IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 16, 2011
STEWART MANAGO, PLAINTIFF,
BRAD WILLIAMS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff seeks reconsideration of this court's order filed November 30, 2011. In addition, defense counsel seeks an order directing plaintiff to cease corresponding with counsel without court preauthorization.
RECONSIDERATION OF NOVEMBER 30, 2011 ORDER
Plaintiff seeks reconsideration of this court's recent ruling which, in pertinent part, denied plaintiff's request for sanctions and additional discovery materials, with the exception of two audiotapes ordered disclosed and any related confidential material. (Dkt. No. 199.) Plaintiff again contends that the recent supplemental production of documents by Shanan Hewitt, defense counsel for all defendants except defendant Brockett, demonstrates that Ms. Hewitt misled the court and plaintiff in her prior representations that she had produced all relevant discovery. The court previously rejected this contention on the ground that the Federal Rules of Civil Procedure expressly provide for the supplemental production of discovery that was previously and inadvertently overlooked.
Discovery closed in this action on February 24, 2011, although limited extensions of time were accorded for specific matters. Dispositive motions are now pending. Defendants filed two motions for summary judgment (the motion on behalf of the majority of the defendants was filed by Ms. Hewitt on October 28, 2011); and plaintiff filed oppositions to each motion. In the court's last order, an extension of time was granted to enable plaintiff to listen to the subject audiotapes and to review related confidential material, and for the filing of defendants' reply briefs; the court also granted plaintiff leave to file a surreply. With the exception of this limited evidence, ALL relevant discovery should have been disclosed by this date.
In support of his motion for reconsideration, plaintiff has attached a
copy of defendants' supplemental response, served on plaintiff on
October 20, 2011. That response includes language which indicates that
defendants have not yet completed discovery. (See Dkt. No. 204 at 19.)
While some of this language appears to be "boilerplate," additional
language appears specific to the supplemental disclosure.*fn1
None of these statements are appropriate at this
stage of the litigation. The language is confounding to the
undersigned, as well as plaintiff, who understandably remains
unconvinced that all relevant evidence has been disclosed.
Accordingly, the court will require Ms. Hewitt, and each of the
defendants she represents, to file declarations stating, under penalty
of perjury, that each defendant has produced all relevant evidence; in
addition, Ms. Hewitt shall inform the court whether defendants' motion
for summary judgment, which includes approximately 1000 pages of
exhibits, is based only upon evidence that has been previously
disclosed and produced to plaintiff. Defendant Brockett and her
counsel, Mark Kruger, will be required to do the same.
The undersigned takes seriously plaintiff's claims in this action; defendant Brockett's alleged misconduct apparently resulted in her dismissal, and also underscores the seriousness of the other defendants' alleged related conduct. This is a factually and legally complex case that has required extraordinary court involvement. Plaintiff proceeds without counsel (although he has been invited to request appointment of counsel (see Dkt. Nos. 155, 148, 124)), and is further disadvantaged by his incarceration and regimented access to pertinent documents. Plaintiff should not be further handicapped by discovery that trickles in, particularly in tandem with a disclaimer that there may still be additional relevant evidence. If there currently exists any additional relevant evidence, defendants shall disclose and produce such evidence to plaintiff, when defendants serve their statements of compliance and supporting declarations. See Fed. R. Civ. P. 11; Local Rule 110. Failure, at this time, to disclose all relevant evidence may result in a recommendation by the undersigned that any purportedly new evidence be excluded at trial, as well as other potential sanctions.
REQUEST FOR ORDER PRECLUDING CORRESPONDENCE
In a separate matter, Ms. Hewitt has filed a request that the court order plaintiff to cease corresponding with defense counsel without court preauthorization. In an affidavit supported by documentation, counsel states that plaintiff's correspondence includes accusations and threats such as the following:
I know criminal behavior when I observe, but I can assure you that, you will regret it in the long run. (Dkt. No. 202, Ex. 1, p. 1.)
You must remember when you do foul moves, it will come back on you. (Id., Ex. 2, p. 2.)
Plaintiff is informed that such communications are not authorized by the Federal Rules of Civil Procedure or Local Rules; moreover, they are sanctionable. Available sanctions include dismissal of the underlying action. See Fed. R. Civ. P. 11;*fn2 Local Rules 110,*fn3 183(a).*fn4
The court has previously admonished plaintiff to stop burdening the court with excessive filings. (See Dkt. No. 148.) Plaintiff is again admonished to refrain from filing such documents with the court, and is further admonished to stop sending correspondence to defense counsel. With this order, there should remain no further discovery disagreements, and hence no reason for correspondence among the parties. The extended deadlines for completing the briefing on defendants' pending motions for summary judgment have been set. Pending a decision of this court on those motions, there is no reason for plaintiff to further communicate with defense counsel, and no authority for any further court filing other than the authorized surreply. Plaintiff is informed that failure to abide by this directive may result in the imposition of appropriate sanctions.
For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Plaintiff's motion for reconsideration (Dkt. No. 204), is denied, subject to the following additional rulings:
a. Within twenty-one days after the filing date of this order, defense counsel shall each file a statement of compliance with this order, that contains the following:
1. A sworn declaration by each defense counsel, supported by the separate sworn declarations of each defendant whom counsel represents, that informs the court whether all defendants have produced all relevant evidence; in addition, defense counsel shall each inform the court whether their respective motions for summary judgment are based only upon evidence that has been previously disclosed and produced to plaintiff; and
2. Should there exist any additional relevant evidence that has not yet been disclosed to plaintiff, the evidence shall be produced to plaintiff in tandem with service of each counsel's statements and supporting declarations; if additional evidence is disclosed, defense counsel shall so inform the court, and provide a description of the newly disclosed evidence and the reasons for its late disclosure.
3. The request of defense counsel (Dkt. No. 202), for an order directing plaintiff to refrain from further communicating with counsel, is granted in part. Plaintiff is directed to refrain from sending any further correspondence to either defense counsel or any defendant. Plaintiff is also directed to refrain from filing further documents in this case, with the exception of his authorized surreply.