Ellis v. Kaiser Permanente et al
Filing
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ORDER Granting In Part and In Part Denying 71 Plaintiff's Ex Parte Motion to Re-Open Discovery. Signed by Magistrate Judge Karen S. Crawford on 10/4/2017. (All non-registered users served via U.S. Mail Service)(lrf)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SHA'LENA ELLIS,
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Case No.: 16cv195-LAB(KSC)
ORDER GRANTING IN PART AND
IN PART DENYING PLAINTIFF'S
EX PARTE MOTION TO RE-OPEN
DISCOVERY [Doc. No. 71.]
Plaintiff,
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v.
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KAISER PERMANENTE, et al.,
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Defendants.
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Plaintiff is pursuing the operative First Amended Complaint pro se and in forma
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pauperis. 1 [Doc. Nos. 6, 29.] Before the Court is plaintiff's Ex Parte Motion to Re-
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Open Discovery to Take the Declaration of Vicky Cornejo to Preserve Her Testimony to
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Use at Trial and to Serve New Subpoena(s). [Doc. No. 71.] Defendants' have filed an
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Opposition to Plaintiff's Motion to Re-Open Discovery. [Doc. No. 72.] For the reasons
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outlined more fully below, the Court finds that plaintiff's Ex Parte Motion to Re-Open
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Discovery must be GRANTED in part and DENIED in part.
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District Courts are obligated to afford a certain amount of leeway to pro se litigants
and to construe their pleadings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010).
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16cv195-LAB(KSC)
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Background
Plaintiff's First Amended Complaint alleges that she was employed by defendant
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Kaiser Permanente as a medical assistant from October 11, 2004 through March 12,
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2015. [Do. No. 3, at p. 3.] Defendants have indicated that plaintiff erroneously sued
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Kaiser Permanente and that she was actually employed by Southern California
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Permanente Medical Group (SCPMG). [Doc. No. 21, at p. 2; Doc. No. 72, at p. 2.] The
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First Amended Complaint includes causes of action for racial discrimination, wrongful
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termination, retaliation, and violations of the ADA. [Doc. No. 3, at p. 2.] In an Order
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filed on June 2, 2017, the District Court dismissed plaintiff's claims brought under
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Section 1983, because plaintiff worked for a private employer so defendants were not
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engaged in state action or acting "under color of state law." [Doc. No. 69, at p. 2.] As a
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result of the District Court's Order, plaintiff's remaining claims are those alleged in the
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fourth through tenth causes of action under Section 1981, Title VII, and the Americans
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with Disabilities Act (ADA) for racial and other discrimination, wrongful termination,
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retaliation, and ADA violations. [Doc. No. 69, at p. 2.]
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On October 31, 2016, this Court entered a Scheduling Order setting February 28,
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2016 as the deadline for completing fact discovery. Expert discovery was scheduled to
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be completed as of June 23, 2017. Dispositive motions were to be filed no later than
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August 7, 2017. [Doc. No. 63, at pp. 1-3.]
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On February 15, 2017, after the time for completing fact discovery had expired, the
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parties filed a Joint Motion to Extend the Fact Discovery Cutoff. [Doc. No. 67 .] In the
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Joint Motion, defendants sought additional time to complete plaintiff's deposition.
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Defendants had been unable to complete the deposition because of plaintiff's work
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schedule. [Doc. No. 67, at pp. 1-3.] The Court granted defendants' request and
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extended the discovery deadline until April 30, 2017, so that the parties could complete
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plaintiff's deposition. [Doc. No. 68.]
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On August 7, 2017, defendants filed their Motion for Summary Judgment in
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accordance with the deadline set forth in the Scheduling Order, and this Motion is
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16cv195-LAB(KSC)
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currently pending before the District Court. [Doc. No. 72; Doc. No. 63, at p. 3.] On the
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same day, plaintiff filed the instant Ex Parte Motion to Re-Open Discovery. [Doc. No.
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71.] In her Ex Parte Motion, plaintiff seeks to re-open discovery so she can obtain "new
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testimony" and "new evidence" from defendants that she has "now" discovered "through
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due diligence" and that she believes will "corroborate" her claims against defendants.
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[Doc. No. 71, at p. l.]
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Discussion
A.
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Relevance Standard.
Federal Rule of Civil Procedure 26 provides as follows: "Parties may obtain
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discovery regarding any non-privileged matter that is relevant to any party's claim or
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defense and proportional to the needs of the case, considering the importance of the
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issues at stake in the action, the amount in controversy, the parties' relative access to
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relevant information, the parties' resources, the importance of the discovery in resolving
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the issues, and whether the burden or expense of the proposed discovery outweighs its
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likely benefit. Information within this scope of discovery need not be admissible in
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evidence to be discoverable." Fed.R.Civ.P. 26(b)(l).
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B.
Request for Documents.
