Opinion
No. CIV. S-00-978 FCD/JFM.
January 6, 2006
MEMORANDUM AND ORDER
This matter is before the court on plaintiff Lawana Porter's ("plaintiff") motion to re-open non-expert discovery in this sexual harassment and retaliation action. Pursuant to the Ninth Circuit's decision on August 5, 2005, reversing this court's grant of summary judgment to defendant California Department of Corrections ("defendant"), this case was remanded for trial. Porter v. California Dep't of Corrections, 419 F.3d 885 (9th Cir. 2005). The court issued an Amended Status (Pretrial Scheduling) Order on November 21, 2005. Said order re-set the dates for expert disclosures, the final pretrial conference and trial but retained the previously set date of December 28, 2001 for the close of non-expert discovery. The court, however, indicated that either party could move to re-open discovery under Federal Rule of Civil Procedure 16. (Am. Status Order at 1 n. 1.)
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. Local Rule 78-230(h).
Plaintiff now so moves, arguing that discovery should be re-opened because in the four years since the close of discovery, "significant changes" have occurred including: (1) plaintiff has retired from defendant's employ and (2) plaintiff has retained new counsel who have a "different assessment of the evidence and believe additional percipient witnesses . . . should be deposed." (Pl.'s Mem. of P. A., filed Dec. 1, 2005, 2:15, 20-21.) On this basis, plaintiff seeks an order re-opening discovery to allow supplemental written discovery responses and to permit the depositions of additional percipient witnesses. Defendant opposes the motion, arguing that good cause does not exist to re-open discovery as the case and its parameters have been previously established by the parties' discovery prior to the original discovery cut-off date.
Under Rule 16, a pretrial order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed.R.Civ.P. 16, advisory committee's notes (1983 amendment)). The "good cause" standard set forth in Rule 16 primarily focuses upon the diligence of the party requesting the amendment. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Id.
Plaintiff's reliance on U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995) for the applicable standard is misplaced. While the case involved the propriety of re-opening discovery, it did not address the standard under Rule 16.
Here, the crux of plaintiff's motion is her new counsel's desire to have a "second bite at the apple." Plaintiff's intent is made clear in the motion: "While plaintiff's original counsel had conducted discovery based on its own evaluation of the case, plaintiff's new counsel, with guidance from the Ninth Circuit's decision, has identified some additional percipient witnesses who should be deposed prior to this case proceeding to trial." (Pl.'s Mem. of P. A. at 5:2-5.) Neither the retention of new counsel nor a Ninth Circuit remand decision constitutes good cause to re-open discovery under Rule 16. The party's diligence in seeking discovery must be demonstrated. Johnson, 975 F.2d at 609 ("If [the] party was not diligent, the inquiry should end.") Here, plaintiff simply asserts that her new counsel believes, in light of the Ninth Circuit's decision, that additional percipient witness depositions are necessary. Importantly, plaintiff fails to describe the nature of this discovery, including the witnesses' names and their relationship to the issues presented in this case, and why said discovery could not have been obtained previously. Absent this showing, relief under Rule 16 is not warranted.
With respect to plaintiff's retirement, plaintiff argues that discovery is necessary regarding her "damages claims." Clearly, any relevant discovery pertaining to plaintiff's damages is well within plaintiff's own custody and knowledge. Defendant does not seek additional discovery from plaintiff as a result of her retirement, and thus, there is no basis to modify the court's order as a result of plaintiff's retirement.
Finally, the court notes that to the extent plaintiff seeks supplemental discovery responses, an order of the court is likewise unnecessary. Pursuant to Federal Rule of Civil Procedure 26(e), parties are under a "duty to supplement" or to "seasonably [a]mend" previous disclosures or responses if the party "learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1) and (2).
For all of these reasons, plaintiff's motion to re-open discovery is DENIED. The court's Amended Status (Pretrial Scheduling) Order, filed November 21, 2005, is affirmed.
IT IS SO ORDERED.