Doe 1 et al v. Nielsen et al

Filing 246

Order Discharging 235 Order to Show Cause. Signed by Judge Virginia K. DeMarchi on 10/4/2019. (vkdlc1S, COURT STAFF) (Filed on 10/4/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JANE DOE 1, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No.18-cv-02349-BLF (VKD)

v.
KEVIN K. MCALEENAN, et al.,
Defendants.

ORDER DISCHARGING ORDER TO
SHOW CAUSE RE SANCTIONS FOR
NON-COMPLIANCE WITH COURT
ORDER
Re: Dkt. No. 235

On September 23, 2019, the Court issued an order directing defendants to show cause why

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the Court should not impose sanctions for defendants’ failure to comply with the Court’s

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September 6, 2019 order regarding defendants’ assertion of the law enforcement and deliberative

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process privileges (Dkt. 223). Dkt. No. 235. As ordered, defendants filed a response the order to

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show cause on September 27, 2019, and the Court held a hearing on the matter on October 1,

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2019. Dkt. Nos. 239, 242. Defendants represent that they have now produced the documents that

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are the subject of the Court’s September 6 order. Dkt. No. 236.

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This Court has authority under Federal Rule of Civil Procedure 37(b) and inherent

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authority to issue sanctions for failure to comply with a discovery order. Fed. R. Civ. P. 37(b)(2);

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Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). Here, defendants provide no substantial

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justification for their failure to comply with the Court’s September 6 order. Defendants previously

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represented to the Court that the documents submitted for review in connection with the privilege

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dispute were not classified. Defendants’ explanation for why that earlier representation was not

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accurate and why the documents would not be produced as ordered does little to persuade the

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Court that the failure to comply was justified or in good faith.

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The Court has carefully considered whether sanctions are warranted here. On the one

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hand, defendants’ failure to comply with the September 6 order comes after repeated and

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unreasonable delays by defendants in providing the jurisdictional discovery the Court first ordered

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over a year ago. Dkt. No. 102. Defendants did not move for relief from the deadlines set in the

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September 6 order or for review on the merits; they simply chose not to comply and so advised the

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Court. They have no good explanation for that course of conduct. On the other hand, plaintiffs

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were not materially prejudiced by defendants’ failure to comply with the September 6 order, as

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defendants promptly produced the disputed documents following the Court’s further order.

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United States District Court
Northern District of California

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In these circumstances, and in the exercise of its discretion, the Court will not sanction
defendants for their failure to comply with the September 6 order. Defendants are cautioned that
the Court will not tolerate deliberate non-compliance with discovery orders in the future.
IT IS SO ORDERED.
Dated: October 4, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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