Burns et al v. City of Concord et al

Filing 42

ORDER DENYING 39 PLAINTIFFS' SECOND "EX PARTE" MOTION FOR EARLY DISCOVERY. Signed by Magistrate Judge Laurel Beeler on 7/16/2014.(lblc2, COURT STAFF) (Filed on 7/16/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
JOHN BURNS et al.,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 14-00535 LB
Plaintiffs,

v.
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ORDER DENYING PLAINTIFFS’
SECOND “EX PARTE” MOTION FOR
EARLY DISCOVERY

CITY OF CONCORD, et al.,
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[Re: ECF No. 39]
Defendants.
_____________________________________/
This civil rights lawsuit alleges that Defendants used excessive force that resulted in the death of

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Charles Burns and the wrongful arrest of Bobby Lawrence. See Complaint, ECF No. 1.1 Plaintiffs

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previously filed an ex parte motion for early discovery, see First Ex Parte Motion for Early

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Discovery, ECF No. 9, but the court found good cause lacking and denied that motion. See 3/3/2014

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Order, ECF No. 10.

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Defendants then were served with the First Amended Complaint, and all of them moved to

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dismiss it. See Antioch Motion, ECF No. 25; Concord Motion, ECF No. 26; Contra Costa Motion,

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ECF No. 27. The court took these pending motions under submission and continued the initial case

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management conference to September 25, 2014. See 7/2/2014 Clerk’s Notice, ECF No. 37;

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7/11/2014 Clerk’s Notice, ECF No. 38.

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.
C 14-00535 LB
ORDER

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Plaintiffs now have filed a second “ex parte” (even though Defendants have notice of it and were

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served with it via ECF) motion to take early discovery. See Second Ex Parte Motion for Early

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Discovery, ECF No. 39. In short, Plaintiffs say that they need discovery now because they might

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need it to support their oppositions to the pending motions to dismiss, and because it might lead to

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the discovery of other claims that, or defendants whom, will need to be added to this action. See

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generally id. The City of Concord Defendants filed an opposition that argues that Plaintiffs’ motion

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is both improper and unnecessary at this time. See Concord Opposition, ECF No. 41.

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A court may authorize early discovery before the Rule 26(f) conference for the parties’ and

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witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the

See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.

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For the Northern District of California

Ninth Circuit generally consider whether a plaintiff has shown “good cause” for the early discovery.

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UNITED STATES DISTRICT COURT

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15, 2010); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002);

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Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at * 2 (E.D.

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Cal. June 9, 2010); Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D.

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Ariz. 2001) (collecting cases and standards).

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The court once again DENIES Plaintiffs’ request to take early discovery. First, Plaintiffs did not

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comply with the procedures for resolving discovery disputes that are provided in the undersigned’s

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standing order (which was provided to Plaintiffs upon their filing of the complaint, see Initial Case

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Management Scheduling Order, ECF No. 4, and which is available on the court’s website). Those

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procedures require, among other things, that if a meet-and-confer by other means does not resolve

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the parties’ dispute, lead counsel for the parties must meet and confer in person. If that procedure

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does not resolve the disagreement, the parties must file a joint letter brief instead of a formal motion.

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The letter brief must be filed under the Civil Events category of "Motions and Related Filings >

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Motions – General > Discovery Letter Brief." After reviewing the joint letter, the court evaluates

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whether further proceedings are necessary, including any further briefing or argument.

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Second, even if Plaintiffs had followed these procedures, the court again finds good cause

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lacking. As the City of Concord Defendants point out, the pending motions were filed in response to

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the operative First Amended Complaint and have been taken under submission, so any discovery
C 14-00535 LB
ORDER

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received is irrelevant to the court’s decisions on those motions. It is true that the court continued the

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initial case management conference (and thus the deadline for the parties to conduct a Rule 26(f)

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conference) in light of the pending motions to dismiss, and the court believes that it is in the best

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interest of all parties that that conference, and the fact discovery that may be taken after it occurs, is

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best left until after the court decides the pending motions.

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IT IS SO ORDERED.
Dated: July 16, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 14-00535 LB
ORDER

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