Garza et al v. Yuma County et al

Filing 270

ORDER granting in part and denying in part 220 Motion to Compel. The Yuma County defendants shall provide the moving defendants with a copy of the internal investigation report. The time for discovery will not be enlarged to allow for the depositions of Ogden, McGregor, or Felix. The Yuma County defendants' request for sanctions is DENIED. Signed by Judge John W Sedwick on 11/10/11.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

M.M., et al.,
Plaintiffs,
vs.
YUMA COUNTY, et al.,
Defendants.

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2:07-cv-01270 JWS
ORDER AND OPINION
[Re: Motion at Docket 220]

I. MOTION PRESENTED
At docket 220, defendants Jose Piscoya, Steve Linde, and Northend Health
Associates (collectively “moving defendants”) move to compel production of an internal
investigation report pertaining to the events giving rise to this lawsuit. Defendants
Yuma County Jail District, Ralph E. Ogden (“Ogden”), Michael McGregor (“McGregor”),
Robert Kelly, Joe Franklin, Rafael Felix (“Felix”), Benjamin Wilson, and Donna Knolle
oppose the motion at docket 234 (collectively “Yuma County defendants”). The moving
defendants’ reply is at docket 241, and an amended reply is at docket 250. Oral
argument was requested, but would not assist the court.

II. BACKGROUND
The deadline for all discovery was September 30, 2010.1 The court has, on three
separate occasions, enlarged the time for discovery to allow the parties to conduct
specified depositions.2 During recently conducted depositions, the moving defendants
became aware of a report prepared by a detective at the Yuma County Sheriff’s
Department after an internal investigation into the events giving rise to this lawsuit.
Counsel to the moving defendants verbally requested a copy of the report and ultimately
sent a letter to counsel for the Yuma County defendants to the same effect.3 Counsel to
the Yuma County defendants initially indicated that the report was confidential and
privileged, and stated that the report was outside the scope of required initial
disclosures under Rule 26. The moving defendants now seek to compel production of
the report, despite never having prepared a formal request for production.
III. DISCUSSION
A. Motion to Compel Production of the Report
The report is within the scope of discovery.4 The moving defendants argue that
the Yuma County defendants should be compelled to produce the internal investigation
report even though the deadline for written discovery has passed because they were
unaware that the report existed until recently. Moreover, the moving defendants argue

1

Doc. 125 at 2.

2

Doc. 168; doc. 183; doc. 204.

3

Doc. 220-1 at 2.

4

See Fed. R. Civ. P. 26(b)(1) (permitting discovery of “any nonprivileged matter that is
relevant to any party’s claim or defense”).

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that an order compelling discovery is appropriate even though they never made a formal
request for production of the report.
1. The Nature of the Moving Defendants’ Request for Production
The Yuma County defendants maintain that the present motion should be denied
because the moving defendants never propounded a formal request for production of
the report. The Yuma County defendants cite various non-binding authority in support
of their position.5 Those cases turn on the notion that informal requests are not
contemplated by the Federal Rules of Civil Procedure and, therefore, should not form
the basis of a motion to compel.
The moving defendants cite a non-binding opinion from the District of Kansas in
which a motion to compel was granted even though it was based on an informal
discovery request.6 In that case, the court determined that the informal nature of the
discovery request was not fatal because the opposing party responded.7 The court
finds its rationale persuasive. Here, the Yuma County defendants responded to the
moving defendants’ informal request for the investigation report by asserting that the
document was not a required disclosure under Rule 26(a)(1)(A)(ii), and “appeared . . .
privileged.”89 “[W]hen one party responds to another’s informal request, resort to a

5

E.g., Stuid v. CIGNA Corp., 203 F.R.D. 227, 228 (D. V.I. 2001); Sithon v. Maritime Co.
v. Mansion, 1998 WL 182785 (D. Kansas Apr. 10, 1998).
6

Lujan v. Exide Technologies, No. 10-4023, 2011 WL 1594952, at *3 (D. Kansas Apr. 27,

2011).
7

Id.

8

Doc. 234 at 25–26.

9

Doc. 241-1

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motion to compel is an acceptable next step.”10 Although a formal request for
production would have been preferable, on these facts, the nature of the moving
defendants’ request does not preclude their motion to compel.
2. The Timing of the Motion
The scheduling and planning order called for discovery to be completed by
September 30, 2010.11 It also provided that “[a]ll motions under the discovery rules
must be filed no later than thirty (30) days following the date set for the closure of a
class of discovery.”12 Rule 16 provides that “[a] schedule may be modified only for good
cause and with the judge’s consent.”13 The moving defendants maintain that they were
unaware of the report until certain Yuma County defendants were deposed–“only
recently.”14 The court concludes that there is good cause to allow the present motion.
Because the internal investigation report is within the scope of discovery, the moving
defendants are entitled to it.
B. Request to Enlarge the Time For Discovery to Conduct Additional Depositions
The moving defendants also seek to enlarge the time for discovery to depose
Ogden, McGregor, and Felix. The scheduling and planning order provides that “[a]
deposition may be taken after the close of discovery only by leave of court obtained
upon a showing of good cause why the deposition was not taken prior to the close of
10

Exide Technologies, 2011 WL 1594952, at *3.

11

Doc. 125 at 2.

12

Doc. 125 at 3.

13

Fed. R. Civ. P. 16(b)(4).

14

Doc. 220 at 2. See also doc. 220-2 at 2.

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discovery.”15 As discussed above, the court has granted three previous extensions of
the time for discovery to allow the parties to conduct specified depositions.16
The moving defendants now seek to enlarge the time for discovery in order to
depose three individuals who have been parties to the action since it was filed in 2007.17
The moving defendants have had ample time to depose them. Moreover, counsel for
the moving defendants recently stipulated to an extension of time for discovery “for the
limited purpose of taking the remainder of the already agreed upon depositions,”18 but
Ogden, McGregor, and Felix were not among the agreed upon deponents. Even more
troubling is the fact that counsel for the moving defendants made the stipulation without
regard to its content.19 The court concludes that the moving defendants have not shown
good cause to conduct additional depositions beyond the close of discovery.
C. Request for Sanctions
The Yuma County defendants request sanctions pursuant to Rule 37.20 Because
part of the motion has merit, sanctions are inappropriate. The court declines to impose
sanctions based on the moving defendants’ unsuccessful attempt to enlarge the time for
discovery.

15

Doc. 125 at 2–3.

16

Doc. 168; doc. 183; doc. 204.

17

See doc. 1 at 1. The moving defendants initially sought to conduct even more
depositions, but withdrew a substantial portion of their request. Doc. 250.
18

Doc. 202 at 1.

19

Doc. 234 at 22.

20

Id. at 8.

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IV. CONCLUSION
For the reasons above, the motion at docket 220 is GRANTED in part and
DENIED in part as follows:
1) The Yuma County defendants shall provide the moving defendants with a
copy of the internal investigation report.
2) The time for discovery will not be enlarged to allow for the depositions of
Ogden, McGregor, or Felix.
The Yuma County defendants’ request for sanctions is DENIED.
DATED this 10th day of November 2011.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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