Walker v. Higher Education Loan Authority of the State of Missouri ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELISSA LOIS WALKER, Case No. 1:21-cv-00879-ADA-SAB 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 13 v. ORDER VACATING NOVEMBER 8, 2023 14 HIGHER EDUCATION LOAN HEARING 15 AUTHORITY OF THE STATE OF (ECF Nos. 63, 86, 87, 89, 92) MISSOURI, et al., 16 Defendants. 17 18 I. 19 INTRODUCTION 20 On October 4, 2023, Plaintiff Melissa Louis Walker (“Plaintiff”) filed a motion for 21 reconsideration (ECF No. 88) of the Court’s September 20, 2023 order granting in part and 22 denying in part the parties’ stipulated motion and Plaintiff’s “unilateral request” to modify the 23 scheduling order (ECF No. 87). Defendant Higher Education Loan Authority of the State of 24 Missouri, doing business as MOHELA, (“Defendant”) opposes Plaintiff’s motion for 25 reconsideration. (ECF No. 89.) The Court finds this matter suitable for decision without oral 26 argument. See Local Rule 230(g). Accordingly, the hearing set for November 8, 2023 will be 27 vacated and the parties will not be required to appear at that time. For the reasons set forth 28 herein, Plaintiff’s motion for reconsideration is denied. 1 II. 2 BACKGROUND 3 This action was filed on June 2, 2021. (ECF No. 1.) A scheduling order for this matter 4 was issued on December 16, 2022. (ECF No. 63.) The scheduling order contained the following 5 dates and deadlines: 6 1. Non-Expert Discovery Deadline: June 30, 2023; 7 2. Expert Disclosure Deadline: July 14, 2023; 8 3. Supplemental Expert Disclosure Deadline: August 31, 2023; 9 4. Expert Discovery Deadline: September 29, 2023; 10 5. Dispositive Motion Filing Deadline: November 20, 2023; 11 6. Pretrial Conference: April 29, 2024, at 1:30 p.m., in Courtroom 1; and 12 7. Trial: July 9, 2024, at 8:30 a.m., in Courtroom 1. 13 (ECF No. 63.) 14 On September 18, 2023, the parties filed a stipulation to continue the expert discovery 15 deadline by thirty days and sought to reopen fact discovery to depose an unnamed Federal Rule of 16 Civil Procedure (“Rule”) 30(b)(6) fact witness by or before September 29, 2023. (ECF No. 86 at 17 2.) In the same filing, Plaintiff also made a “unilateral request” for the Court to issue an order 18 allowing Plaintiff to take the deposition of a non-expert witness, Nina Zavala, a program and 19 management analyst with the United States Department of Education, pursuant to Rule 45. (ECF 20 No. 86 at 3; ECF No. 86-1 at 1.) Plaintiff represented that Defendant took “no position as to the 21 Fed. R. Civ. P. 45 deposition of Ms. Zavala.” (ECF No. 86 at 4.) The need for both the stipulated 22 Rule 30(b)(6) witness deposition and Plaintiff’s unilateral request for Ms. Zavala’s deposition 23 purportedly stems from a supplemental production of ninety-pages of “highly relevant” 24 documents that were produced by Defendant on July 28, 2023, nearly a month after the non- 25 expert discovery deadline. (Id. at 2.) Plaintiff proffered that the documents contained 26 communications between the U.S. Department of Education and Defendant regarding policies and 27 procedures for credit reporting. (Id. at 3.) Plaintiff specifically argued Ms. Zavala’s deposition is 28 necessary to ascertain the U.S. Department of Education’s position on the requirements for 1 Defendant’s credit reporting, which Plaintiff asserted is important because Defendant’s position 2 throughout the entirety of the current litigation is that it relies on the U.S. Department of 3 Education for investigation into credit reporting disputes. (Id.) 4 Construing the stipulation and Plaintiff’s unilateral request as a motion to modify the 5 scheduling order, the Court granted the motion in part and denied it in part on September 20, 6 2023. (ECF No. 87.) The Court found good cause to grant the parties’ timely stipulated request 7 to continue the expert discovery deadline to October 30, 20231 to complete two expert 8 depositions. (Id. at 3.) However, the Court denied the requests to sanction reopening non-expert 9 discovery