The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding through counsel. On January 20, 2012, defendants filed a motion to reopen discovery for the limited purpose of obtaining plaintiff's medical records from Atascadero State Hospital ("ASH"), which is noticed for hearing on February 23, 2012, before the undersigned. The court has determined that the matter shall be submitted upon the record and briefs on file and, accordingly, the date for hearing of this matter shall be vacated. Local Rule 230. Upon review of the motion and the documents in support and opposition, the court denies defendants' motion, as set forth below.
On May 5, 2008, the court issued a scheduling order which provided that discovery closed on August 22, 2008, and that dispositive motions were due by October 17, 2008. (Dkt. No. 47.) On January 20, 2009, due to the pending motion for summary judgment, the January 30, 2009 pretrial conference date and the April 28, 2009 jury trial date were vacated. On September 30, 2009, defendants' motion for summary judgment was denied.
On October 8, 2009, a further scheduling order issued, setting the pretrial conference for August 20, 2010, and jury trial for December 7, 2010. Pretrial statements were filed, and on October 28, 2010, plaintiff's July 19, 2010 motion to subpoena documents from ASH was granted. Plaintiff sought medical records related to injuries sustained on May 19, 2004, his diagnosis of Post Traumatic Stress Disorder ("PTSD"), and any records by Psychiatric Technician Chase Brewster, for plaintiff's use at trial to refresh witness Brewster's recollection. The December 7, 2010 jury trial date was continued to April 12, 2011. On December 10, 2010, plaintiff's Fourteenth Amendment claims were dismissed.
On January 21, 2011, the case was reassigned to a new district judge, and on February 11, 2011, a trial confirmation hearing was set for August 10, 2011, and jury trial was set for September 26, 2011. (Dkt. No. 116.)
On March 14, 2011, plaintiff, proceeding without counsel at the time, was granted thirty days to submit a subpoena duces tecum to ASH. On May 2, 2011, counsel was appointed to represent plaintiff. On June 27, 2011, trial confirmation hearing was set for August 10, 2011, and jury trial was set for September 26, 2011.
On July 8, 2011, plaintiff's counsel moved to reopen discovery and amend the pretrial order. Defendants opposed the motion, claiming it was untimely, that plaintiff was not diligent, and that the appointment of counsel was not a ground to reopen discovery. On July 27, 2011, the trial confirmation and jury trial dates were vacated. On August 5, 2011, plaintiff's motion to reopen discovery was granted for the limited purpose of taking the depositions of defendants. The parties were warned that the "court is not inclined to grant any further extensions for either party." (Dkt. No. 134 at 4.) Trial confirmation hearing was re-set for December 7, 2011, and the jury trial re-set for January 30, 2012.
On August 12, 2011, plaintiff filed an ex parte motion to conduct certain limited additional discovery to obtain documents prior to the defendants' depositions. Defendants objected to plaintiff's request. On August 24, 2011, plaintiff's request was partially granted, and the court narrowed the subpoena duces tecum directed to the CDCR, and imposed a protective order as to inmate Robinson's documents. (Dkt. No. 140 at 2.) In that order, defendants' counsel was reminded that plaintiff's counsel is entitled to all documents defendants have to support their case. Fed. R. Civ. P. 26(a)(1)(A)(i) & (ii). Both parties were reminded that they are under a continuing obligation to supplement discovery disclosures. Fed. R. Civ. P. 26(a)(1)(E). Both counsel were instructed to cooperate in the exchange of discovery so this stale case may be resolved expeditiously. (Dkt. No. 140 at 2.)
There was subsequent litigation to resolve production under the subpoena duces tecum directed to the CDCR, which resulted in the trial confirmation hearing being continued to March 21, 2012, and the jury trial to May 21, 2012. (Dkt. No. 148.) On December 19, 2011, counsel was advised that:
To be clear, now that both parties are represented by counsel, Rule 26 of the Federal Rules of Civil Procedure does apply to this action. Given the age of this case, counsel for all parties are directed to cooperate in discovery.
II. Legal Standards "The district court is given broad discretion in supervising the pretrial phase of litigation." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal quotation marks omitted). Rule 16(b) provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "The schedule may be modified 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 607). However, "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reason for seeking modification." Id. "If a party was not diligent, the inquiry should end." Id.
"In evaluating a motion to amend the pretrial order, a district court should consider four factors: (1) the degree of prejudice or surprise to the [non-moving party] if the order is modified; (2) the ability of the [non-moving party] to cure the prejudice; (3) any impact of modification on the orderly and efficient conduct of the trial; and (4) any willfulness or bad faith by the party ...