Johnson v. City and County of San Francisco

Filing 68

ORDER by Judge Kandis A. Westmore regarding 65 10/5/16 Joint Discovery Letter Brief. (kawlc1, COURT STAFF) (Filed on 10/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOLORES JOHNSON,

Case No. 4:15-cv-03011-KAW

Plaintiff,
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ORDER REGARDING 10/5/16 JOINT
DISCOVERY LETTER

v.
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United States District Court
Northern District of California

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CITY AND COUNTY OF SAN
FRANCISCO,

Re: Dkt. No. 65

Defendant.

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On October 5, 2016, the parties filed a joint letter to determine whether they may rely on

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documents produced after the June 17, 2016 non-expert discovery cutoff at summary judgment

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and, if necessary, at trial. (Joint Letter, Dkt. No. 65 at 1.) Both parties produced documents after

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the cutoff date, but Plaintiff contends that she is prejudiced by Defendant’s supplemental

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production. (Joint Letter at 1, 3-4.)

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Specifically, Plaintiff contends that she is severely prejudiced, because she would have

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explored the documents at the witness depositions, and would have deposed newly discovered

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witnesses, including three interview panelists. (Joint letter at 3-4.) Defendant argues that

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documents were a supplemental disclosure, as required by Rule 26, and are harmless, because the

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supplementation was not a surprise. (Joint Letter at 2.)

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The fact discovery cutoff precludes propounding discovery or noticing depositions after

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the deadline. It does not preclude supplementing discovery responses. See Learning Tech.

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Partners v. Univ. of the Incarnate Word, 2016 WL 344881, at *1 (N.D. Cal. Jan. 28, 2016); see

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also Evenflow Plumbing Co. v. Pac. Bell Directory, 2005 WL 954469, at *2 (N.D. Cal. Apr. 26,

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2005). Indeed, the parties have an ongoing obligation to supplement under Rule 26. Fed. R. Civ.

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P. 26(e)(1). To find otherwise, would extinguish a party’s obligation to produce discoverable

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information or responsive documents identified after the cutoff date and contravene the very

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purpose of Rule 26(e)’s affirmative requirement to supplement.
Accordingly, the parties may rely on documents produced after the non-expert cutoff at

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summary judgment.1 If Plaintiff believes that she needs the testimony of the newly disclosed

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witnesses to either oppose the City’s motion for summary judgment or for the purposes of trial,

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she is GRANTED leave to take those depositions.
Furthermore, the Court would also entertain extending the briefing schedule for the motion

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for summary judgment, pursuant to a stipulation by the parties, to permit those depositions to go

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forward prior to Plaintiff’s opposition, as well as possibly continuing the February 21, 2017 trial

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date, in order to render any supplemental production harmless.

United States District Court
Northern District of California

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Finally, to the extent that Plaintiff’s operative complaint contains new claims and/or

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allegations, Defendant is entitled to re-open her deposition only as to those new claims and

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allegations.
IT IS SO ORDERED.

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Dated: October 14, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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Whether or not documents may be relied on at trial should be the subject of motions in limine.
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