primarily because the parties failed to demonstrate diligence in obtaining discovery 10 within the guidelines established by the Court and the Court found the need for the requested 11 discovery was foreseeable within the time allowed for discovery. (Id. at 5 (citing City of Pomona 12 v. SQM N. Am. Corp., 866 F.3d 1060 (9th Cir. 2017)).) The Court specifically noted that the 13 parties failed to explain why they waited until September—three months after the close of non- 14 expert discovery and two months after Defendant’s supplemental production—to move for 15 modification of the scheduling order. (Id.) 16 On October 4, 2023, Plaintiff’s filed the instant motion for reconsideration of the Court’s 17 September 20, 2023 order denying the parties’ stipulated motion to reopen discovery to depose an 18 unnamed Federal Rule of Civil Procedure 30(b)(6) fact witness and Plaintiff’s unilateral request 19 to depose Ms. Zavala. (Pl.’s Mot. for Reconsideration (“Mot.”) ECF No. 88-1.) On October 11, 20 2023, Defendant filed an opposition to Plaintiff’s motion for reconsideration. (Def.’s Opposition 21 to Pl.’s Mot. for Reconsideration (Opp’n) ECF No. 89.) On October 20, 2023, Plaintiff filed a 22 reply to Defendant’s opposition. (Pl.’s Reply (“Reply”) ECF No. 92.) 23 II. LEGAL STANDARD 24 25 “A motion for reconsideration should not be granted, absent highly unusual 26 circumstances, unless the district court is presented with newly discovered evidence, committed 27 1 On October 17, 2023, the parties filed another timely motion to modify the scheduling order to extend the expert discovery deadline until November 4, 2023 due to unforeseen scheduling issues. (ECF No. 90.) On October 18, 28 2023, the Court found good cause for the modification and granted the motion. (ECF No. 91.) 1 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 2 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal citations and 3 quotations omitted). Further, “[a] motion for reconsideration may not be used to raise arguments 4 or present evidence for the first time when they could reasonably have been raised earlier in the 5 litigation.” Id. (citing Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 6 7 2000)); see also U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (“A 8 motion for reconsideration is not a vehicle to reargue the motion or to present evidence which 9 should have been raised before”) (internal quotation marks and citations omitted). “A party 10 seeking reconsideration must show more than a disagreement with the Court's decision, and 11 recapitulation of the cases and arguments considered by the court before rendering its original 12 decision fails to carry the moving party's burden.” Id. (internal quotation marks and citations 13 omitted). 14 15 Additionally, when filing a motion for reconsideration of an order, Local Rule 230(j) 16 requires the moving party to show “what new or different facts or circumstances are claimed to 17 exist which did not exist or were not shown upon such prior motion, or what other grounds exist 18 for the motion” and explain “why the facts or circumstances were not shown at the time of the 19 prior motion.” E.D. Cal. L.R. 230(j)(3)-(4). 20 21 III. 22 DISCUSSION 23 Plaintiff asks the Court to reconsider its denial to reopen non-expert discovery. (Mot. 2.)2 24 In doing so, Plaintiff additionally asks this Court to “1) confirm the Fourth Supplemental 25 Production3 is part of the case record; 2) allow the additional Fed. R. Civ. P. 30(b)(6) deposition 26 testimony; and 3) allow the deposition of Nina Zavala to take place.” (Id.) Plaintiff argues 27 2 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the CM/ECF electronic court docketing system. 28 3 Plaintiff refers to Defendant’s July 28, 2023 production of documents as the “fourth supplemental production.” 