known to a party.*fn1

Plaintiff shall supplement her amended disclosures with addresses and phone numbers to the extent known. Defendant's motion in regard to the content of the Rule 26 disclosures is denied in all other respects.

B. Proposed Protective Orders

Defendant requests the following protective orders: (1) prohibit plaintiff's counsel from annoying, embarrassing, or harassing defendant and witnesses;*fn2 (2) prohibit plaintiff from using evidence which has not been disclosed under Rule 26(a); (3) prohibit non-party witnesses who have not been deposed from attending deposition proceedings; and (4) require that all discovery take place in the town of Paradise unless otherwise stipulated or ordered.*fn3

1. Prohibition from Annoying, Harassing or Embarrassing Conduct by Plaintiff's Counsel at Depositions

The undersigned has reviewed the deposition transcript of defendant's witness, Captain Lawrie, which defendant has provided as an example of harassing conduct by plaintiff's counsel. Although counsel's actions were at times argumentative and inappropriate, they did not rise to the level of obstructing the proceedings. Therefore, defendant's motion is denied in this regard.

2. Use of Undisclosed Evidence

In regard to precluding use of undisclosed evidence, defendant is referring to an email from Mr. Thorn to Messrs. Knisbacher and Sorgen, dated August 21, 2010, which reflects his thoughts about the merits of the case, and states that Captains Hasek's and Lawrie's depositions will not "in any way support [plaintiff's] claims of discrimination," and "I think you will be very disappointed in what they have to say." Joint Statement Re: Plaintiff's Mot. to Compel, Ex. 7 (Dkt. # 24.) Thorn copied Captains Haskek and Lawrie on this email. Defendant now argues that plaintiff tried to use it at Lawrie's deposition without first disclosing it under Rule 26. Rule 26(a)(1)(A)(ii) requires initial disclosures of documents a party intends to use to support its claims or defenses, "unless the use would be solely for impeachment...." In this case, plaintiff attempted to use this email for impeachment purposes only. Therefore, plaintiff was not required to disclose it. Defendant's motion is denied as to this category.*fn4

3. Exclusion Order

The parties appear to have stipulated to an order barring a non-party witness from attending deposition proceedings when that witness has not yet been deposed. Defendant's motion is therefore denied as moot in regard to this request.

4. Place for Discovery

Defendant has requested that all discovery take place in Paradise because that town is struggling financially and must manage its resources in this case.

Rule 45 requires that non-party depositions take place within 100 miles from the deponent's residence.*fn5 Fed. R. Civ. P. 45(c)(3)(A)(ii). A party may be deposed in any location designated by the deposing party, ...

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