United States District Court, E.D. California
parties filed a joint status report in this case proposing
conflicting deadlines for exchange of initial disclosures as
required by Federal Rule of Civil Procedure 26. ECF No. 63 at
10. Plaintiffs propose a deadline of July 19, 2019 and
defendants argue the deadline should be within 21 days of the
court's final resolution of “parties and pleading
challenges, ” referring to a forthcoming second motion
to dismiss. Id. For the reasons outlined below, the
deadline for Rule 26 disclosures shall be fourteen days from
the docketing of this order.
26(a)(1)(C) explains that Rule 26 disclosures should be made
within 14 days after the parties' Rule 26(f) conference
unless (1) “a different time is set by stipulation or
court order” or (2) “a party objects during the
conference that initial disclosures are not appropriate in
this action” and states so in the proposed discovery
plan. If such an objection is made, the court must determine
the timing and content of disclosures. Id. Parties
that are served after the 26(f) conference have 30 days after
being served to make their initial disclosures, unless a
different timeline is set by stipulation or court order.
on the joint status report, defendant implicitly objects to
the presumptive timeline for Rule 26 disclosures, and the
court must decide the appropriate timing. ECF No. 63 at 10.
The rules do not provide further guidance on how to do so,
however courts generally disfavor delaying discovery until
after a dispositive motion is resolved. In Canter &
Associates, LLC V. Teachscape, Inc., for example the
court addressed a situation in which a party wanted to delay
Rule 26 disclosures until after federal jurisdiction was
established. Canter & Assocs., LLC v. Teachscape,
Inc., No. C 07-3225 RS, 2008 WL 191978, at *1, n.2 (N.D.
Cal. Jan. 22, 2008). In dicta, the court noted that, though
such an objection would not have been “frivolous,
” “it is unlikely the court would have accepted
an argument that initial disclosures could be delayed until
federal jurisdiction is established. The pendency of a motion
to dismiss almost never serves to excuse compliance with
initial disclosure obligations.” Id.;
accord Baker v. Arkansas Blue Cross, No.
C-08-03974SBAEDL, 2009 WL 904150, at *2 (N.D. Cal. Mar. 31,
with express requests, courts have generally rejected
parties' requests for a stay of discovery while a
dispositive motion is pending. See Mlejnecky v. Olympus
Imaging Am., Inc., No. 2:10-CV-02630, 2011 WL 489743, at
*6 (E.D. Cal. Feb. 7, 2011) (“[D]istrict courts look
unfavorably upon such blanket stays of discovery.”
(citing Skellercup Indus. Ltd. v. City of L.A., 163
F.R.D. 598, 600-601 (C. D. Cal. 1995) (“Had the Federal
Rules contemplated that a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) would stay discovery, the Rules would
contain a provision for that effect. In fact, such a notion
is directly at odds with the need for expeditious resolution
of litigation”)) (other citations omitted)). In the
context of a discovery stay request, courts in the Ninth
Circuit often employ a two-part test:
First, the pending motion must be potentially dispositive of
the entire case, or at least dispositive on the issue at
which discovery is aimed. Second, the court must determine
whether the pending, potentially dispositive motion can be
decided absent additional discovery. . . . Discovery should
proceed if either prong of the test is not met.
Id. (citations omitted). Here, the parties have not
addressed this test, but the fact that courts set this high
bar for a discovery stay counsels against allowing Rule 26
disclosures to be delayed until after a motion to dismiss.
the Ninth Circuit has spoken on the issue, it has indicated
that a district court may abuse its discretion if it stays
discovery during the pendency of a motion to dismiss if the
discovery is relevant to the potentially dispositive motion.
See Id. (citing Alaska Cargo Transport, Inc. v.
Alaska R.R. Corp., 5 F.3d 378, 383 (9th Cir. 1993)
(indicating district court would have abused discretion in
staying discovery if discovery sought during pendency of
motion to dismiss was relevant to whether or not court had
subject matter jurisdiction); Jarvis v. Regan, 833
F.2d 149, 155 (9th Cir. 1987) (holding district court did not
abuse its discretion by staying discovery pending motion to
dismiss because complaint did not raise factual issues
requiring discovery for resolution); accord Glob.
Commodities Trading Grp., Inc. v. Beneficio De Arroz Choloma,
S.A., No. 216CV01045TLNCKD, 2016 WL 7474912, at *2 (E.D.
Cal. Dec. 29, 2016) (“Mlejnecky requires this
court to permit discovery that is relevant to an outstanding
motion, even if the motion could be decided without it,
because preventing discovery on information relevant to the
potentially dispositive motion would be an abuse of this
Court's discretion.”). Here, Toyota represents its
motion to dismiss makes the argument that plaintiffs have
failed to plead Toyota knew of any defects. JSR at 11.
Plaintiffs suggest they plan to conduct discovery that would
be relevant to this argument, including, inter alia,
by seeking records of consumer complaints and defendants'
internal communications regarding the soy-based wiring.
See JSR at 7, 11. The rule itself and the case law
supports requiring Rule 26 disclosures at this stage, rather
than after the forthcoming motion to dismiss is decided.
Accordingly, the parties shall exchange Rule 26 initial
disclosures within fourteen days.
 The recent amendments to the Federal
Rules do not change this conclusion. In fact, recent
amendments to the rules have strengthened the underlying
message encouraging action early in a case, for example,
through early case management conferences. See Fed.
R. Civ. P. 16, advisory committee's note to 2015
amendment (regarding the reduction in time to issue the
scheduling order, “[t]his change, together with the
shortened time for making service under Rule 4(m), will
reduce delay at ...