Morning Star Packing Company, et al v. SK Foods, et al

Filing 303

ORDER signed by District Judge Kimberly J. Mueller on 1/10/2017 GRANTING 298 Motion to Reopen Discovery to support preparation for trial and DENYING 298 Motion to Reopen Discovery to Supplement the record before the court on the pending motions for Summary Judgment. Discovery is REOPENED as described in this order with a cutoff date of 180 days from the date of the court's filing of its order on summary judgment. (Donati, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

THE MORNING STAR PACKING
COMPANY, et al.,
Plaintiffs,

13

ORDER
v.

14
15

No. 2:09-cv-00208-KJM-EFB

SK FOODS, L.P, et al.,
Defendants.

16
17

In January 2009, plaintiffs Morning Star Packing Company, Liberty Packing

18
19

Company, California Fruit & Tomato Kitchens, LLC, and The Morning Star Company

20

(collectively Morning Star), all low-cost producers in the tomato processing industry, filed suit

21

against several defendants, including competitors Ingomar Packing Company and Ingomar’s

22

president Greg Pruett, Los Gatos Tomato Products and its president Stuart Woolf, and SK Foods

23

and its president Scott Salyer. Discovery closed in February 2015, but Morning Star has moved

24

to reopen discovery for the limited purpose of taking discovery from Scott Salyer, one of the key

25

defendants and witnesses in this suit.
Defendants disagree that discovery should be reopened, and oppose Morning

26
27

Star’s motion. The court submitted the motion without a hearing on July 25, 2016, ECF No. 302,

28

/////
1

1

and for reasons explained below, GRANTS IN PART Morning Star’s motion to reopen

2

discovery.

3

I.

BACKGROUND AND PROCEDURAL HISTORY

4

Morning Star commenced this action on January 22, 2009, filed a first amended

5

complaint on January 29, 2010, and filed the operative second amended complaint on

6

December 16, 2010. ECF Nos. 1, 100, 116.

7

After several rounds of motion practice, the court set a pre-trial status conference

8

for May 30, 2013, ECF No. 144, and the parties submitted a joint status report on May 16, 2013,

9

ECF No. 143. In the report, the parties noted Scott Salyer, as a defendant in the criminal case of

10

United States v. Salyer, Case No. 10-cr-00061 (E.D. Cal. filed Feb. 18, 2010)1 would assert his

11

Fifth Amendment privilege against self-incrimination in response to discovery and otherwise

12

would not respond to Morning Star’s suit. Joint Status Report (JSR) 2–3, ECF No. 143.

13

The court noted Salyer’s position in its scheduling order and ordered Salyer’s

14

counsel to notify the court within seven days after restitution proceedings concluded. Scheduling

15

Order 2, ECF No. 148. The court otherwise ordered all non-expert discovery be completed by

16

March 28, 2014. Id. After several stipulations to continue the completion date for discovery, see

17

ECF Nos. 160, 162, 178, all non-expert discovery was to be completed by December 8, 2014,

18

ECF No. 181. The court extended discovery one more time, from December 8, 2014 to

19

February 11, 2015, ECF No. 220.

20

On or about May 15, 2015, three months after discovery ended, defendants Greg

21

Pruett and Ingomar (collectively Ingomar) filed a motion for summary judgment. ECF No. 250.

22

/////

23
24
25
26
27
28

1

The court sua sponte takes judicial notice of matters in the criminal case. A court “may
take judicial notice of matters of public record, including duly recorded documents, and court
records available to the public through the PACER system via the internet.” Peviani v. Hostess
Brands, Inc., 750 F. Supp. 2d 1111, 1116 (C.D. Cal. 2010) (citing C.B. v. Sonora Sch. Dist.,
691 F. Supp. 2d 1123, 1138 (E.D. Cal. 2009) (internal citations omitted)). The PACER system is
a court generated database that provides public access to court electronic records. Black’s Law
Dictionary 550 (4th pocket ed. 2011).
2

1

Defendants Los Gatos and Stuart Woolf (collectively Los Gatos) filed a motion for summary

2

judgment as well, ECF No. 285, and both motions are currently pending.