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In her Ex Parte Motion to Re-Open Discovery, plaintiff explains that she was
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"written up for allegedly adminis[tering] a vaccine to a patient using the wrong
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technique that ultimately led the patient to be hospitalized." [Doc. No. 71, at p. 3.] By
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contrast, the First Amended Complaint alleges that a patient "had an allergic reaction" to
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a vaccination, that defendants "failed to do a proper investigation," and that defendants
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wrongly concluded on or about April 10, 2014 that plaintiff was at fault. [Doc. No. 3, at
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p. 12.]
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The Court notes that Declarations submitted by defendants in support of their
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pending Motion for Summary Judgment state that in early April 2014 a patient was
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"given a vaccination shot incorrectly in her shoulder" and was then hospitalized for five
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days. [Doc. No. 72-3, at p. 2.] These Declarations further indicate that an investigation
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16cvl95-LAB(KSC)
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commenced and it was determined that plaintiff administered the vaccine. [Doc. No. 72-
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3, at pp. 2-3.] According to the declarants, this vaccination incident was one of a
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number of disciplinary offenses that led to the termination of plaintiff's employment.
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[Doc. No. 72-3, at p. 2-6; Doc. No. 72-4, at pp. 2-5; Doc. No. 72-5, at pp. 2-8.]
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In her Ex Parte Motion, plaintiff claims that "[i]t has now come to light that a
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second patient during the same time frame also had an allergic reaction to the same
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batch of vaccine who[] was also ultimately hospitalized." [Doc. No. 71, at p. 3.]
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However, plaintiff believes that the employee who administered this second vaccine
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"was not written up" and the "vaccine overseers" were notified that "they might have a
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bad batch" of vaccine. [Doc. No. 71, at p. 3.] Plaintiff indicates that she learned of this
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"new evidence" in documents released by defendants and argues that "documents must
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now be subpoenaed." [Doc. No. 71, at p. 1.]
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The Court construes this portion of plaintiff's Ex Parte Motion as a request to re-
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open discovery so that she can serve defendants with a request for production of
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documents related to this second alleged vaccination incident that defendants have not
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yet produced. From plaintiff's moving papers, it is unclear whether plaintiff requested
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any such documentary evidence from defendants prior to the February 28, 2017 deadline
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for completing fact discovery. [Doc. No. 63, at p. 1.] If any such documentary evidence
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does exist, it would be relevant to plaintiff's theory of the case. Plaintiff contends that
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she was not at fault in the vaccination incident, but defendants erroneously concluded
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she was at fault because they did not complete a "proper investigation." [Doc. No. 3, at
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p. 12.]
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C.
Request for a Declaration or Deposition of Vicky Corneio.
Plaintiff also claims in her Ex Parte Motion to Re-Open Discovery that "through
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due diligence," she has learned that "new testimony has now appeared from one
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Ms. Vicky Cornejo ... [which] corroborates [her] causes of action against defendants."
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[Doc. No. 71, at p. 1.] According to plaintiff, Ms. Vicky Cornejo "will provide
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testimony" stating that defendant Patricia Dodgen-Bower "has been written up by
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16cv195-LAB(KSC)
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Ms. Vicky Cornejo as well as other [SCPMG] employees under [Ms. Dodgen-Bower's]
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supervision." [Doc. No. 71, at p. 3.] Defendant's Opposition to plaintiffs Ex Parte
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Motion clarifies that Ms. Dodgen-Bower "is or was Ms. Cornejo's supervisor." [Doc.
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No. 73, at p. 4.] Plaintiff also states in her Ex Parte Motion that she previously
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requested access to Ms. Dodgen-Bower's employment file but was told by defense
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counsel during a "meet and confer" that there are no "write ups" or complaints filed
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against Ms. Dodgen-Bower. [Doc. No. 71, at p. 3.] However, the relief sought by
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plaintiff in her Ex Parte Motion is somewhat unclear, as she sometimes indicates she
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wants a "declaration" by Ms. Cornejo and at other times she states that she seeks a
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"deposition" of Ms. Cornejo. [Doc. No. 71, at pp. 1, 3, 4.]
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The Court notes that defendants submitted the Declaration of Ms. Dodgen-Bower
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in connection with their pending Motion for Summary Judgment, or in the Alternative,
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Partial Summary Judgment [Doc. No. 72]. Ms. Dodgen-Bower's Declaration states that
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she supervised plaintiff from March 2012 to January 2015. [Doc. No. 72-3, at p. 2.] As
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part of her supervisory duties, Ms. Dodgen-Bower explains in her Declaration that she
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investigated the vaccination incident by interviewing plaintiff and calling the patient
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who received the vaccination. [Doc. No. 72-3, at pp. 2-3.] Based on her investigation,
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Ms. Dodgen-Bower concluded plaintiff improperly administered the vaccine to the
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patient and therefore placed plaintiff on "a Level 3 Corrective Action for Performance."
