BERNARD G. SKOMAL, Magistrate Judge.
Plaintiff filed a Motion to Disregard Timeliness and Misdirection Objections Submitted by Defendants on Discovery Dispute ("Motion for Leave to File Untimely Motion to Compel") on October 21, 2015. (ECF No. 63.) In this motion, Plaintiff seeks relief from the Court's thirty day deadline to bring a motion to compel regarding certain discovery responses and objections from Defendants. Defendants filed their opposition on October 30, 2015, in which they argue that Plaintiff has not shown excusable neglect, and should not be permitted to file an untimely motion to compel. (ECF No. 65.)
On March 20, 2015, this Court issued a Case Management Conference Order Regulating Discovery and Related Dates, which set the discovery deadline for July 17, 2015. (ECF No. 36 at 1.) On June 3, 2015, Plaintiff served requests for production of documents on Defendant Hernandez, and nonparties V. Sosa and R. Olsen. (ECF No. 65-1 ¶ 2.) Defendants responded to Plaintiff's discovery requests on July 3, 2015, wherein they objected to requests for disciplinary citations and staff complaints as subject to the official information privilege. (Id. at ¶ 3.) Defendants also objected to the request for production to both V. Sosa and R. Olson because Plaintiff had not served them with a subpoena, as is required for nonparties under Federal Rule of Civil Procedure 45. (Id.) On July 13, 2015, Plaintiff delivered a meet-and-confer letter to defense counsel outlining a number of issues regarding their discovery responses and objections. (Id. at ¶ 4.) Defendants responded in writing on July 30, 2015, and Plaintiff responded again on August 5, 2015. (Id.)
On September 17, 2015 (nunc pro tunc September 14, 2015), Plaintiff filed a Motion to Compel Defendants to Arrange a Telephonic Conference. (ECF No. 58.) As a result, the Court set a telephonic discovery dispute conference for October 9, 2015. (ECF No. 60.) During that call, Plaintiff notified the Court of his ongoing discovery disputes with Defendants. As a result of that call, the Court granted Plaintiff permission to file the instant motion. (ECF Nos. 61.)
After reading briefs from Plaintiff and Defendants, the Court requested Defendants file the privilege log provided to Plaintiff for any documents withheld on the basis of privilege. (See ECF No. 70.) Plaintiff filed a reply brief on January 8, 2016 objecting to the privilege log filed by Defendants.
Plaintiff seeks permission to compel certain documents requested from Defendant Hernandez such as disciplinary records and investigations, to which Defendants objected on the basis of the Official Information privilege and privacy concerns.
Fed. R. Civ. P. 6(b)(1) provides a request for an extension made after the deadline can be granted upon a showing of "excusable neglect." (emphasis added) Here, because Plaintiff is seeking to file a motion to compel after the thirty day deadline set forth in this Court's Chambers' Rules, the excusable neglect standard applies. The U.S. Supreme Court has established a four-part balancing test to determine "excusable neglect[:]" (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith. See Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
Defendants argue that they will be prejudiced because of the dispositive motion deadline that was approaching when they filed their opposition brief. (ECF No. 65 at 7.) However, prejudice to defendants "requires greater harm than simply that relief would delay resolution of the case." Lemoge, 587 F.3d at 1196 (citations omitted). Moreover, the Court vacated the deadline for pretrial motions on November 23, 2015. (See ECF No. 69.) The Court, therefore, finds that Defendants will not be prejudiced if Plaintiff is allowed to bring an untimely motion to compel.
Because this discovery dispute occurred on July 3, 2015 when Defendants served their responses and objections to Plaintiff's discovery requests, any motion to compel should have been filed by August 3, 2015. During that time, however, Plaintiff was exchanging multiple letters with Defendants to attempt to resolve the dispute. Plaintiff first communicated these discovery disputes with the Court when he requested a telephonic conference on September 17, 2015 (nunc pro tunc September 14, 2015). (ECF No. 58.) Given Plaintiff's continued efforts to meet and confer with Defendants regarding the discovery responses at issue and his status as a pro se litigant, the Court does not think a delay of six weeks is significant. This factor also weighs in favor of Plaintiff.
Plaintiff offers a number of reasons for his delay in bringing the motion to compel, some of which are unpersuasive.