3

On March 31, 2016, the district judge then assigned to the criminal case adopted in

4

full the magistrate judge’s findings and recommendations on restitution. See United States v.

5

Salyer, ECF 685. Seventy-six days later, on June 15, 2016, Salyer’s counsel notified the court of

6

the completion of restitution proceedings. ECF No. 297. Two days later, Morning Star moved to

7

reopen discovery and set a new cutoff date of October 31, 2016. Mot., ECF No. 298. Defendants

8

Scott Salyer, Ingomar Packing Company, and Los Gatos Tomato Products oppose Morning Star’s

9

motion. Salyer Opp’n, ECF No. 299; Ingomar and Los Gatos Joint Opp’n, ECF No. 300.

10

Morning Star has replied. Reply, ECF No. 301.

11

II.

12

DISCUSSION
Morning Star moves to reopen discovery for the limited purpose of taking Salyer’s

13

deposition, propounding one set each of interrogatories, requests for admission and document

14

requests, and engaging in appropriate follow-up discovery if necessary. Mot. at 2. Morning Star

15

contends this discovery is needed to prepare the case for trial and potentially to supplement the

16

evidence before the court on the pending motions for summary judgment. Id. at 4. Morning Star

17

contends good cause exists to grant its motion because of its prior inability to conduct discovery

18

against Salyer. Id. at 2–3.

19

Ingomar and Los Gatos contend no good cause exists to reopen discovery because

20

the very restitution proceedings that prompted Salyer to invoke his Fifth Amendment privilege

21

were of Morning Star’s own making. Joint Opp’n at 2. Further, Ingomar and Los Gatos contend

22

Morning Star does not identify any specific evidence it believes it can obtain if the court allows

23

the requested discovery. Id. at 3. Lastly, Ingomar and Los Gatos contend further discovery, if

24

granted, would prejudice defendants by requiring the parties to expend additional resources and

25

suffer additional delay. Id. at 7.

26

Defendant Salyer opposes Morning Star’s motion because at the time of filing his

27

opposition he was in the custody of the federal Bureau of Prisons, in community confinement at a

28

halfway house in Fresno, California. Salyer Opp’n at 1. He argues his need to conform to the
3

1

halfway house schedule, rules, and regulations precluded him from effectively participating in

2

discovery. Id. at 1–2. Defendant Salyer also contends discovery should be precluded because he

3

remains at risk of prosecution by public authorities in the principality of Andorra, who are

4

investigating Salyer’s possession of funds connected to a criminal fraud offense. Id. at 2. The

5

funds are the same funds Salyer agreed to forfeit in his plea agreement with the government

6

resolving his criminal case in this district. Id., Ex. 1 at 6.

7

The court first addresses Morning Star’s request related to supplementing the

8

record on the pending summary judgment motions, and then discusses Morning Star’s request as

9

related to supplementing the record for trial.

10

A.

11

Request to Supplement the Record on Pending Summary Judgment Motions
Morning Star seeks further discovery in part to supplement the evidence before the

12

court on the pending motions for summary judgment. Mot. at 4. Defendants Ingomar and Los

13

Gatos contend Morning Star has not identified any specific evidence Morning Star believes it can

14

obtain through discovery from Salyer that it has not already obtained elsewhere. Opp’n at 7.

15

When seeking additional discovery in connection with a summary judgment

16

motion, the moving party must proffer sufficient facts to show the evidence sought exists, and

17

that such evidence would prevent summary judgment. Chance v. Pac-Tel Teletrac Inc., 242 F.3d

18

1151, 1161 (9th Cir. 2001). In Chance, after discovery ended, and before the district court ruled

19

on a pending summary judgment motion, the plaintiff sought to depose several witnesses the

20

defendant had identified in a joint witness list submitted to the court. Id. After the parties filed a

21

joint stipulation regarding their dispute over the witness depositions, and before resolving the

22

dispute, the district court resolved the pending motion in the defendant’s favor. Id. The plaintiff

23

appealed the summary judgment decision to the Ninth Circuit, contending the district court erred

