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Thomason v. City of Fowler

United States District Court, E.D. California

September 9, 2014



BARBARA A. McAULIFFE, Magistrate Judge.


Before the Court is Plaintiff Derek Thomason's ("Plaintiff") Motion to Compel Production of Documents and Deposition Answers. (Docs. 62, 67.) The Parties filed joint discovery statements on August 22, 2014. (Doc. 67). The Motion was heard on August 29, 2014, at 9:00 AM, before the United States Magistrate Judge Barbara A. McAuliffe. Counsel Kaveh Navab personally appeared on behalf of Plaintiff Derek Thomason ("Plaintiff"). Counsel Jenell VanBindsbergen personally appeared on behalf of the Defendants. Having considered the joint statement of the parties, argument presented at the hearing, as well as the Court's file, the motion is DENIED.


A. Factual Background

This action for damages arises from the termination of Plaintiff Derek Thomason from his employment with Defendant City of Fowler ("City") by individual defendants City Manager David Elias ("Elias") and Police Chief Michael Brand ("Brand, " collectively "Defendants"). Plaintiff alleges that he was a whistleblower when he notified the Fowler City Council that there was a large backlog of un-filed criminal cases at the Fowler Police Department ("FPD") and that FPD would not act to prosecute those responsible. He alleges that he was wrongfully terminated as a result of these actions. In his complaint, Plaintiff alleges claims for violation of his free speech rights under the First Amendment in violation of 42 U.S.C. § 1983, state law claims for violation of various California Labor Code statutes and intentional infliction of emotional distress, and wrongful termination in violation of public policy under California common law. (Doc. 1).

B. Relevant Procedural Background

Plaintiff filed this action on March 8, 2013. On November 4, 2013, the parties participated in an Initial Scheduling Conference. (Doc. 39). The Court reviewed the parties' joint recommendations, and on November 13, 2013, entered a Scheduling Order requiring all non-expert discovery, including motions to compel, be completed by July 10, 2014. (Doc. 42 at 3). The Scheduling Order stated that all discovery, including motions, were to be completed by the cut-off date. (Doc. 42 ("Compliance with these discovery cutoffs requires motions to compel be filed and heard sufficiently in advance of the cutoff so that the Court may grant effective relief within the allotted discovery time.")) The parties stipulated on June 10, 2014 to a continuance of the non-dispositive and dispositive motion deadlines. (Doc. 58). The stipulation was granted in part and denied in part, and the Court extended the non-dispositive motion filing deadline to July 23, 2014. (Doc. 59). In that order, the Court reminded the parties that their "failure to have a discovery dispute heard sufficiently in advance of the discovery cutoff may result in denial of the motion as untimely." (Doc. 59). On July 2, 2014, the parties filed another stipulation requesting a five-day extension of the non-expert discovery deadline to July 17, 2014 for the limited purpose of completing additional fact and expert witness depositions. (Docs. 60, 61). The following day, the Court granted the parties request for an extension. On July 23, 2014, Plaintiff's Motion to Compel followed.

C. Background of the Parties' Discovery Efforts

Since discovery opened, Plaintiff has propounded four sets of requests for production of documents (RFP), totaling over 270 specific document requests. Shortly after the scheduling order issued, Plaintiff first propounded RFP's on Defendants Elias, Brand, and Fowler beginning on November 22, 2013. Declaration of Kunti Dudakia, "Dudakia Decl.", at ¶¶ 2-7. Dudakia Decl. at ¶ 2. Defendants sent responses on January 27, 2014. Dudakia Decl., at ¶¶ 6-7. Defendant Fowler sent a second supplemental response on April 25, 2014. Plaintiff sent a second set of RFP's on February 24, 2014, and Defendants responded on April 9, 2014. Dudakia Decl., at ¶ 7. Plaintiff then sent a third set of RFP's to Defendant Fowler on May 30, 2014 who responded on June 30, 2014. Kirby F. Cañon, "Cañon Decl.", at ¶ 13. Most recently, on June 10, 2014, Plaintiff sent RFP's, Set Three to Defendants Brand and Elias and Set Four to Defendant Fowler and received responses on July 10, 2014. Cañon Decl., at ¶ 14

Beginning on June 24, 2014, Plaintiff sent a meet and confer letter regarding what he believed were deficient responses to Plaintiff's first set of RFP's propounded on November 22, 2013. Plaintiff's primary concern was that Defendants refused to produce several categories of documents based on a variety of privilege objections. Plaintiff argued in his meet and confer letter that Defendants responses were inadequate, not subject to any privileges, and should have been accompanied by a privilege log. Navab Decl., at ¶ 5.

On July 7, 2014, Defendants responded to Plaintiff's meet and confer letter to Plaintiff reasserting its privilege objections and on July 9, 2014, Plaintiff's counsel contacted Defendants' counsel via phone to discuss Defendants continued unwillingness to respond to Plaintiff's discovery requests and failure to provide an adequate privilege log. Navab Decl., at ¶ 5. During that meet and confer, Defendants agreed to produce a limited privilege log.

On July 21, 2014, counsel for Plaintiff and Defendants met and conferred again, for two hours, to resolve all outstanding issues by telephone. Cañon Decl., at ¶ 17. As a result of these meet and confer efforts, the parties reached an agreement as to several discovery requests. Id. However, the parties were unable to reach a mutually agreeable resolution on other specific requests for production and issues. Id. As a result of the unsuccessful attempts to meet and confer on the outstanding discovery issues, Plaintiff filed the instant motion to compel on July 23, 2014-the non-dispositive discovery deadline-and set a hearing for August 29, 2014. (Doc. 30). The Court issued a minute order reminding the parties to comply with Local Rule 251 which requires the moving party to file a joint statement ...

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