DAY et al v. DISTRICT OF COLUMBIA et al

Filing 357

MEMORANDUM OPINION AND ORDER denying 350 plaintiffs' Motion for Discovery; granting in part and denying in part 351 plaintiffs' Motion to Extend the Deadline for Their Expert Reports; and amending 341 the July 13, 2020 scheduling orde r. The District of Columbia shall produce all documents requested by plaintiffs on or before November 17, 2020. Plaintiffs shall submit their expert reports on or before December 1, 2020. The District shall take plaintiffs experts depositions on or before December 15, 2020. Signed by Judge Paul L. Friedman on November 3, 2020. (lcan)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________

)
IVY BROWN, et al.,
)
)
Plaintiffs,
)
)
v.
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)
DISTRICT OF COLUMBIA,
)
)
Defendant.
)
____________________________________)

Civil Action No. 10-2250 (PLF)

MEMORANDUM OPINION AND ORDER
On October 16, 2020, plaintiffs filed a Motion for One Additional Fact
Deposition, Related Document Discovery, and a Corresponding Extension of the Discovery
Schedule (“Motion for Discovery”) [Dkt. No. 350]. On October 30, 2020, the District of
Columbia filed its Opposition to plaintiffs’ Motion for Discovery (“Opp. Disc.”) [Dkt. No. 356].
On October 26, 2020, plaintiffs filed a Motion to Extend the Deadline for Their Expert Reports
and/or to Schedule a Status Conference at the Court’s Earliest Convenience (“Motion to
Extend”) [Dkt. No. 351]. Simultaneously, they filed a Motion to Expedite Consideration of their
Motion to Extend (“Motion to Expedite”) [Dkt. No. 352]. This Court granted plaintiffs’ Motion
to Expedite and set a briefing schedule. See Order of October 27, 2020 [Dkt. No. 353]. On
October 29, 2020, the District filed its Opposition to plaintiffs’ Motion to Extend (“Opp.
Extend”) [Dkt. No. 354]. Plaintiffs filed their Reply in Support of Their Motion to Extend
(“Reply”) [Dkt. No. 355] on October 30, 2020.
Because the plaintiffs’ Motion for Discovery and Motion to Extend each ask for
amendments to the amended scheduling order issued on July 13, 2020 [Dkt. No. 341], the Court

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will address both pending discovery motions in this memorandum opinion. For the reasons that
follow, the Court will deny plaintiffs’ Motion for Discovery and will grant in part and deny in
part plaintiffs’ Motion to Extend.
I. BACKGROUND
Plaintiffs are a class of physically-disabled individuals who have been living in
nursing facilities but who seek to transition to community-based care. In this action, plaintiffs
allege that the District of Columbia has failed to provide adequate services to assist class
members in transitioning to community-based care, which has caused them to remain in nursing
facilities in violation of the integration mandate of Title II of the Americans with Disabilities
Act, 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et
seq. See Fourth Amended Complaint [Dkt. No. 162] ¶ 3. After a nine-day bench trial, Judge
Ellen Segal Huvelle, who presided over this case prior to her retirement, found that plaintiffs had
not shown the “existence of a concrete, systemic failure that entitles them to class-wide relief.”
Brown v. District of Columbia, 322 F.R.D. 51, 96 (D.D.C. 2017). She therefore entered
judgment for the District of Columbia. See id.
Plaintiffs appealed and the court of appeals reversed. It held that by requiring
plaintiffs to establish a “‘concrete, systemic deficiency’ in the District’s transition services,” the
district court had “require[d] plaintiffs to meet a burden they should not have been made to
shoulder.” Brown v. District of Columbia, 928 F.3d 1070, 1079 (D.C. Cir. 2019). The court of
appeals therefore remanded for a new trial. See id. at 1083-85 (laying out remand instructions).
The main issue on remand is whether the District can establish that plaintiffs’ requested
accommodations are unreasonable. Id. at 1083. The District may establish that in one of two
ways. First, the District could show that it has an adequate so-called “Olmstead Plan” in place.