24

by depriving plaintiff of the opportunity to discover additional crucial evidence that would have

25

“assisted it in convincing the district court that disputed facts existed precluding summary

26

judgment.” Id. The Ninth Circuit affirmed the district court, concluding it did not abuse its

27

/////

28

/////
4

1

discretion for several reasons, including that the plaintiff “never actually filed a Rule 56(f)2

2

motion to delay consideration of the pending summary judgment motion,” and did not “proffer to

3

the district court—or make a showing here on appeal—sufficient facts to show that evidence

4

which it sought existed and would prevent summary judgment.” Id. Only if the plaintiff had

5

diligently pursued its previous discovery opportunities, and shown how allowing additional

6

discovery would have precluded summary judgment, would the district court have abused its

7

discretion in granting summary judgment to the defendant. Id. at 1161 n.6 (citing Byrd v. Guess,

8

137 F.3d 1126, 1131 (9th Cir. 1998)). In the end, the district court’s summary judgment decision

9

was affirmed. Id. at 1161.

10

Here, to support its motion to reopen discovery, Morning Star cites to the briefs it

11

already filed in opposition to Ingomar’s and Los Gatos’s motions for summary judgment. See

12

Mot. at 8 (citing Pls.’ Opp’n to Ingomar’s Mot. Summ. J., ECF No. 260; Pls.’ Opp’n to Los Gatos

13

Mot. Summ. J., ECF No. 289). But as in Chance, Morning Star “never actually filed a Rule

14

56[(d)] motion to delay consideration of the pending summary judgment motion.” Chance,

15

242 F.3d at 1161. Further, similar to the plaintiff in Chance, Morning Star proffers no additional

16

facts it could obtain that would alter the result on summary judgment. See id. The court denies

17

Morning Star’s request to reopen discovery to supplement the record on summary judgment. See

18

Chance, 242 F.3d at 1161; see also Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d

19
20
21
22
23
24
25

2

Rule 56 has since been amended, and the analogous provision to Rule 56(f) is now Rule
56(d); Greer v. Lockheed Martin Corp., 855 F. Supp. 2d 979, 985 (N.D. Cal. 2012). Rule 56(d)
states in part,
d) When Facts Are Unavailable to the Nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court
may:
(1) defer considering the motion or deny it;

26

(2) allow time to obtain affidavits or declarations or to take
discovery; or

27

(3) issue any other appropriate order.

28

Fed. R. Civ. P. 56(d).
5

1

1271, 1278 (9th Cir. 1990) (“The district court does not abuse its discretion by denying further

2

discovery if . . . the movant fails to show how the information sought would preclude summary

3

judgment.”).

4

B.

5

Request to Supplement Record for Trial
Defendants also oppose Morning Star’s request for discovery to supplement the

6

record in preparation for trial. Joint Opp’n at 2; Salyer Opp’n at 1. In particular, Salyer contends

7

further discovery should be precluded because of his fear of prosecution by Andorran public

8

authorities, and the logistical challenges posed by his community confinement in Fresno

9

identified as ending on November 30, 2016. Salyer Opp’n at 1, 2; Salyer Opp’n Ex. 1 at 6.3

10

Ingomar and Los Gatos contend Morning Star shows no good cause to reopen discovery, Morning

11

Star points to no new information that would likely be uncovered in discovery, and further

12

discovery would be prejudicial. Joint Opp’n at 2–7.

13

1.

14

Salyer’s Opposition
a)

Fear of Foreign Prosecution

15

Salyer contends further discovery should be precluded because of his fear of

16

foreign prosecution. Salyer Opp’n at 2. As noted, Salyer contends Andorran officials have

17

accused him of having in his possession money proceeds of a criminal fraud offense, transmitting

18

those proceeds to Andorra, and attempting to purchase property while disguising and concealing

19

the illicit origin of the funds. Id. Ex. 1 at 6. According to a letter the United States Department of

20

Justice (DOJ) sent Mr. Salyer on behalf of Andorran officials, Salyer was advised that under

21

Andorran law he was entitled “to be informed about the accusation, not to admit guilt, not to

22

otherwise incriminate himself, to be defended and assisted by a lawyer, to meet with that lawyer

23

before making any statement, and to decline making any statement.” Id. Because of the pending

24

Andorran investigation and accusation, Salyer contends he must and will assert his Fifth

25

Amendment privilege in response to any requests for discovery in this case. Salyer Opp’n at 2.