1 Defendant’s untimely fourth supplemental production is “central to the claims in the case” and it 2 would be “highly prejudicial to Plaintiff for the Court not to allow either the Fourth Supplemental 3 Production, the additional [Rule] 30(b)(6) testimony, or the deposition of Nina Zavala to take 4 place” given that Plaintiff did not know the fourth supplemental production existed before June 5 29, 2023 and did not know its substance until it was produced on July 28, 2023. (Id.) Plaintiff 6 admits that the communications between the parties and the substance of Defendant’s fourth 7 supplemental production were not “clearly and extensively conveyed” to the Court in the parties’ 8 September 18, 2023 stipulation and unilateral request. (Id. at 4-5.) Plaintiff thus requests that the 9 Court reconsider its denial to reopen non-expert discovery based on the “new facts and evidence” 10 provided in the instant motion. (Declaration of Ryan L. McBride in Support of Pl.’s Mot. for 11 Reconsideration (“McBride Decl.”) ECF No. 88-2 at ¶ 15). 12 Defendant opposes Plaintiff’s motion for two reasons. Defendant first argues that 13 Plaintiff’s proper recourse is to request that the assigned District Judge review the Court’s denial 14 to reopen non-expert discovery under Local Rule 303 rather than Plaintiff’s instant motion for 15 reconsideration under Local Rule 230(j). (Opp’n 3-4.) Defendant reasons the Court’s order is 16 derived on a stipulation between the parties rather than a motion, which precludes its review 17 under Local Rule 230(j). (Id.) Second, Defendant argues that even if Local Rule 230(j) applies, 18 Plaintiff’s motion does not contain any new or different facts for the Court to consider. (Id. at 2- 19 3.) Instead, Defendant argues Plaintiff’s instant motion merely reiterates (1) that Plaintiff did not 20 know the substance of the fourth supplemental production until July 28, 2023; (2) that Plaintiff 21 considers the production to be highly relevant; and (3) the description of the contents of the fourth 22 supplemental production, all of which are facts that were previously presented in the September 23 18, 2023 stipulation and unilateral request. (Id. at 2.) 24 In her reply, Plaintiff briefly “asks the Court to consider this motion under L.R. 303(c) as 25 a request for reconsideration.” (Reply 3.) Plaintiff further proffers that on October 19, 2023, 26 Defendant produced another untimely set of documents (“fifth supplemental production”) that 27 relate to Defendant’s policies and procedures and include communications regarding those 28 procedures. (Id. at 2.) Plaintiff argues that this set of documents is “new information” not 1 presented in her unilateral request to depose Ms. Zavala and maintains she should be allowed to 2 depose Ms. Zavala. (Id.) Plaintiff thus requests that the Court amend its order to also “[a]llow 3 the fifth supplemental production to be a part of the case record.” (Id. at 3.) 4 A. Plaintiff Properly Filed Her Motion Under Local Rule 230(j) 5 When the motion for reconsideration pertains to an order granting or denying a prior 6 motion, Local Rule 230(j) requires the moving party to “[identify] what new or different facts or 7 circumstances are claimed to exist which did not exist or were not shown upon such prior motion, 8 or what other grounds exist for the motion; and [explain] why the facts or circumstances were not 9 shown at the time of the prior motion.” L.R. 230(j)(3)–(4). In its opposition, Defendant argues 10 “it is unclear that Rule 230(j) even applies” because the Court’s September 20, 2023 order 11 derived from “a stipulation between the parties, not a motion.” (Opp’n 3.) 12 The Court finds Plaintiff’s instant motion is properly filed as a motion for reconsideration 13 under Local Rule 230(j) for three reasons. First, Local Rule 101 states that “ ‘[m]otion’ means a 14 motion, application, petition, or other request made to the Court for an order or other judicial 15 activity.” The parties’ initial motion was captioned, “Stipulation to Allow an Additional Fact 16 Witness Deposition After the Nonexpert Discovery Deadline…and Unilateral Request to Allow a 17 Fed. R. Civ. P. 45 Deposition After the Non-Expert Discovery Deadline.” (ECF No. 86 at 1.) 