Steshenko v. McKay et al

Filing 535

ORDER RESETTING CASE SCHEDULE. ORDER REFERRING CASE to Magistrate Judge Jacqueline Corley for Settlement. Signed by Judge Richard Seeborg on 3/25/13. (cl, COURT STAFF) (Filed on 3/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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GREGORY NICHOLAS STESHENKO,
Plaintiff,

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v.

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ORDER RESETTING CASE
SCHEDULE

THOMAS MCKAY, et al.,

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No. C 09-5543 RS

Defendants.
____________________________________/

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During the last quarter of 2012, plaintiff Gregory Steshenko took the position that he would

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not appear for his deposition until and unless he obtained a ruling from the Ninth Circuit regarding

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various matters as to which he was attempting to pursue interlocutory appeals. Although it was

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apparent that Steshenko was mistaken in believing he could pursue an appeal notwithstanding the

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denial of a certification under 28 U.S.C.§ 1292(b), given the nature of his challenges to the rulings

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of this court and the assertions he was making, it was also apparent that only a decision rendered by

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the Ninth Circuit would be sufficient to persuade him to alter his conduct. Accordingly, the

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progress of this litigation effectively came to a halt while Steshenko pursued the matter in the

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appellate court.

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The Ninth Circuit ultimately rejected each of the grounds upon which Steshenko sought
review, and expressly denied his requests to disqualify this court. Thereafter, in December of 2012,

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Steshenko appeared for his deposition, and the parties subsequently filed statements setting forth

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their views as to what motions remain to be decided or filed as this action goes forward. Steshenko

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has also filed a motion, set to be heard on March 28, 2012, expressly requesting that a new case

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management schedule be set. Pursuant to Civil Local Rule 7-1(b), that motion is suitable for

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disposition without oral argument, and the hearing is vacated. The various pending matters, and a

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schedule for going forward are discussed below.

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1. Report and Recommendation for terminating sanctions against Steshenko

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In September of 2012, the assigned magistrate judge issued a report and recommendation
that terminating sanctions be imposed against Steshenko in light of his failure and refusal to appear

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For the Northern District of California

United States District Court

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for deposition. While it almost certainly would have been within the court’s discretion to impose

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such sanctions based on the record at that time, and for the reasons laid out by the magistrate judge,

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subsequent events have rendered the recommendation moot. Accordingly it will not be adopted.

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2. Outstanding discovery matters

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Discovery closed in October of 2012. No party has requested that it be reopened, and there

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is no basis to do so at this juncture. In mid-December of 2012, the parties reported that certain

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previously-filed discovery motions remained under submission. It appears that all such matters

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were subsequently decided; if any remain under submission they may be disposed of in the

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discretion of the magistrate judge in due course. The magistrate judge may also dispose of any

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requests that may remain pending for leave to file discovery motions, pursuant to his order requiring

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such advance leave. Although Civil Local Rule 37-3 generally requires discovery motions to be

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filed within seven days of the discovery cut-off, that would not preclude parties from seeking relief

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related to Steshenko’s deposition, which went forward after the close of discovery, provided they

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sought relief within seven days of that event. The magistrate judge may exercise his discretion in

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determining which, if any, of the requests that may be before him should be treated as timely.

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3. Summary judgment motions

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Defendants filed motions for summary judgment, or partial summary judgment, before the

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close of discovery, and without having taken plaintiff’s deposition. Defendants have subsequently

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requested that the motions not be heard until they have the opportunity to complete Steshenko’s

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deposition, as they may wish to submit further briefing.1 While defendants’ filing of the motions

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was understandable in light of the difficulties they were then experiencing in obtaining Steshenko’s

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testimony, it is now plain that the motions were premature and that the existing briefing is

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inadequate to address the current record. Accordingly, the motions are hereby denied, without

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prejudice to being renewed, within the schedule set out below.

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For the Northern District of California

United States District Court

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4. Steshenko’s motion for leave to amend

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Steshenko’s previously-submitted motion for leave to file a “fourth amended complaint” is

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granted. Whether or not all of the claims and theories are viable, the amendments do not add any

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new facts, implicate a need for additional discovery, or otherwise unduly prejudice defendants,

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despite coming late in this litigation. Under the liberal standard of Rule 15, the amendments must

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be allowed.

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5. Spoliation

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Steshenko’s motion to impose sanctions for alleged spoliation of evidence by defendants has

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previously been denied in its entirety to the extent it was brought against the Hospital defendants.

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Prior orders also explained that no basis for imposing terminating sanctions against the College

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defendants had been shown. The College defendants were ordered, however, to show cause why at

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least some form of sanctions should not be imposed, and to address what those might be. In

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response, the College defendants have argued that they acted in good faith at all times, that

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Steshenko has not shown any material evidence was destroyed, and that at most, they should be

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required to take remedial action to prevent similar problems in any future litigation.

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The court expresses no opinion as to whether further a further deposition of Steshenko is
warranted. Those issues are to be presented to the magistrate judge.

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Defendants’ suggestion that they only be ordered to undertake steps to prevent future

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evidence destruction is inadequate. They have an independent duty to take such action, even in the

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absence of any express order in this litigation. Additionally, ordering any specific safeguards for

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future litigation would not cure any prejudice to Steshenko that may have arisen here. Accordingly,

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imposition of evidentiary sanctions is warranted. At this juncture, however, the record is

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insufficient to determine the precise contours of the relief that will be appropriate. At a minimum,

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the jury will be given an instruction that they may draw an adverse inference in light of the email

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destruction. In the context of any renewed summary judgment motion, or prior to trial should no

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such motions be filed, a further order will issue setting out any evidence that may be excluded, or
any matters that may be deemed established, as a remedy for the College defendants’ failures to take

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For the Northern District of California

United States District Court

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reasonable measures to preserve discoverable emails.

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6. Schedule

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Disposition of any remaining discovery disputes shall be at the discretion of the magistrate

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judge and subject to his availability. The parties, however, shall forthwith present any further issues

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they may wish to raise, with the goal of having all discovery issues closed, including any further

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deposition of Steshenko, by the end of April, 2013.

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The fourth amended complaint is deemed filed as of the date of this order. In the event

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defendants intend to bring motions to dismiss or to strike, they shall do so promptly. While any

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such motions should be calendared on 35 days notice, they will be deemed submitted upon filing of

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the reply briefs, and the hearings will be vacated. Any renewed summary judgment motions shall

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be heard no later than June 27, 2013, and shall be filed on at least 35 days notice.

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7. Referral for settlement conference

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This matter is hereby referred to Magistrate Judge Jacqueline Corley for purposes of

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conducting a settlement conference. Subject to the Magistrate Judge’s availability, the conference

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preferably shall take place within the next 45 days.

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IT IS SO ORDERED.

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RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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Dated: 3/25/13

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