26
27
28

3

As of the date of this order, Salyer has not notified the court his circumstances have
changed, or that Salyer has been released from confinement.
6

1

Morning Star contends Salyer cannot claim a privilege due to the threat of foreign prosecution

2

under the circumstances presented here. Reply at 3. In particular, Morning Star contends

3

“nothing. . . suggest[s] any possibility of . . . prosecution against Salyer in the U.S.” Id.

4

The Fifth Amendment privilege against self-incrimination “‘can be asserted in any

5

proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory,’ in which

6

the witness reasonably believes that the information sought, or discoverable as a result of his

7

testimony, could be used in a subsequent state or federal criminal proceeding.” United States v.

8

Balsys, 524 U.S. 666, 672 (1998) (citing Kastigar v. United States, 406 U.S. 441, 444–45 (1972)).

9

“Criminal proceeding,” as the Supreme Court noted in Balsys, does not include a prosecution

10

initiated by a foreign sovereign, id. at 674; accordingly, one cannot invoke a Fifth Amendment

11

privilege if its only basis is a “real and substantial” fear of foreign prosecution, id. at 700.

12

In Balsys, the plaintiff declined to testify at a deposition in response to a DOJ

13

subpoena because of a purported fear of foreign prosecution. Id. at 669. The Second Circuit

14

approved the plaintiff’s assertion, holding a witness with a real and substantial fear of prosecution

15

by a foreign country may assert a Fifth Amendment privilege to avoid giving testimony in a

16

domestic proceeding, even if the witness has no valid fear of a criminal prosecution in this

17

country. Id. at 670–71. In reversing the Second Circuit, the Supreme Court held to the contrary,

18

that the “concern with foreign prosecution is beyond the scope of the Self–Incrimination Clause.”

19

Id. at 669. Reading the Fifth Amendment in context, taking into account the privilege against

20

self-incrimination, the Supreme Court concluded the privilege applied only in the face of the

21

government obligated to recognize such a right, namely the United States, and not a foreign

22

government. Id. at 673–74. The plaintiff’s assertion therefore could not stand. Id. at 700.

23

The Supreme Court did, however, articulate a narrowly drawn circumstance in

24

which one could invoke the Fifth Amendment privilege based on fear of foreign prosecution:

25
26
27
28

This is not to say that cooperative conduct between the United
States and foreign nations could not develop to a point at which a
claim could be made for recognizing fear of foreign prosecution
under the Self–Incrimination Clause as traditionally understood. If
it could be said that the United States and its allies had enacted
substantially similar criminal codes aimed at prosecuting offenses
of international character, and if it could be shown that the United
7

1

6

States was granting immunity from domestic prosecution for the
purpose of obtaining evidence to be delivered to other nations as
prosecutors of a crime common to both countries, then an argument
could be made that the Fifth Amendment should apply based on
fear of foreign prosecution simply because that prosecution was not
fairly characterized as distinctly ‘foreign.’ The point would be that
the prosecution was as much on behalf of the United States as of the
prosecuting nation, so that the division of labor between evidence
gatherer and prosecutor made one nation the agent of the other,
rendering fear of foreign prosecution tantamount to fear of a
criminal case brought by the Government itself.

7

Id. at 698–99. Because the plaintiff’s case in Balsys did not fit within the exception, the plaintiff

8

could not invoke the privilege despite his fear of foreign prosecution. Id. at 700. The Court

9

reversed the Second Circuit and remanded the case for further proceedings consistent with its

2
3
4
5

10

opinion. Id.
Relying on Balsys, a sister court recently concluded a “pending Italian criminal

11
12

investigation” could not justify a witness’s invocation of the Fifth Amendment privilege in a

13

domestic civil case in which a plaintiff sued the witness’s company for a breach of contract.