18 The parties filed a corresponding proposed order, which evinces the parties’ part-stipulation, part- 19 unilateral request was “made to the Court for an order….” L.R. 101. (See ECF No. 86-1.) 20 Accordingly, the parties’ September 18, 2023 stipulation and unilateral request falls under the 21 definition of “motion” within Local Rule 101 and is therefore not precluded from review under 22 Local Rule 230(j). 23 Additionally, the Court expressly stated in its September 20, 2023 order that it “construes 24 the parties’ request as a stipulated motion to modify the scheduling order.” (ECF No. 87 at 3 25 (emphasis added).) The Court’s order also specifically denied both “[t]he parties’ motion to 26 reopen non-expert discovery” to depose Defendant’s Rule 30(b)(6) witness and “Plaintiff’s 27 motion to reopen nonexpert discovery…to depose Nina Zavala.” (Id. at 6 (emphasis added).) 28 Contrary to Defendant’s argument, the Court’s order derived from a stipulated motion and 1 “unilateral” motion by Plaintiff. 2 Finally, irrespective of both Local Rule 101 and the Court’s express construction of the 3 parties’ September 18, 2023 filing, Plaintiff is requesting, in part, that this Court reconsider its 4 denial of Plaintiff’s “unilateral request” to depose Nina Zavala. (Mot. 2.) Thus, Defendant’s 5 argument that the Court’s September 20, 2023 order is derived solely from a stipulation is 6 unavailing. Defendant only stipulated to two-thirds of the September 18, 2023 motion: the 7 extension to the expert discovery deadline and the motion to reopen non-expert discovery to 8 depose Defendant’s Rule 30(b)(6) witness. The third request, reopening non-expert discovery to 9 take the deposition of Ms. Zavala by or before October 30, 2023, was Plaintiff’s “unilateral 10 request,” in which Defendant “[took] no position.” (ECF No. 86 at 4.) Accordingly, the Court’s 11 September 20, 2023 order derived from both a stipulated motion and Plaintiff’s “unilateral” 12 motion to reopen non-expert discovery. The Court finds Plaintiff’s instant motion is properly 13 before the Court pursuant to Rule 230(j). 14 Relatedly, the Court denies Plaintiff’s unsupported request in her reply “additionally 15 ask[ing] the Court to consider this motion under L.R. 303(c) as a request for reconsideration.” 16 (Reply 3.) A motion for reconsideration under Local Rule 303 requires specific procedural 17 mechanisms, including: 18 A party seeking reconsideration of the Magistrate Judge's ruling shall file a request for reconsideration by a Judge and serve the 19 Magistrate Judge and all parties. Such request shall specifically designate the ruling, or part thereof, objected to and the basis for 20 that objection. This request shall be captioned "Request for Reconsideration by the District Court of Magistrate Judge's Ruling. 21 22 L.R. 303(c). Further, the standard of review used by the district judge when reviewing a Local 23 Rule 303 request is the “ ‘clearly erroneous or contrary to law’ standard set forth in 28 U.S.C. § 24 636(b)(1)(A).” L.R. 303(f) (citing Fed. R. Civ. P. 72(a).) 25 Here, Plaintiff’s motion does not comply with Local Rule 303(c). First, the instant motion 26 is captioned “Plaintiff’s Motion for Reconsideration of Order Denying In Part the Parties’ Prior 27 Stipulation and Plaintiff’s Unilateral Request,” which is procedurally noncompliant with Local 28 Rule 303(c). (Mot. 1.) Further, Plaintiff’s corresponding proposed order requests the Magistrate 1 Judge’s signature, which clearly evinces she is not seeking reconsideration of the Magistrate 2 Judge’s decision by the assigned District Judge. (See ECF No. 88-4.) Additionally, as Defendant 3 notes, Plaintiff fails to mention, nonetheless argue, that the Court’s order denying the reopening 4 of non-expert discovery is “clearly erroneous or contrary to law.” L.R. 303(f). 5 Given the instant motion does not meet any of the procedural requirements required by 6 Local Rule 303(c), the Court denies Plaintiff’s request that the Court also construe her motion as 7 a Local Rule 303(c) request for reconsideration. The Court will therefore analyze Plaintiff’s 8 instant motion as a motion for reconsideration pursuant to Local Rule 230(j). 