Knickerbocker v. United States Department of Interior, Death Valley National Park, National Park Service

Filing 78

ORDER AFTER INFORMAL CONFERENCE re: Discovery Dispute, signed by Magistrate Judge Jennifer L. Thurston on 4/24/2019t. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISSAM ELIE KNICKERBOCKER,

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Plaintiff,

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v.

Case No.: 1:16-cv-01811 - DAD - JLT
ORDER AFTER INFORMAL CONFERENCE
RE: DISCOVERY DISPUTE
(Doc. 76)

UNITED STATES DEPARTMENT OF
INTERIOR, et al.,

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Defendants.
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The Court held an informal telephone conference regarding two disputes raised by

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plaintiff’s counsel, Mr. Knickerbocker. Taken in reverse order, Mr. Knickerbocker complains that

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the court reporter has refused to provide him “an electronic, non-downloadable1, version of [two]

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deposition transcripts” to allow two witnesses to review them and to make changes, if necessary.

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Mr. Knickerbocker states that the court reporter’s refusal has thwarted the witnesses’ ability to

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conduct the review.

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Mr. Frueh reported that the Court reporter has offered to provide a hard-copy of the

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transcript to a location convenient to the witnesses for their review and, indeed, has offered to

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provide the original transcript to Mr. Knickerbocker to assist in the review with one witness, Mr.

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Henderson. Mr. Frueh contends that the dispute concerns only Mr. Knickerbocker’s unwillingness

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Despite inquiry at the conference, the Court still is not clear as to exactly what “an electronic, non-downloadable”
copy of the transcript is. Mr. Knickerbocker suggested this could mean a CD with the document in ASCII format.
Exactly how that would allow review, was never explained.
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to pay the court reporter for a copy of the transcript and wishes the electronic copy, so he can

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avoid paying the fee.
At this time, the Court cannot know which of these versions is correct but noted at the

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conference and does so again here, that there is no indication that the defendant has failed in any

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respect related to the transcripts, and it appears the Court lacks jurisdiction over the court reporter.

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Finally, if, in fact, this is an effort to avoid paying the court reporter for his/her work, the Court

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will have little sympathy to a motion to force the reporter to do anything absent payment of the fee.

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Because the facts are disputed, however, the plaintiff may file his motion to compel related to the

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actions of the court reporter. Such a motion will be entertained only upon a showing that the Court

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has jurisdiction over the court reporter and that this is not an effort to deny payment to the court

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reporter.
As to the second issue, Mr. Knickerbocker complains that the defense’s expert has failed to

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provide documents, such as the documents upon which the expert relied and copies of articles

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written by the expert, along with his report. Notably, Fed.R.Civ.P 26 (a)(2)(B) speaks only to

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“exhibits” upon which the expert will rely when describing the documents the expert must produce

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along with the report. Fed.R.Civ.P.(a)(2)(B)(iii). Mr. Frueh reported that the expert will not rely

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upon any exhibits and, consequently, the expert did not produce the exhibits. Thus, the plaintiff has

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not shown that the expert’s report fails to comply with the Rule and the claim that a discovery

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“dispute” exists, is unfounded.

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Finally, during the conference, Mr. Knickerbocker complained that the defendants failed to

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respond to discovery propounded sometime in the fall of 2018. This verbal complaint was the first

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time he had mentioned this to Mr. Frueh. Thus, the Court declined to address this situation. If

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there is a true dispute, Mr. Knickerbocker SHALL engage in a meaningful meet-and-confer

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conference with his opponent.

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///

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If this fails to satisfy the plaintiff, counsel SHALL seek an informal conference with the

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Court at which the Court will determine whether to authorize the plaintiff to file a motion to

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compel.2

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IT IS SO ORDERED.

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Dated:

April 24, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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In making these statements, the Court makes no comment as to the timeliness of such a motion but expresses concern
that Mr. Knickerbocker admitted the responses were due in October 2018.

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