14

Prime Media Grp., LLC v. Acer Am. Corp., No. 12–05020, 2015 WL 527836, at *3 (N.D. Cal.

15

Feb. 6, 2015). That decision aligns with the Ninth Circuit’s unpublished but persuasive opinion

16

in Childs, in which the court concluded a plaintiff challenging his pending extradition on a

17

Mexican arrest warrant could not invoke the privilege against self-incrimination in the face of an

18

American law enforcement official’s interrogation that related “solely to a foreign prosecution.”

19

Childs v. Stafford, 551 F. App’x 353, 354 (9th Cir. 2014) (citing Balsys, 524 U.S. at 669).4
Here, Salyer’s Fifth Amendment assertion rests solely on his fear of prosecution

20
21

by Andorran public authorities. Salyer Opp’n Ex. 1 at 6. While the DOJ letter sent on Andorra’s

22

behalf raises the possibility of a partnership between the United States and Andorra, this

23

possibility is mere speculation in the absence of any evidence that the United States and Andorran

24

public authorities are working together in the Andorran investigation. Salyer has not shown his

25
26
27
28

4

The Ninth Circuit’s holding of course is not binding on this court. See Ninth Circuit
Rule 36–3; Johnson v. Nevada ex rel. Bd. of Prison Comm’rs, No. 11–00487, 2013 WL 5428423,
at *7 (D. Nev. Sept. 26, 2013) (under Ninth Circuit Rule 36–3, unpublished Ninth Circuit
opinions have “only persuasive rather than authoritative or precedential value”); see also Gray v.
Astrue, No. 11–294, 2012 WL 4097762, at *9 (D. Idaho Sept. 17, 2012) (same).
8

1

fear of foreign prosecution is tantamount “to fear of a criminal case brought by the Government

2

itself.” Balsys, 524 U.S. at 700. Salyer’s fear does not preclude reopening discovery.

3

b)

4

Custodial Confinement

Salyer also contends discovery should be precluded because he is in the custody of

5

the U.S. Bureau of Prisons in community confinement. Salyer Opp’n at 1–2. Salyer cites no

6

authority suggesting discovery is precluded under these circumstances, and the applicable

7

authority suggests otherwise. Under Federal Rule of Civil Procedure 30(a)(2)(b), the deposition

8

of a deponent who is confined may be taken, albeit with leave of court.5 Leave must be granted

9

to the extent consistent with Rule 26(b)(1) and (2). Fed. R. Civ. P. 30(a)(2). Rule 26 governs the

10

scope and limits of discovery, and states in pertinent part that

11

Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.

12
13
14
15
16

Fed. R. Civ. P. 26(b)(1). Rule 26 governs the limitations on the “frequency and extent” of

17

discovery, and states “the court may alter the limits in these rules on the number of depositions

18

and interrogatories or on the length of depositions under Rule 30.” Fed. R. Civ. P. 26(b)(2). The

19

Rule also states in part,

20

On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule
if it determines that:

21
22
5

23
24

Rule 30(a)(2) states in relevant part:
(a) When a Deposition May Be Taken
...

25
26

(2) With Leave. A party must obtain leave of court, and the court
must grant leave to the extent consistent with Rule 26(b)(1) and (2):

27

...

28

(B) if the deponent is confined in prison.
9

1

(i) the discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient,
less burdensome, or less expensive;

2
3

(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or

4
(iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).

5
6

Id. As long as the court approves a party’s request, discovery may be taken from an imprisoned

7

person. See id. 30(a)(2)(b); cf. Abedi v. Butler, No. 06–0991, 2009 WL 981664, at *12 (E.D. Cal.

8

Apr. 10, 2009) (denying plaintiff inmate’s motion to vacate defendants’ notice to depose inmate

9

in prison); see also Griffin v. Johnson, No. 13-01599, 2016 WL 4764670, at *1 (E.D. Cal.

10

Sept. 12, 2016) (granting defendants’ leave to take plaintiff inmate’s deposition at correctional

11

institution as request did not appear to exceed the limitations set forth in Rule 26(b)(2)).