9 B. The Court Denies Plaintiff’s Motion for Reconsideration 10 In her motion for reconsideration of the Court’s order denying the parties’ stipulated 11 motion and Plaintiff’s unilateral motion to reopen non-expert discovery, Plaintiff first proffers 12 “new facts” regarding the parties’ communications that were not provided in the previous motion. 13 Plaintiff explains Defendant’s counsel notified Plaintiff’s counsel via email on June 29, 2023— 14 one day before the close of non-expert discovery—that Defendant would be forwarding 15 supplemental documents “within one to two weeks.” (Mot. 2; McBride Decl. ¶ 4.) Defendant’s 16 counsel did not specify the nature or contents of the documents. (McBride Decl. ¶ 4.) On July 17 14, 2023, Plaintiff’s counsel asked if Defendant still intended to produce the supplemental 18 production and Defendant’s counsel indicated the documents would be produced by July 21, 19 2023. (Id. at ¶ 6.) Defendant produced the documents on July 28, 2023. (Mot. 3.) On August 3, 20 2023, Plaintiff’s counsel sent an email to Defendant’s counsel requesting a deposition of an 21 unnamed Rule 30(b)(6) witness related to the fourth supplemental production. (McBride Decl. ¶ 22 9.) Plaintiff’s counsel also “indicated that Plaintiff intended on deposing Ms. Zavala,” who was 23 first identified in the fourth supplemental production. (McBride Decl. ¶ 8-9.) Plaintiff’s counsel 24 proffers that Defendant’s counsel agreed to an additional Rule 30(b)(6) deposition relating to the 25 fourth supplemental production, “but did not take a position as to a deposition of Nina Zavala.” 26 (Id. at ¶ 10.) “In an exercise of due diligence,” the parties took the deposition of the Rule 27 30(b)(6) witness on September 18, 2023, the same day the parties filed the initial stipulation and 28 unilateral request which requested in part that the Court “allow an additional [Rule] 30(b)(6) 1 deposition by or before September 29, 2023.” (Id. at ¶ 12; ECF No. 86 at 2.) Plaintiff therefore 2 requests that this Court amend its order based upon these new facts regarding the parties’ 3 communications relating to the fourth supplemental production. 4 While Plaintiff’s explanation of the parties’ communications regarding the fourth 5 supplemental production in the instant motion is certainly more detailed than Plaintiff’s 6 admittedly “cursory explanation of facts in the prior stipulation,” the Court finds the newly 7 proffered details are insufficient to support Plaintiff’s motion to reopen discovery. (Mot. 6.) 8 First, such detail regarding the parties’ communications could have reasonably been raised in the 9 parties’ September 18, 2023 motion to reopen discovery. See Westlands Water Dist., 134 F. 10 Supp. 2d at 1131 (“A motion for reconsideration is not a vehicle to reargue the motion or to 11 present evidence which should have been raised before”). Pursuant to Local Rule 230(j)(3), 12 Plaintiff must present “new or different facts or circumstances…claimed to exist which did not 13 exist or were not shown upon such prior motion.” However, Plaintiff’s proffered “new” facts all 14 existed at the time of filing the September 18, 2023 stipulation and unilateral request: (1) Plaintiff 15 argues she was not aware of the existence of the fourth supplemental production until the June 29, 16 2023 email from Defendant’s counsel; (2) Plaintiff states she did not know the contents of the 17 fourth supplemental production until she received it on July 28, 2023; (3) within four business 18 days of reviewing the ninety pages, Plaintiff requested an additional deposition of the Rule 19 30(b)(6) witness and indicated that Plaintiff intended to depose Ms. Zavala; and (4) Plaintiff 20 proffers that the deposition of the Rule 30(b)(6) witness occurred on September 18, 2023. (Mot. 21 4-5.) Clearly, Plaintiff was aware of each of these facts prior to September 18, 2023. Plaintiff 22 has therefore failed to present new or different facts that did not exist at the time of the September 23 18, 2023 motion to reopen non-expert discovery. 