Steshenko v. McKay et al

Filing 850

ORDER RE CERTAIN PENDING MOTIONS. Motions terminated: [#710, #740, #749, #750, #765, #783, #786, #787, #811]. Signed by Judge Richard Seeborg on 11/14/14. (cl, COURT STAFF) (Filed on 11/14/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY NICHOLAS STESHENKO,

Case No. 09-cv-05543-RS

Plaintiff,
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United States District Court
Northern District of California

v.

ORDER RE CERTAIN PENDING
MOTIONS

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THOMAS MCKAY, et al.,
Defendants.

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This order addresses several pending motions that have previously been, or hereby are,
submitted without oral argument, pursuant to Civil Local Rule 7-1(b).

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1. Leave to amend (Dkt. No. 710)

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Plaintiff seeks leave to file a Sixth Amended Complaint. His motion includes a request for

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reconsideration, as a prerequisite to the portion of the proposed amendments that would otherwise

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be foreclosed by prior rulings. The parties characterize the proposed amendments as permitting

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plaintiff to:

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(1) Include the defendants Dorothy Nun and Anne Lucero in their official capacities for

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claims seeking injunctive relief;

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(2) Add certain college officials in their official capacities for purposes of plaintiff’s

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claims under 42 U.S.C. § 1983 and 1985;

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(3) Re-assert Plaintiff’s claim for monetary damages against Cabrillo Community College

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District under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 200d et seq., Title IX

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of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and the Age

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Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., and;

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(4) Expressly state the federal statutes on which plaintiff’s discrimination claims are based.

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At this stage in this long-running litigation, the liberal policy permitting amendment must

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be balanced against the potential prejudice to defendants. The request to add claims against Nun

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and Lucero in their official capacities, and to add wholly-new individual defendants in their

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official capacities, is denied. Plaintiff’s concern is that there be an appropriate defendant or

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defendants against whom prospective injunctive relief can be entered. Even if it may sometimes
be proper to name individual defendants in their official capacities for that purpose, in this

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United States District Court
Northern District of California

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instance the College is a party directly, and it acknowledges that individual capacity claims would

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be redundant. Under the circumstances here, in the event plaintiff were to prevail on any claim for

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prospective injunctive relief, there is no doubt that the Court has jurisdiction to enter an

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enforceable order against the College itself. Accordingly, while plaintiff will not be permitted to

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add the individual capacity claims at this late juncture, he need not be concerned that the absence

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of those claims will prejudice him.

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Plaintiff’s request to amend the complaint to identify additional statutory bases of his

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discrimination claims is granted. His request for reconsideration and for leave to reassert damages

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claims against the College based on the specified statutes is granted. (To the extent plaintiff might

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prove liability only under statutes or claims not providing for Eleventh Amendment waiver,

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however, monetary damages against the College would remain unavailable.)

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The Sixth Amended Complaint, as limited by this order, is hereby deemed filed as of this

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date. While defendants may file a response if they so elect, they are hereby relieved from the

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obligation to do so, and their existing answer shall be deemed to apply, with any new factual

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averments of the Sixth Amended Complaint deemed to have been denied.

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CASE NO.

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09-cv-05543-RS

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2. Motion to compel (Dkt. No. 740)

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Plaintiff seeks an order compelling defendants to “authenticate” documents they have

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produced in discovery. A party has no such obligation. Indeed, a party must produce any

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document in its possession, custody, or control that is responsive to a proper document request

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without regard to whether the party has means to “authenticate” the document, and even if there

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were reason to doubt the “authenticity” of the document. The parties should, of course, meet and

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confer as part of the pre-trial preparation process to reach stipulations as to the authenticity of any

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documents where feasible. Plaintiff’s further request that defendants be compelled to provide

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certain verifications of their discovery responses is moot, as the verifications have now been

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provided. Accordingly, this motion is denied.

United States District Court
Northern District of California

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3. Motion to clarify sanctions ruling (Dkt. No. 749)

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Plaintiff seeks further guidance as to the nature and scope of sanctions to be imposed

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against defendants for evidence spoliation. As reflected in the order denying the College

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Defendants’ motion for summary judgment, presumptions have already been applied against them

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in that context. No further pre-trial determinations are appropriate as to the extent to which

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spoliation may have occurred or as to what, if any, sanctions should result, but must await

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testimony at trial.

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4. Motion to preclude McKay testimony (Dkt. No. 750)

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Plaintiff seeks to preclude defendant McKay from testifying, based on a contention that he

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has offered false testimony and responses during discovery, and in light of the spoliation issues.

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A witness’ veracity, or lack thereof, is for the trier of fact to evaluate. Purported inconsistencies in

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discovery responses my provide a basis for cross-examination, but are not grounds to exclude a

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party from testifying. The motion is denied.

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5. Motion to compel identification of document “sources” (Dkt. No. 765)

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CASE NO.

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09-cv-05543-RS

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Contending that defendants have produced some documents that appear to be “crudely

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made forgeries,” plaintiff seeks to compel defendants to identify the “sources” from which

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documents were collected, or, in the alternative, to preclude them from testifying about their

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document preservation efforts and arguing that they did not engage in spoliation. The motion is

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denied. Plaintiff has pointed to no timely discovery request regarding the “sources” of the

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documents that defendants failed to answer, and there is no other basis for compelling the types of

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information plaintiff is demanding at this juncture.

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6. Motion to compel production of the “Johnson Study” (Dkt. No. 783)
Plaintiff seeks a copy of a study conducted by Barbara Johnson, discussed at the Rule

United States District Court
Northern District of California

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30(b)(6) deposition of Dorothy Nunn on July 21, 2014. Whatever technical merit defendants’

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opposition may have regarding the adequacy of plaintiff’s meet and confer efforts, the absence of

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a formal request, the timeliness of this motion, and whether it should have been presented to the

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magistrate judge, the record reflects that at the deposition counsel appropriately committed to

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make good faith efforts to produce the document. Even if there was a subsequent failure on

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plaintiff’s side to follow up, defendants should now honor that commitment. Defendants shall

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produce the study within one week of the date of this order.

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7. Motion to “clarify” order re experts (Dkt. No. 786)

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Plaintiff’s prior motion to appoint experts was denied. Apparently because plaintiff may

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be considering presenting the experts at his own expense, he now complains that the order did not

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address his additional request for time limitations to be imposed on voir dire, examination and

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cross-examination of those experts to minimize costs. Plaintiff requests that such limits now be

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imposed. The motion is denied. At the pretrial conference, the parties will be given strict time

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limitations that will apply to the presentation of all of the evidence. While no specific limitations

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will be imposed as to how parties use their time, plaintiff may be assured that in the event he

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presents expert testimony, defendants will not be permitted to engage in unreasonably lengthy voir

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CASE NO.

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09-cv-05543-RS

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dire or cross-examination merely to drive up his costs. That said, neither will defendants be

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precluded from spending such time in voir dire and cross-examination as is reasonably necessary

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in light of the expert testimony proffered.

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8. Motion seeking court funds (Dkt. No. 787)

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Plaintiff’s request to be provided funds from the Court to pay his expert witnesses for trial

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testimony is denied.

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9. Motion for leave to seek reconsideration (Dkt. No. 811)
Plaintiff’s motion for leave to seek reconsideration of the order granting summary

United States District Court
Northern District of California

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judgment in favor of the Hospital Defendants is denied. The purported “new facts” on which

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plaintiff relies do not support reconsideration.

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IT IS SO ORDERED.

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Dated: November 14, 2014
______________________________________
RICHARD SEEBORG
United States District Judge

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CASE NO.

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09-cv-05543-RS