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If it cannot do that, the District could “establish that each of the four provisions of plaintiffs’
requested injunction would be so costly as to require an unreasonable transfer of the District's
limited resources from other disabled individuals.” Id. at 1084.
II. LEGAL STANDARD
Reopening discovery requires a showing of good cause. See In re Rail Freight
Fuel Surcharge Antitrust Litig., 138 F. Supp. 3d 1, 2 (D.D.C. 2015). “Courts generally consider
six factors when determining whether to reopen discovery: ‘(1) whether trial is
imminent; (2) whether the request is opposed; (3) whether the non-moving party would be
prejudiced; (4) whether the moving party was diligent in obtaining discovery within the
guidelines established by the court; (5) the foreseeability of the need for additional discovery in
light of the time allotted by the district court; and (6) the likelihood that the discovery will lead to
relevant evidence.’” Id. (quoting Watt v. All Clear Bus. Sols., LLC, 840 F. Supp. 2d 324, 326
(D.D.C. 2012)). The question of whether to reopen discovery is “committed to the sound
discretion of the trial court.” Watt v. All Clear Bus. Sols., LLC, 840 F. Supp. 2d at 326 (citation
omitted).
Similarly, scheduling orders “may be modified only for good cause and with the
judge’s consent.” FED. R. CIV. P. 16(b). What constitutes good cause varies based on the
circumstances of the case. See 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE & PROCEDURE § 1522.2 (3d ed. 2010). Generally, however, “[t]he
good cause standard requires the ‘party seeking relief to show that the deadlines cannot
reasonably be met despite [its] diligence.’” Capitol Sprinkler Inspection, Inc. v. Guest Servs.,
Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (citation omitted). Even “if the moving party
establishes that [it] acted diligently, [it] must also show that there is a lack of prejudice to the

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opposing party.” Breen v. Chao, Civil Action No. 05-0654, 2019 WL 1304327, at *4 (D.D.C.
Mar. 21, 2019) (quoting Lovely-Coley v. District of Columbia, 255 F. Supp. 3d 1, 7
(D.D.C. 2017)).
III. DISCUSSION
A. Motion for Additional Discovery
Plaintiffs seek leave to conduct one additional fact deposition, a deposition of
Jennifer Reed, Director of the D.C. Office of Budget and Performance Management, see Motion
for Discovery at 4, and request production of documents related to that deposition, see id. at 6-7.
They state that the deposition and related documents will help them “to learn about the facts
relevant to the District’s fundamental alteration defense.” Id. at 4, 7. Plaintiffs aver that the
deposition will impose only a modest burden on the District. Id. at 5. Finally, they request an
amended scheduling order to reflect the additional time they will need to review the documents
and conduct the deposition. See id. at 8.
The District responds that plaintiffs have failed to show good cause to reopen fact
discovery. See Opp. Disc. at 5. Plaintiffs, it asserts, cannot articulate what useful information
they would glean from deposing Director Reed at this time. Id. at 6. The District also argues
that a deposition of Director Reed would impose a large burden because she is currently
directing the District’s budget-planning process for 2021. Id. at 8. Finally, the District points
out that these same arguments were made before and rejected by Judge Huvelle as recently as
July of this year. Id. at 5, 10.
The Court will not reopen discovery at this time. Of the factors courts consider
when deciding a motion to reopen discovery, only one weighs in favor of plaintiffs: the trial is
not imminent. See In re Rail Freight Fuel Surcharge Antitrust Litig., 138 F. Supp. 3d at 2.

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Conversely, the motion is opposed, and the District maintains that it would be prejudiced by the
time it would require to gather the requested documents, as well as the time the deposition would
take away from the deponent’s other responsibilities. See id. In addition, plaintiffs were not
diligent in seeking leave to conduct an additional deposition. Indeed, they have known since
July that they wished to depose Director Reed, and they even had Judge Huvelle’s permission to
take Director Reed’s deposition as one of their five allotted depositions. See July 13, 2020
Hearing Transcript [Dkt. No. 346] at 39. They chose not to do so.
A deposition of Director Reed is also unlikely to lead to relevant evidence. See In
re Rail Freight Fuel Surcharge Antitrust Litig., 138 F. Supp. 3d at 2. Plaintiffs state that they
need the deposition to learn facts the District will use to present its fundamental alteration
defense. But as Judge Huvelle noted, “until the District puts on their fundamental alteration
defense, [plaintiffs don’t] know enough to even depose” Director Reed. See July 13, 2020
Hearing Transcript at 38-39. In other words, she said, it would be a “waste of time” for plaintiffs
to depose Director Reed regarding budgetary decision-making until they know whether the
District’s fundamental alteration defense will include arguments about inequitable distribution of
the budget. See id. at 39-40, 42. Judge Huvelle suggested that after the District presents its
defense at trial, plaintiffs could ask for a continuance in order to depose Director Reed if they
had good cause to do so. See id. at 39. She also noted that plaintiffs already have information
about the District’s budget and budgetary priorities, as that information is publicly available. See
id. at 33. For these reasons, Judge Huvelle held plaintiffs’ request for documents relating to
Director Reed “in abeyance.” July 13, 2020 Scheduling Order at 2. The Court finds that it is
appropriate to continue to hold that request in abeyance at this time.