24 Even if Plaintiff’s “new facts” were merely “not shown upon such prior motion,” such 25 facts are insufficient to support Plaintiff’s motion to reopen discovery. L.R. 230(j)(3). The 26 Court’s September 20, 2023 order stated in part: 27 Clearly, the parties should have moved for modification of the scheduling order earlier than this motion was submitted, or at least 28 notified the Court around the time of the supplemental production 1 nearly two months ago. The parties have provided no reason or mention as to why the parties did not notify or present this 2 foreseeable motion to the Court at an earlier date, despite the requirements for modification of discovery deadlines that have been 3 clearly stated in the Court’s December 16, 2022 scheduling order. 4 (ECF No. 87 at 5.) Thus, under the scarce timeline presented in the September 18, 2023 5 stipulation and unilateral request, the Court evaluated the motion to reopen discovery based only 6 on Plaintiff’s proffer that she was unaware of the contents of the fourth supplemental production 7 until they were produced on July 28, 2023. However, in the instant motion, Plaintiff repeatedly 8 confirms that she was “aware of the existence of the supplemental documentation” on June 29, 9 2023 by way of an email from Defendant’s counsel that stated Defendant would provide the 10 documents “within one to two weeks.” (Mot. 4-5; McBride Decl. ¶ 4.) Based on this newly 11 proffered detail, Plaintiff knew Defendant was planning to produce supplemental documents prior 12 to the untimely production on July 28, 2023 and even before the non-expert discovery deadline on 13 June 30, 2023. While Plaintiff maintains she could not have moved for the two depositions with 14 the Court because she did not know the substance of the fourth supplemental production until 15 July 28, 2023, Plaintiff repeatedly acknowledges she knew of the existence of the fourth 16 supplemental production as early as June 29, 2023. (Mot. 2, 6.) Therefore, the Court finds the 17 parties knew Defendant planned to produce documents after the non-expert discovery deadline 18 and failed to diligently request a timely modification of the scheduling order. 19 As Plaintiff argued in her September 18, 2023 motion and again in her instant motion, the 20 Court is aware Plaintiff did not know the nature or content of Defendant’s fourth supplemental 21 production until after the non-expert discovery deadline expired. However, Plaintiff again fails to 22 explain why she failed to seek leave of Court—either to file a motion to modify the scheduling 23 order or otherwise notify the Court that Defendant intended to produce untimely discovery—until 24 the September 18, 2023 stipulation and unilateral motion to reopen discovery. Accordingly, upon 25 reconsideration, the Court does not find the newly proffered details support Plaintiff’s request to 26 reopen non-expert discovery. 27 Plaintiff also proffers “new facts” regarding the substance of the fourth supplemental 28 production that she argues were not previously provided in the initial stipulation and unilateral 1 request. Plaintiff argues that Defendant has continually asserted throughout the litigation that its 2 only duty is to ensure Plaintiff’s identity theft application is complete and to then send it to the 3 U.S. Department of Education for substantive analysis. (Id.) Plaintiff avers Defendant’s 4 untimely fourth supplemental production contradicts Defendant’s position because Ms. Zavala, an 5 employee of the U.S. Department of Education, was included in emails “relating to [Defendant’s] 6 duties as a loan servicer commenting upon Defendant’s duties in investigation.” (Id.) Plaintiff 7 argues she is prejudiced by the late production because the relationship between the U.S. 8 Department of Education and Defendant is information that was sought by Plaintiff to understand 9 the dynamic of account disputes and credit report investigations. (Id. at 