Nothing suggests that plaintiff acted in bad faith, that is, from "deviousness or willfulness." Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000). The Court finds that Plaintiff's conduct was in good faith, and he diligently sought relief from the Court regarding his discovery dispute with Defendants.
The Court will allow for briefing on a motion to compel discovery regarding the documents requested from Defendant Hernandez and withheld on the basis of privilege. A briefing schedule is set forth at the end of this order.
Plaintiff also seeks permission to file a motion to compel production of documents by V. Sosa and R. Olsen, neither of whom are parties in this case. Under Federal Rule of Civil Procedure 45(a)(1)(c), any party may serve a subpoena commanding a nonparty "to produce documents, electronically stored information, or tangible things[.]" Fed. R. Civ. P. 45(a)(1)(C). The service of the subpoena demanding the document is a necessary prerequisite to a court compelling a nonparty's obedience with a subpoena because, in the absence of a subpoena, the other party has no duty to respond. Fed. R. Civ. P. 45(a)(1)(D) (creating duty to respond).
Accordingly, even if this Court grants Plaintiff's request and allows him to bring a motion to compel regarding these documents, the Court cannot compel R. Olsen or V. Sosa to comply with a discovery request under Rule 26. Instead, the Court must determine whether it will allow Plaintiff to subpoena V. Sosa and R. Olsen, despite the close of fact discovery. As above, the Court will apply the Pioneer factors to determine whether an extension of fact discovery is warranted.
As described more fully above in section (b)(1), prejudice "requires greater harm than simply that relief would delay resolution of the case." Lemoge, 587 F.3d at 1196 (citations omitted). Because the only prejudice to Defendants is further delay, this factor weighs in favor of Plaintiff.
The discovery dispute giving rise to the proposed motion to compel occurred on July 3, 2015, when Defendants served their responses and objections to Plaintiff's discovery requests. Plaintiff notified the Court of the issue regarding the document requests to V. Sosa and R. Olsen on September 17, 2015 (nunc pro tunc September 14, 2015). However, unlike the discovery dispute regarding privileged documents, no amount of meeting and conferring could remedy Plaintiff's error in improperly serving this discovery. Moreover, the process of subpoenaing R. Olsen and V. Sosa will delay proceedings much longer than briefing on a motion to compel. Given these additional considerations, this factor weighs in favor of Defendants.
Although Plaintiff used the wrong method of discovery initially, he was put on notice of this error two weeks before discovery closed. In those remaining two weeks, Plaintiff had sufficient time to research the proper method of discovery for nonparties and serve the subpoenas. Indeed, in that time Plaintiff propounded what he describes as "follow up discovery," none of which included subpoenas to R. Olsen or V. Sosa. (See ECF No. 45 at 2.)
Plaintiff could have also requested more time to serve those subpoenas. Instead, he sought an extension of discovery for a second set of discovery propounded on July 13, 2015. (ECF No. 45 at 2-3.) Plaintiff's second request for an extension of discovery likewise made no mention of the need to serve subpoenas or remedy the discovery propounded to R. Olsen or V. Sosa. (See ECF No. 53.) This factor, therefore, weighs in favor of Defendants.
The Court finds that although Plaintiff's initial error was unintentional, he was not diligent in correcting that error. Bad faith is defined as "deviousness or willfulness." Bateman., 231 F.3d at 1225. Plaintiff was able to propound additional discovery on July 13, 2015, which did not include subpoenas to R. Olsen or V. Sosa. The decision not to serve subpoenas with that discovery was intentional, or willful. Therefore, this factor weighs in favor of Defendants.
Because a motion to compel would be futile, the Court
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Second, Plaintiff blames Defendants for not setting up a call with the Court for a discovery dispute, per his request on August 5, 2015. (ECF No. 63 at 3.) However, a review of the record shows that Plaintiff made no clear request of Defendants. Plaintiff's August 5, 2015 communication states, "As to these issues, I will be requesting you set up a telephonic conference with the court in about two weeks after I receive your responses to the discovery requests I gave you on July 13, 2015 when you were here for the deposition. That way I can first meet and confer with you on my issues from that." (ECF No. 58 at 2:27-3:3.) In no way does this communication explicitly request anything of Defendants, nor does it give rise to any duty of Defendants to follow up with Plaintiff.