12

Here, Morning Star moves to reopen discovery for the limited purpose of

13

preparing for trial by taking Salyer’s deposition, propounding one set each of interrogatories,

14

requests for admission and document requests, and engaging in appropriate follow-up discovery if

15

necessary. Salyer is a key defendant in this case, and Morning Star’s requests are directly related

16

to its claims against Salyer. The discovery sought does not appear to exceed any limitations set

17

forth in Rule 26(b)(1) or (2). Salyer’s custodial status, if he remains in custody, does not preclude

18

the taking of this discovery.

19
20

C.

Ingomar’s and Los Gatos’ Opposition
As noted above, Ingomar and Los Gatos contend no good cause exists to reopen

21

discovery, Morning Star does not point to any evidence that would be uncovered in discovery,

22

and further discovery would be prejudicial in that additional discovery would “waste more

23

resources.” Joint Opp’n at 2–7. In reply, Morning Star contends it was not the only party to

24

pursue restitution proceedings against Salyer, and thereby should not be penalized for the time it

25

took to resolve these proceedings on the merits. Reply at 6. Further, Morning Star contends

26

reopening discovery will not cause Ingomar or Los Gatos any prejudice, and in any event, is

27

necessary to prepare for trial against Salyer, who has not moved for summary judgment against

28

Morning Star. Id. at 8–9.
10

1

1.

2

The court will modify dates set forth in a scheduling order only upon a showing of

Legal Standards

3

good cause by the moving party. Fed. R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc.,

4

975 F.2d 604, 608 (9th Cir. 1992). The “good cause” standard also applies to requests to reopen

5

discovery. See, e.g., Sheridan v. Reinke, 611 F. App’x 381, 384 (9th Cir. 2015) (applying

6

Johnson “good cause” requirement to motions to reopen discovery); Yeager v. Yeager,

7

No. 06-001196, 2009 WL 1159175, at *2 (E.D. Cal. Apr. 29, 2009) (a party must show “good

8

cause” to reopen discovery); United States v. $100,348.00 U.S. Currency, 157 F. Supp. 2d 1110,

9

1119 (C.D. Cal. 2001) (concluding “good cause” must exists to reopen discovery). In

10

determining whether good cause exists to reopen discovery, courts may consider a variety of

11

factors such as:

12

15

1) whether trial is imminent, 2) whether the request is opposed,
3) whether the non-moving party would be prejudiced, 4) whether
the moving party was diligent in obtaining discovery within the
guidelines established by the court, 5) the foreseeability of the need
for additional discovery in light of the time allowed for discovery
by the district court, and 6) the likelihood that the discovery will
lead to relevant evidence.

16

United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir.

13
14

17

1995), judgment vacated on other grounds by Hughes Aircraft Co. v. United States ex rel.

18

Schumer, 520 U.S. 939, 952 (1997). The primary factor considered in a good cause

19

determination is whether the moving party was diligent in its attempts to complete discovery in a

20

timely manner. Johnson, 975 F.2d at 609. If that party was not diligent, the inquiry should end

21

and the request should be denied. Id. The decision to reopen discovery is one of “discretion.”

22

Schumer, 63 F.3d at 1526; see also Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)

23

(“Whether to extend or reopen discovery is committed to the sound discretion of the trial court

24

and its decision will not be overturned on appeal absent abuse of that discretion.”).

25
26
27
28

2.

Application
a)

Factor Four—Diligence Favors Morning Star

Focusing primarily on the most important consideration, Morning Star’s diligence,
it was apparent from the beginning of this case that Morning Star would be hampered in
11

1

conducting discovery with Salyer, the key witnesses, because of the pending restitution

2

proceeding in the related criminal matter. Scheduling Order at 2. Ingomar and Los Gatos

3

contend Morning Star was not diligent because it did not “even attempt to depose Salyer before

4

discovery closed.” Mot. at 6. But here, any efforts to conduct discovery against Salyer would

5

have been futile. See Campbell v. Gerrans, 592 F.2d 1054, 1057 (9th Cir. 1979) (concluding the

6

privilege against self-incrimination can justify the refusal to respond to discovery requests such as