5-6.) Plaintiff argues that 10 she should get the opportunity to depose Ms. Zavala to explore what was meant by the 11 purportedly contradictory language contained within in the fourth supplemental production. (Id.) 12 The Court finds Plaintiff’s proffered details do not support her motion to reopen non- 13 expert discovery. First, while certainly more detailed in the instant motion, the proffered facts 14 were known and considered by this Court in its September 20, 2023 order. Specifically, Plaintiff 15 proffered in her initial unilateral request that the “highly relevant” fourth supplemental production 16 contained communications between the U.S. Department of Education and Defendant regarding 17 policies and procedures for credit reporting. (ECF No. 86 at 3.) Plaintiff identified Nina Zavala 18 and specifically argued Ms. Zavala’s deposition is necessary to ascertain the U.S. Department of 19 Education’s position on the requirements for Defendant’s credit reporting, which Plaintiff 20 asserted is important because Defendant’s position throughout the entirety of the current litigation 21 is that it relies on the U.S. Department of Education for investigation into credit reporting 22 disputes. (Id.) The Court thus finds Plaintiff merely presents a recapitulation of the same facts 23 and argument previously considered by this Court. See Westlands Water Dist., 134 F. Supp. 2d at 24 1131. 25 Plaintiff further argues that despite purportedly contradictory information contained 26 within the fourth supplemental production, the unnamed Rule 30(b)(6) witness maintained in his 27 or her deposition on September 18, 2023 that Defendant only has a limited duty before it sends 28 identity theft applications to the U.S. Department of Education for substantive review. (Id. at 6.) 1 Plaintiff thus contends that the fact that Defendant is “maintaining its [] position regarding 2 investigation requirements” is new information. (Id.) Because the information was provided in 3 the deposition on September 18, 2023, Plaintiff argues it could not have been presented in the 4 September 18, 2023 stipulation and unilateral request. (Id.) However, in line with Defendant’s 5 argument, the fact that Defendant’s litigation position did not change after the supplemental 6 production, and instead remains the same as it has been throughout the litigation, does not qualify 7 as “new” information sufficient to support Plaintiff’s motion for reconsideration to reopen non- 8 expert discovery. 9 The Court turns to its September 20, 2023 order. Specifically, Plaintiff’s counsel asserts 10 “the Court issued its order denying the additional witness depositions” and argues that “not 11 allowing further testimony and consideration of the late production of Defendant would be 12 severely prejudicial to Plaintiff…” (McBride Decl. ¶ 13; Reply 3.) However, the Court’s order 13 only denied the parties’ stipulation and Plaintiff’s unilateral request to reopen non-expert 14 discovery three months after the expiration of the non-expert discovery deadline. (See ECF No. 15 87.) The Court’s order did not prohibit consideration of Defendant’s untimely supplemental 16 productions, nor did the Court prohibit additional witness depositions. The parties may agree to 17 conduct non-expert discovery after the June 30, 2023 deadline.4 The Court will not prohibit the 18 parties from doing so. However, the Court will also not sanction the parties’ failure to diligently 19 adhere to the scheduling order by way of a post hoc request for modification, akin to that 20 requested by the parties on September 18, 2023.5 Absent a demonstration of good cause, the 21 Court must enforce the schedules that are first proposed by the parties in their joint scheduling 22 order (ECF No. 61 at 5); then agreed to by the parties at the scheduling conference (ECF No. 62); 23 4 In fact, the parties have already agreed to conduct discovery after the June 30, 2023 deadline. For example, the 24 parties implicitly agreed to produce the fourth supplemental production within one to two weeks after the non-expert discovery deadline. Additionally, contrary to Plaintiff’s counsel’s assertion that the Court “den[ied] the additional 25 witness depositions,” the parties successfully deposed Defendant’s Rule 30(b)(6) witness on September 18, 2023— the same day they filed the stipulated and unilateral motion to reopen non-expert discovery. 