Adams v. Kraft et al

Filing 114

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 98 defendants' Motion to Compel; denying 100 defendants' Motion for Sanctions. 4/26/2011 hearing is vacated. (hrllc2, COURT STAFF) (Filed on 4/21/2011)

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*E-FILED 04-21-2011*

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NOT FOR CITATION

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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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No. C10-00602 LHK (HRL)

BERRY LYNN ADAMS,

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Plaintiff,
v.

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DANIEL L. KRAFT; PHILLIP HAUCK; KIRK
LINGENFELTER; K.P. BEST; J.I. STONE;
CHIP BOCKMAN; R. CALLISON; and SCOTT
SIPES,

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ORDER (1) GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO COMPEL; AND (2)
DENYING DEFENDANTS’ MOTION
FOR SANCTIONS
[Re: Docket Nos. 98 and 100]

Defendants.
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Defendants move for an order compelling plaintiff to respond to their discovery

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requests. They also move for sanctions. Plaintiff opposes the motions. These matters are

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deemed appropriate for determination without oral argument, and the April 26, 2011 hearings

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are vacated. CIV. L.R. 7-1(b). Upon consideration of the moving and responding papers, this

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court grants in part and denies in part defendants’ motion to compel and denies their motion for

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sanctions.

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Defendants first propounded interrogatories and requests for production on plaintiff in

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September 2010, then re-propounded those requests in December 2010 and January 2011

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(modified to reflect the allegations of plaintiff’s First Amended Complaint). Defendants

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granted plaintiff several extensions of time to serve his discovery responses, with the final

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deadlines for plaintiff’s responses being March 16 and March 18, 2011. When plaintiff failed to

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serve his discovery responses by those dates, defendants filed the instant motion to compel and

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motion for sanctions. They request an order requiring plaintiff to answer their interrogatories

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and produce all responsive documents without objection. They also request that plaintiff and

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his attorney be ordered to reimburse defendants for the fees and costs incurred in bringing the

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instant motions, as well as their motion for an order shortening time.

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The failure to timely respond to a discovery request constitutes a waiver of any

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objection. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th

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Cir.1992). Nevertheless, courts have broad discretion to grant relief, on a case-by-case basis,

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from any such waiver upon a showing of good cause. See Blumenthal v. Drudge, 186 F.R.D.

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For the Northern District of California

United States District Court

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236, 240 (D. D.C. 1999).
Plaintiff says that he was justified in not serving his discovery responses by the due

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dates because (1) on March 8, 2011, Judge Koh issued an order granting in part and denying in

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part defendants’ motion to dismiss his First Amended Complaint (FAC), with leave to amend as

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to some claims; (2) defendants filed the instant motions some two weeks later, knowing that

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plaintiff would be filing a Second Amended Complaint (SAC); (3) plaintiff’s SAC was filed on

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April 7, 2011; and (4) plaintiff does not yet know whether defendants will answer the

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complaint. In other words, plaintiff argues that defendants’ motions should be denied because

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the requests at issue were, in his view, prematurely served and were, in any event, mooted by

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the filing of the SAC. He further contends that he should be excused from responding to any

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discovery until after defendants file an answer.

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Although plaintiff has now filed his SAC, the essence of plaintiff’s allegations appear to

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be the same. That is, he alleges various constitutional violations of his First, Fourth and

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Fourteenth Amendment rights, including false arrest, excessive force, and unlawful search.

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And, although defendants have not submitted to this court copies of their discovery requests, it

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seems likely that the requests would encompass information pertinent to plaintiff’s current

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allegations, notwithstanding that they might reference allegations that were asserted in his FAC.

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More to the point, plaintiff’s arguments to this court essentially are the same request for relief

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that Judge Koh has denied—once, reportedly at the December 2010 case management
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conference,1 and again more recently—with prejudice—in her March 22, 2011 order denying

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plaintiff’s motion for protective order. (See Docket No. 101).

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Nevertheless, to the extent the subject discovery requests pertain solely to claims that

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either (1) have been dismissed with prejudice or (2) have not been revived in the SAC,

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defendants’ motion to compel is denied. Their motion to compel otherwise is granted as

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follows: Within ten days from the date of this order, and to the extent he has not already done

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so,2 plaintiff shall answer defendants’ interrogatories and produce all responsive documents

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without objection. To the extent plaintiff believes that any discovery response or document

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produced legitimately implicates his privacy interests, he shall produce that information; but, he
may designate the information pursuant to a suitable protective order, notwithstanding his

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For the Northern District of California

United States District Court

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waiver of objections.

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As for defendants’ motion for sanctions, this court finds that defendants have not been

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seriously prejudiced by plaintiff’s delay in serving his discovery responses. Defendants say that

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they wanted to secure the subject discovery before the parties’ scheduled April 28, 2011

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mediation. The record, however, indicates that defendants repeatedly extended the deadlines

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for plaintiff’s responses—including, on more than one occasion, on a unilateral basis after

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plaintiff’s responses were overdue—even when defendants believed that further extensions

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Defendants say that, at the December 2, 2010 case management conference,
they specifically advised the court that they would move to dismiss plaintiff’s then soon-tobe filed First Amended Complaint (FAC) and requested a discovery stay on that basis.
Plaintiff contends that defendants did not, at that time, make it clear to the court that they
intended to move for dismissal. He believes that the court declined to stay discovery at that
time on the assumption that defendants would answer his FAC. Suffice to say that Judge
Koh has made it clear in her March 22, 2011 order denying plaintiff’s motion for protective
order that she disfavors any discovery stay.
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While the instant motions were being briefed, plaintiff reportedly served
responses to some of defendants’ discovery requests. Defendants say that plaintiff has yet to
respond to discovery requests from Best, Stone, Callison, and Sipes. They also argue that the
responses that have been produced are deficient. The sufficiency of plaintiff’s responses,
however, are not before the court on the instant motion.

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were not warranted. Accordingly, defendants’ motion for sanctions is denied.

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SO ORDERED.
Dated:

April 21, 2011

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:10-cv-00602-LHK Notice has been electronically mailed to:

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Daniel B. Alweiss [e-mail], [e-mail],
[e-mail], [e-mail]

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Kathleen Wells

[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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