7

interrogatories). In light of the particular circumstances of this case, in which Morning Star

8

notified the court from the beginning Salyer would not participate in discovery pending resolution

9

of restitution proceedings against Salyer, no further effort was needed to demonstrate Morning

10
11

Star’s diligence.
Further, Morning Star promptly moved to modify the scheduling order within two

12

days after Salyer belatedly notified the court of the completion of restitution proceedings. See

13

ECF Nos. 297, 298; see also United States v. Salyer, ECF No. 685. As soon as Salyer notified

14

the court, Morning Star promptly filed its motion to reopen discovery. Accordingly, Morning

15

Star has been diligent.

16
17

b)

Factors One, Three, Five, and Six Also Favor Morning Star

Applying the other Schumer factors, factor one also favors Morning Star because

18

the current motions for summary judgment are pending, and no trial date has yet been set. Factor

19

three favors Morning Star because defendants show no prejudice should the court reopen

20

discovery in preparation for trial, as long as discovery reopens once the court issues its order on

21

summary judgment. Defendants simply will “have to engage in the normal discovery process that

22

would have taken place if, at the start of his case,” Salyer had not asserted his Fifth Amendment

23

privilege. Perkins v. Contra Costa Cty. Sheriff’s Dep’t J-Team, No. 07–02013 CW, 2010 WL

24

539260, at *3 (N.D. Cal. Feb. 9, 2010). While defendants may be somewhat inconvenienced if

25

the court does not grant them summary judgment, “it is not prejudicial for all parties to be in

26

possession of the relevant evidence.” Id. In light of the court’s denial of Morning Star’s request

27

to reopen discovery to supplement the record on summary judgment, defendants will not suffer

28

additional delay or expense in connection with the pending motions.
12

1

Factor five also favors Morning Star. Morning Star’s main contention is that

2

Salyer, Ingomar, and Los Gatos participated in a conspiracy that led to Morning Star’s financial

3

injury. See generally Pls.’ Opp’n to Ingomar’s Mot. Summ. J.; Pls.’ Opp’n to Los Gatos’ Mot.

4

Summ. J. Without adequate discovery with respect to one of the alleged conspiracy members,

5

who is alleged to be a ringleader of the entire conspiracy, see Pls.’ Opp’n to Ingomar’s Mot.

6

Summ. J. at 8; Pls.’ Opp’n to Los Gatos Mot. Summ. J. at 9, Morning Star would be at an

7

“insurmountable disadvantage at trial.” Perkins, 2010 WL 539260, at *2. Finally, factor six also

8

favors Morning Star, for Salyer’s deposition testimony and written discovery responses regarding

9

his perception of the events at issue in this suit are undoubtedly relevant to Morning Star’s case

10

given Salyer’s key role as alleged.

11

c)

12
13

Factor Two Favors Ingomar and Los Gatos

Only factor two favors defendants, for they oppose Morning Star’s request to
reopen discovery.

14

d)

Conclusion

15

On balance, the court finds Morning Star has shown good cause to reopen

16

discovery for the limited purpose of preparing for trial. Accordingly, the court GRANTS

17

Morning Star’s request, subject to the reopening of discovery upon the court’s issuance of its

18

order on the pending motions for summary judgment.

19

III.

20

CONCLUSION
The court GRANTS Morning Star’s motion to reopen discovery to support

21

preparation for trial, but DENIES Morning Star’s motion to reopen discovery to supplement the

22

record before the court on the pending motions for summary judgment.

23

Discovery is reopened as described in this order with a cutoff date of 180 days

24

from the date of the court’s filing of its order on summary judgment, for the limited purpose of

25

taking Salyer’s deposition, propounding one set each of interrogatories, requests for admission,

26

document requests, and appropriate follow-up discovery if necessary.

27
28
13

1

If Salyer remains or is confined in any manner by the U.S. Bureau of Prisons and

2

any party requires an order of this court to secure the discovery ordered here, that party shall

3

promptly seek such an order from the magistrate judge assigned to this case.

4
5

IT IS SO ORDERED.
DATED: January 10, 2017.

6
7

UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14