Estate of Antonio Thomas v. County of Sacramento ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF ANTONIO THOMAS, et al., No. 2:20-cv-0903 KJM DB 12 Plaintiffs, 13 v. ORDER 14 COUNTY OF SACRAMENTO et al., 15 Defendants. 16 17 This matter came before the undersigned on February 18, 2022, for hearing of plaintiffs’ 18 motion for sanctions pursuant to Local Rule 302(c)(1).1 (ECF No. 110.) Attorney Mark Merin 19 appeared via Zoom on behalf of plaintiffs. Attorney Carl Fessenden appeared via Zoom on 20 behalf of defendants. Having considered the parties’ briefing and oral argument plaintiffs’ 21 motion is denied without prejudice to renewal. 22 Before turning to plaintiffs’ motion, the undersigned notes that the parties have been 23 previously advised that “[t]he discovery process in theory should be cooperative and largely 24 unsupervised by the district court.” Sali v. Corona Regional Medical Center, 884 F.3d 1218, 25 1219 (9th Cir. 2018). “When that cooperation breaks down, the district court has broad discretion 26 27 1 Defendants filed a request for a page limit increase to oppose plaintiffs’ motion. (ECF No. 117.) That request will be denied as unnecessary as the undersigned does not have a page 28 limitation for briefing outside of Joint Statements re Discovery Disputes. 1 to regulate discovery conduct and, if needed, impose a wide array of sanctions.” Infanzon v. 2 Allstate Insurance Company, 335 F.R.D. 305, 311 (C.D. Cal. 2020). Here, that cooperation has 3 repeatedly broken down. And the undersigned continues to be disappointed in the parties’ 4 inability to resolve their discovery disputes. 5 With respect to plaintiffs’ motion, the motion concerns a voluminous number of 6 documents, numbering in the thousands. According to plaintiffs’ counsel at the February 18, 7 2022 hearing, defense counsel should have produced those document “way earlier.” Although 8 plaintiffs’ counsel disagrees, the sanction plaintiffs seek for defendants’ alleged conduct is 9 extreme. 10 In this regard, at the February 18, 2022 hearing plaintiffs’ counsel explained that in 11 seeking sanctions they oppose the lesser sanction of extending the discovery deadline and instead 12 seek to exclude defendants from using some of the discovery at issue at trial while permitting 13 plaintiffs to use that same evidence if they wish. See generally Bellinger v. Deere & Co., 881 F. 14 Supp. 813, 817 (N.D. N.Y. 1995) (“The extreme sanction of exclusion, however, should only be 15 used where lesser sanctions would be ineffective.”); Kotes v. Super Fresh Food Markets, Inc., 157 16 F.R.D. 18, 20 (E.D. Pa. 1994) (“The exclusion of critical evidence is an extreme sanction which is 17 not normally imposed absent a showing of willful deception or flagrant disregard of a court order 18 by the proponent of the evidence.”). 19 Moreover, both plaintiffs’ briefing and oral argument fail to specifically articulate any 20 harm or prejudice suffered by plaintiffs due to defendants’ alleged conduct. See generally 21 Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982) 22 (“Rule 37(b)(2) contains two standards—one general and one specific—that limit a district 23 court’s discretion. First, any sanction must be ‘just’; second, the sanction must be specifically 24 related to the particular ‘claim’ which was at issue in the order to provide discovery.”); Quinn v. 25 Consolidated Freightways Corp. of Delaware, 283 F.3d 572, 577 (3rd Cir. 2002) (court should 26 evaluate “(1) the prejudice or surprise in fact of the party against whom the excluded witnesses 27 would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which 28 waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of 1 the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with the 2 district court’s order”). 3 In their reply, plaintiffs quote Heath v. F/V ZOLOTOI, 221 F.R.D. 545, 553 (W.D. Wash. 4 2004), stating “Plaintiff has been greatly prejudiced because he has proceeded through this 5 litigation for over two years without knowledge of material information.” (Pls.’ Reply (ECF No. 6 119) at 11.) But in Heath “the trial date [was] June 1, 2004; the discovery cut-off was February 1, 7 2004; and the existence of the documents were not disclosed until January 23, 2004.” Id. Here, it 8 seems plaintiffs had all the discovery at issue no later than defendants’ second supplemental 9 disclosure on December 21, 2021. (Pls.’ Mot. (ECF No. 115) at 6.) There is no trial date, expert 10 discovery does not close until June 1, 2022, and defendants are willing to stipulate to “extending 11 the discovery cut off[.]” (Defs.’ Opp.’n (ECF No. 118) at 5.) Moreover, the court in Heath noted 12 that the plaintiffs there had already hired an expert who prepared a report without the missing 13 discovery. 221 F.R.D. at 553. That is an example of the specific articulation of prejudice that 14 plaintiffs have failed to present here. 15 Additionally, in opposing plaintiffs’ motion, defendants have offered an explanation for 16 their conduct that seems substantially justified and/or harmless. See generally R & R Sails, Inc. 17 v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012) (“If a party fails to provide 18 information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 19 that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the 20 failure was substantially justified or is harmless.”). In this regard, defendants note their initial 21 willingness to enter into a stipulated protective order to commence the production of discovery, 22 the challenges presented by COVID, and their attempts to resolve these disputes with plaintiffs. 23 Defendants do acknowledge two items of evidence which clearly should have been produced 24 earlier. (Defs.’ Opp.’n (ECF No. 118) at 10.) The undersigned shares plaintiffs’ concerns with 25 respect to that discovery. However, plaintiffs have failed to specifically articulate that the 26 sanctions they seek are justified by defendants’ conduct. 27 //// 28 //// 1 CONCLUSION 2 For the reasons stated above and at the February 18, 2022 hearing, plaintiffs’ motion will 3 || be denied without prejudice to renewal. If plaintiffs with to renew their motion, they should 4 | ensure their briefing and argument specifically addresses the discovery item or items at issue, the 5 | harm or prejudice suffered by plaintiffs, the sanction plaintiffs seek, and why that sanction is 6 | justified. Plaintiffs’ argument would likely be helped by also narrowing the universe of discovery 7 || at issue and focusing on those items of discovery that lend the most support to their arguments. 8 Accordingly, upon consideration of the arguments on file and those made at the hearing, 9 || and for the reasons set forth on the record at that hearing and above, IT IS HEREBY ORDERED 10 | that: 11 1. Plaintiffs’ January 26, 2022 motion for sanctions (ECF No. 110) is denied without 12 || prejudice to renewal; and 13 2. Defendants’ February 11, 2022 request for a page limit increase (ECF No. 117) is 14 | denied. 15 || Dated: February 22, 2022 17 18 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 || DLB:6 DB/orders/orders.civil/thomas0903.oah.02 1822 25 26 27 28