Meneweather v. Powell et al

Filing 86

ORDER by Judge ARMSTRONG granting 80 Motion to Compel (lrc, COURT STAFF) (Filed on 12/13/2011)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 TOMAS LOPEZ MENEWEATHER, Case No: C 07-4204 SBA (PR) 6 Plaintiff, 7 vs. ORDER GRANTING PLAINTIFF’S ADMINISTRATIVE MOTION TO COMPEL INITIAL DISCLOSURES 8 B. POWELL, et al., Dkt. 80 9 Defendants. 10 11 12 This is a prisoner civil rights action under 42 U.S.C. § 1983 in which counsel has 13 been appointed to represent Plaintiff. The parties are presently before the Court on 14 Plaintiff’s administrative motion to compel initial disclosures pursuant to Federal Rule of 15 Civil Procedure 26. Having read and considered the papers filed in connection with this 16 matter and being fully informed, the Court hereby GRANTS the motion for the reasons set 17 forth below. 18 I. BACKGROUND 19 Plaintiff commenced the instant action pro se on August 16, 2007. On September 20 27, 2011, the Court appointed the law firm of Sheppard, Mullin, Richter & Hampton and 21 attorneys Otis McGee Jr. and James Higgins to represent Plaintiff. Dkt. 72. At the initial 22 Case Management Conference held on November 17, 2011, Plaintiff raised the issue of 23 Defendants’ refusal to provide initial disclosures under Rule 26. Defendants countered that 24 because Plaintiff initiated the action pro se, they were exempt from the initial disclosure 25 requirements of Rule 26(a)(1)(B)(iv). The Court indicated that if the parties were unable to 26 reach an agreement on the initial disclosure issue, Plaintiff could file an administrative 27 motion to compel said disclosures. Accordingly, Plaintiff has filed an administrative 28 1 motion to compel Defendants to provide initial disclosures. Dkt. 80. Defendants have filed 2 an opposition to the motion. Dkt. 82. 3 II. 4 DISCUSSION Federal Rule of Civil Procedure 26 requires the parties to provide initial disclosures 5 to the opposing party “without awaiting a discovery request[.]” Fed. R. Civ. P. 26(a)(1). 6 The purpose of Rule 26 initial disclosures is to accelerate the exchange of basic 7 information, encourage counsel to evaluate the case, and enhance settlement opportunities. 8 Schwarzer, et al., Cal. Practice Guide: Fed. Civ. P. Before Trial (The Rutter Group 2011) 9 ¶ 1:190, at 11-27 (citing Notes of Advisory Committee on 1993 Amendments to Fed. R. 10 11 Civ. P. 26(a)). Various types of proceedings are exempt from the initial disclosure requirement, 12 including “an action brought without an attorney by a person in the custody of the United 13 States, a state, or a state subdivision[.]” Fed. R. Civ. P. 26(a)(1)(B)(iv). Defendants rely on 14 this provision as the basis for their refusal to provide initial disclosures to Plaintiff. 15 However, this exemption no longer applies because Plaintiff is now represented by counsel. 16 See Harris v. Hogle, No. 1:05-cv-815, 2010 WL 2302309, at *2 (W.D. Mich. June 4, 2010) 17 (finding that the Rule 26(a)(1)(B)(iv) exemption “no longer applied” once plaintiff became 18 represented by counsel). 19 Defendants cite Vaden v. Summerhill, 449 F.3d 1047 (9th Cir. 2006) for the 20 proposition that where an action is commenced by a pro se prisoner, it is forever exempt 21 from Rule 26. Defs.’ Opp’n at 3. This contention lacks merit. Vaden concerned whether a 22 prisoner civil rights action was subject to the exhaustion requirement under the Prisoner 23 Litigation Reform Act—not whether the initial disclosure requirement is triggered where 24 counsel is appointed to represent a prisoner. Moreover, Defendants overlook the Advisory 25 Committee Notes following Rule 26 which provide that even if a case is exempt under Rule 26 26(a)(1)(B), “the court can order exchange of similar information in managing the action 27 under Rule 16.” Fed. R. Civ. P. 26, Advisory Comm. Note (2000 Am.). 28 -2- 1 Finally, Defendants argue that requiring initial disclosures at this juncture is not an 2 efficient use of the parties’ time and resources. Defs.’ Opp’n at 5. Again, the Court is not 3 persuaded. Although this case has been pending for some time, it is important to note that 4 counsel was only recently appointed. Thus, unlike a pro se plaintiff, an attorney will be 5 able to utilize the initial disclosures in a manner consistent with the purposes of Rule 26; 6 namely, to promote counsel’s evaluation of the case and enhance settlement opportunities. 7 Thus, the underlying purposes of Rule 26 will be served by requiring the exchange of initial 8 disclosures, notwithstanding the length of time that the action has been pending. 9 III. CONCLUSION 10 For the reasons stated above, 11 IT IS HEREBY ORDERED THAT: 12 1. Plaintiff’s administrative motion to compel initial disclosures is GRANTED. 13 2. The parties are directed to provide their respective initial disclosures under 14 Rule 26(a) by no later than January 10, 2012. 15 3. 16 IT IS SO ORDERED. 17 This Order terminates Docket 80. Dated: December 13, 2011 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -3-

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