United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY (Doc. 39)
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiffs are the brothers of Rodolfo Medrano who was shot to death on May 29, 2011 by officers of the Kern County Sheriff's Office. (Doc. 21 at 2-3, 4) In their current motion, Plaintiffs seek to compel the depositions of the four officers who shot at the decedent. Plaintiffs argue that because counsel for Defendants failed to identify the shooters in a timely fashion they were not able to timely issue deposition notices to these individuals.
Defendants argue that the full and complete police reports were provided in September 2013 and that these reports identified the shooters. Despite this Plaintiffs never noticed any depositions and now the discovery period has lapsed.
For the reasons set forth below, the motion is DENIED.
I. Factual and Procedural History
In the first amended complaint, Plaintiffs allege their brother, Rodolfo Medrano, encountered Sheriff's officers on May 29, 2011. (Doc. 21 at 2-3) During this encounter, Plaintiffs allege that though their brother took no action to justify the use of force, the officers shot and killed him. Id. at 3. Plaintiffs proceed in this litigation only against the public entity only and, though Doe Defendants are named, no individual officer is named as a Defendant.
On March 13, 2013, the Court held a scheduling conference and issued an order setting forth the applicable case-related deadlines therein. (Docs. 25, 27) In particular, the Court ordered that all non-expert discovery be completed no later than February 28, 2014. (Doc. 27 at 3) Notably, this is the deadline requested by counsel in their joint scheduling conference statement. (Doc. 24 at 10) The scheduling order also read,
The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to dispose of this case. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent status conference.
The dates set in this Order are considered to be firm and will not be modified absent a showing of good cause even if the request to modify is made by stipulation. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.
Failure to comply with this order may result in the imposition of sanctions.
(Doc. 27 at 9, emphasis in the original)
On September 23, 2013, counsel filed their joint mid-discovery status report. (Doc. 31) Plaintiffs' counsel reported they had propounded written discovery and that they "Intend to complete all necessary discovery by the date in the Scheduling Order." Id. at 2. Notably, counsel reported no existing discovery disputes and described that "Both parties have timely exchanged Rule 26 initial disclosures." Id. at 2.
II. The joint statement
A. Plaintiffs' position
In the current motion, Plaintiffs' counsel contends that it was not until December 2013 that Defendants' counsel, Andrew Thomson, provided the names of the officers who shot at the decedent. (Doc. 40 at 2) Plaintiff's counsel, Ms. Terterov, asserts that after providing these names, Mr. Thomson "evaded the scheduling of a date and refused to act in good faith in providing potential dates in which the officers would be off duty." Id . Plaintiffs contend further that Mr. Thomson agreed to set depositions near or after the discovery cut-off. Id.
Plaintiffs' evidence demonstrates that on July 1, 2013, at the deposition of Plaintiffs, Ms. Terterov inquired of Mr. Thomson of the names of the shooting officers but he was not able to tell her the names at that time. (Doc. 39-4 at 16) Sometime in September 2013, she again inquired and, once more on October 3, 2013 in an e-mail to Mr. Thomson. Id .; Id. at 8. In this e-mail, Ms. Terterov notes that the initial disclosure there were "more than 15 officers" listed and indicated that if Mr. ...