United States District Court, E.D. California
ORDER AFTER INFORMAL TELEPHONIC CONERENCE RE
DISCOVERY DISPUTE (Doc. 92)
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
September 5, 2017, the Court held an informal telephonic
conference. (Doc. 92) This informal conference was related,
at least in part, to the previous informal conference (Doc.
68). The earlier conference stemmed from the plaintiff's
expert, Mr. Ely, providing the second illustrative map after
the close of discovery. After the first conference, the
parties stipulated to an order allowing the defendants to
conduct discovery limited to this second illustrative map.
(Doc. 89) The purpose of reopening discovery on this topic,
clearly, was to cure the prejudice imposed on the defendants
due to the late disclosure of the map. Id.
current dispute relates to whether the plaintiffs should be
permitted to depose several witnesses. First, the plaintiffs
seek to depose Teresa Hitchcock because they believe that the
defendants will attempt to offer her at trial on a basis that
is expanded from that set forth in the defendants' Rule
26 disclosure. However, at the hearing, the defendants
clarified that Ms. Hitchcock's testimony will not exceed
the Rule 26 disclosure. Thus, the Court sees no basis to
allow this deposition in light of the fact that she was
timely disclosed and the plaintiffs chose not to depose her
during the discovery period. The request to depose Ms.
Hitchcock is DENIED.
the plaintiffs seek to re-depose Lorelei Oviatt as to whom
the defendants have provided an additional disclosure
outlining her expected testimony related to the new map.
Notably, there is no indication in the Court's order
(Doc. 89)-an order drafted and proposed by counsel-that the
plaintiffs would have any right to re-depose Ms. Oviatt
related to new testimony regarding the new map. In fact,
except for receiving the right to re-depose Dr. Johnson, the
plaintiffs reserved only the right to seek to depose
“newly-disclosed witnesses, as well as Teresa Hitchcock
and Karen Rhea.” (Doc. 89 at 2) The defendants were
obligated only to produce Rule 26 disclosures
related to Ms. Oviatt's “anticipated
testimony” related to the new map and this has
occurred. There is no indication in the order, despite the
clear anticipation that Ms. Oviatt would have new
testimony, that she would be re-deposed. Thus the request to
re-depose Ms. Oviatt is DENIED.
the plaintiffs seek to depose Kim Salas. The defendants
disclosed Ms. Salas as to “the communities of
interests” factor related to plaintiffs' new map.
The plaintiffs argued that allowing the deposition would
permit the trial to go “more smoothly” because
everyone would know in advance what the witness will say.
However, the Court has great difficulty with the fact that
the plaintiffs created this situation by failing to comply
with the Court's orders related to the discovery
deadlines. When the Court scheduled the case almost exactly a
year ago (Doc. 30), it adopted the deadlines for non-expert
and expert discovery that counsel requested (See
Doc. 28 at 8). Despite this, the plaintiffs submitted the
second illustrative map prepared by Mr. Ely about 45 days
after this deadline (Doc. 85). This failure to comply with
the case schedule has caused a cavalcade of delay and has
disrupted the orderly resolution of this matter.
at the informal conference, the plaintiffs did not provide
the Court a satisfactory explanation why the plaintiffs were
entitled to create this situation-by submitting the map
late-and then use the discovery allowed for the defense to
cure the prejudice as an opportunity to reopen discovery for
them as well. Rather, the Court is reminded of the parable of
how to boil a frog. Unfortunately, in the current dispute, it
appears the Court is envisioned as the frog; not so.
Discovery must come to an end and it was the Court's
order and anticipation that the end would have occurred on
February 10, 2017.
upon the statements made at the informal conference, it is
clear there is no compromise is possible on this topic and,
frankly, the Court heard no justification that would meet the
stringent requirements of Rule 16. At least in the Court'
view, the proffered arguments did not justify amending the
deadline to allow the filing of non-dispositive motions
(which expired, on February 20. 2017) let alone justification
to amend the case schedule to allow additional discovery. In
any event, the Court ORDERS:
request to re-depose Ms. Oviatt and to depose Ms. Hitchcock
plaintiffs may file their motion to amend the case schedule
to extend the deadline for filing non-dispositive motions and
to seek to amend the case schedule related to discovery
deadlines. If they choose to proceed with the motion,
they SHALL file their notice of motion no
later than September 11, 2017;
motion SHALL conform to Local Rule 251(c)
and both sides SHALL cooperate in filing a
joint statement re: discovery disagreement at least 14 days
before the hearing date that SHALL be set
before Judge Thurston.
 In the parable, the frog cannot be
dropped into a pot of boiling water because it will leap out
and save itself. However, if it is placed in a cool pot of
water and the temperature is raised one degree at a time, the
frog will fail to appreciate the danger and ...