5 “In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and 26 establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties 27 must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence.” Wong v. Regents of Univ. of 28 California, 410 F.3d 1052, 1060 (9th Cir. 2005) (superseded on other grounds by statute). 1 and then established by the Court in the scheduling order (ECF No. 63 at 2). Accordingly, upon 2 reconsideration, Plaintiff’s motion to reopen discovery is denied. 3 Relatedly, Plaintiff requests that this Court also “amend its prior order” as follows: (1) 4 allow the Fourth Supplemental Production to be a part of the case record; (2) allow the Fifth 5 Supplemental Production to be a part of the case record; (3) allow the testimony of Defendant’s 6 additional Rule 30(b)(6) witness deposition taken on September 18, 2023 to be a part of the case 7 record; and (4) allow Plaintiff to take the deposition of Nina Zavala. (Reply 3.) As previously 8 discussed, the Court’s order denying the reopening of non-expert discovery does not prohibit the 9 supplemental productions and the deposition of Defendant’s unnamed 30(b)(6) witness from 10 being “a part of the case record.” Further, as discussed, the Court has not prohibited the parties 11 from agreeing to take Ms. Zavala’s deposition after June 30, 2023; rather, the Court denies 12 Plaintiff’s unsupported request that the Court reopen non-expert discovery and order that Plaintiff 13 be “allow[ed]” to depose Ms. Zavala.6 Further, Plaintiff proffers Defendant produced a fifth 14 supplemental production of documents on October 19, 2023, which is a month after the Court’s 15 September 20, 2023 order. Plaintiff only proffers that the fifth supplemental production contains 16 “additional documents… relating to the policies and procedures of Defendant, including internal 17 communications regarding these procedures.” (Reply 2.) Plaintiff argues it is “new information 18 being presented to the Court” and she should be allowed to ask Ms. Zavala about the documents. 19 (Reply 2-3.) While Defendant’s untimely production is a new fact, Plaintiff provides no 20 information that Ms. Zavala is connected to the documents or how the fifth supplemental 21 production is otherwise relevant to the Court’s September 20, 2023 denial to reopen non-expert 22 discovery to either depose Defendant’s Rule 30(b)(6) witness or Ms. Zavala. The Court therefore 23 denies Plaintiff’s request to amend its order. 24 /// 25 /// 26 6 Notably, given Defendant’s opposition to Plaintiff’s instant motion, Plaintiff’s request for the Court’s authorization to depose Ms. Zavala appears to have morphed into a silhouette of a procedurally improper and untimely motion to 27 compel. As the Court expressly “cautioned” in its December 16, 2022 scheduling order and reiterated in its September 20, 2023 order, any motion to compel or other non-expert discovery motion made to the Court after June 28 30, 2023 “may result in denial of the motion as untimely.” (See ECF 68 at 3 (citing ECF No. 63 at 3).) 1 V. 2 CONCLUSION AND ORDER 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Upon reconsideration (ECF No. 86), Plaintiff's motion to reopen non-expert 5 discovery to depose Nina Zavala is DENIED; 6 2. Plaintiff's additional requests that the Court order Defendant’s fourth and fifth 7 supplemental productions and the September 18, 2023 testimony of Defendant’s 8 Fed. R. Civ. P. 30(b)(6) witness be a part of the case record are DENIED; and 9 3. All remaining deadlines set forth in the scheduling order, as modified, shall remain 10 unaltered. 11 b IT IS SO ORDERED. □□ (Se 13 | Dated: _ November 7, 2023 OF 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1A