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[Doc. No. 72-3, at p. 2.] Mr. Dodgen-Bower's Declaration also includes details about
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other "incidents" involving plaintiff that occurred after the vaccination incident that led
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to further disciplinary actions against plaintiff. [Doc. No. 72-3, at pp. 2-4.]
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Although it is true, as defendants contend, that plaintiff does not specifically
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explain why she believes "new testimony" from Ms. Cornejo will "corroborate" her
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claims against defendants [Doc. No. 71, at pp. 1, 3; Doc. No. 73, at p. 4], the Court must
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liberally construe plaintiffs Ex Parte Motion because she is proceeding prose.
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Construed liberally, it is apparent that plaintiff seeks access to documents and/or
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information that does satisfy the relevance standard in Federal Rule 26(b)(l), because
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16evl Q,.T.A RIK~(')
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there is a factual dispute about the vaccination incident, and, as a result, Ms. Dodgen-
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Bower's credibility is at issue. In addition, plaintiff's request is specific enough that the
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Court has no reason to believe it would be too burdensome for defendants to provide
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plaintiff with documents or information indicating whether Ms. Cornejo made any
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relevant claims or complaints against Ms. Dodgen-Bower.
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Under the circumstances presented, the Court rejects defendant's contention that
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plaintiff's request is "too late." [Doc. No. 73, at p. 5.] Defendant's Opposition to
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plaintiff's Ex Parte Motion confirms that plaintiff did request access to Ms. Dodgen-
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Bower's personnel records in a subpoena directed to defendant on April 27, 2017, two
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months after the deadline for completing discovery and three days before the expiration
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of the extension of the discovery cutoff, which was granted to complete plaintiff's
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deposition. [Doc. No. 73, at p. 3.] Defendants objected to the subpoena on a number of
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grounds, including timeliness, and did not provide plaintiff with a substantive response.
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However, defense counsel did tell plaintiff during the meet and confer process that "he
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was unaware of any complaints lodged against Ms. Dodgen-Bower." [Doc. No. 73, at
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p. 3, citing Doc. No. 73-1, at p. 2 (emphasis added).] Thus, it appears that plaintiff may
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have been dissuaded from pursuing this discovery earlier based on counsel's equivocal
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representation. It appears likely, however, that plaintiff would have been granted
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additional time to pursue this discovery if she requested it after she met and conferred
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with defense counsel. Under the circumstances, the Court is reluctant to conclude that
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this pro se plaintiff's pursuit of information about any claims Ms. Cornejo may have
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made against Ms. Dodgen-Bower is "too late," particularly when plaintiff claims she
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discovered this "new testimony" by Ms. Cornejo "through due diligence" [Doc. No. 73,
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at p. 5], and defendants do not dispute these assertions in their Opposition [Doc. No. 73,
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atpp.2-10].
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D.
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Federal Rule 16(b)(4) states that: "A schedule may be modified only for good
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Good Cause.
cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). Good cause for an
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16cvl95-LAB(KSC)
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extension exists when the moving party requests additional time and demonstrates he
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cannot meet the deadline despite exercising due diligence. Fed.R.Civ.P. 6(b ); Johnson v.
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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). "If that party was not
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diligent, the inquiry should end." Id.
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Defendants argue that plaintiffs request for additional discovery is untimely, and
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she has not shown good cause to re-open discovery. They also challenge plaintiffs Ex
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Parte Motion to Re-Open Discovery on other grounds, including relevance, privacy, and
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speculation. However, defendants do not challenge plaintiffs assertions that she is
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seeking additional time for discovery, because she learned of"new evidence" and/or
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"new testimony" through "due diligence" and in documents "supplied by the defendants
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themselves." [Doc. No. 71, at p. 2.] Construing plaintiffs Ex Parte Motion liberally, as
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the Court is obligated to do when the plaintiff is proceeding in pro se, it appears there is
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good cause to briefly re-open discovery to allow plaintiff to discover the following:
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(1) any documents concerning a claim made by Ms. Cornejo against Ms. Dodgen-Bower
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during the relevant time period; and (2) any documents concerning a second vaccination
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incident during the relevant time period. However, to the extent plaintiff seeks to re-
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open discovery to take a Rule 30 or Rule 45 deposition of Ms. Cornejo, the Court finds
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that plaintiff has not provided enough information to establish there is good cause to re-
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open discovery long enough to take Ms. Cornejo's deposition at this late date in the
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proceedings.
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Conclusion
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Based on the foregoing, IT IS HEREBY ORDERED that plaintiffs Motion to Re-
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Open Discovery is GRANTED in part and DENIED in part. In this regard, IT IS
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FURTHER ORDERED that:
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1.
No later than October 18, 2017, SCPMG shall complete a reasonably
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diligent search and produce to plaintiff all documents kept in the regular course of
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business concerning any incidents from 2014 through the present involving vaccinations
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administered by any employee ofSCPMG at the facility where plaintiff was employed
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