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Finally, plaintiffs do not argue that circumstances have changed such that the
Court’s decisions in July merit reconsideration. The Court acknowledges that the accelerated
discovery schedule was due in part to Judge Huvelle’s imminent retirement. Nonetheless, the
Court is not declining to reopen discovery because of a desire to strictly adhere to discovery
limits set by Judge Huvelle. Rather, the Court finds that plaintiffs have not established what
benefit would accrue from reopening fact discovery at this late date for the purpose of deposing
Director Reed. Because plaintiffs have failed to show good cause, the Court denies their Motion
for Discovery.
B. Motion to Extend Deadline for Expert Reports
Plaintiffs also move for a forty-five-day extension of time to file their expert
reports. See Motion to Extend at 9. They state that good cause exists for the extension because
recent fact depositions revealed the existence of documents that are relevant to the issues on
remand, including documents not previously produced that concern the adequacy of the
District’s Olmstead Plan and whether the requested accommodations would “fundamentally
alter” the District’s provision of services. See id. at 2, 6-7. Plaintiffs contend that these
documents should have been produced by the District before now because they are responsive to
plaintiffs’ October 2019 document requests. See id. at 5. Plaintiffs state that much of the
information is “central to this case” and necessary for the experts to complete their reports. Id.
at 6-7. They argue that they could not have foreseen that the District would not have timely
produced the documents. See Reply at 6.
The District responds that plaintiffs have always known they would have only two
weeks between the end of depositions and submission of expert reports. See Opp. Extend at 3.
It points out that documents relevant to a party’s case often come to light during depositions and

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argues that plaintiffs’ failure to take this into account shows a lack of diligence. See id. at 4-5.
The District ultimately characterizes this motion as “but one more attempt to extend discovery
and further delay the resolution of this case.” Id. at 1.
The Court concludes that plaintiffs have shown good cause to extend the deadline
for their expert reports. See FED. R. CIV. P. 16(b). The documents that plaintiffs now seek are
plainly responsive to their October 2019 document requests. See Plaintiffs’ Second Request for
Production of Documents [Dkt. No. 351-1]. The requested extension therefore is necessary in
part because the District failed to fully comply with those requests and to supplement its
document productions by September 8, 2020, as ordered by the Court. See July 13, 2020
Scheduling Order [Dkt. No. 341] at 3. Further, while it is true that parties often discover the
existence of relevant documents during depositions, the Court cannot reasonably agree that a
party should anticipate that opposing counsel will be derelict in its responsibility to supplement
disclosures.
The District offers no evidence to supports its claim that plaintiffs have not been
diligent in their attempts to meet the Court’s deadlines. See Capitol Sprinkler Inspection, Inc. v.
Guest Servs., Inc., 630 F.3d at 226. As soon as plaintiffs learned about the additional
documents, they requested them from the District. Plaintiffs also did not fail to anticipate the
need for more time between depositions and expert reports. Instead, they requested thirty days.
See Joint Status Report of July 8, 2020 [Dkt. No. 340] at 6. Although Judge Huvelle did not, at
that time, believe thirty days would be necessary, this Court is now convinced that more time
should be given to plaintiffs – at least in part because of the District’s failure to timely
supplement document productions.

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The Court further concludes that an extension of time would not prejudice the
District. See Breen v. Chao, 2019 WL 1304327, at *4. Indeed, the District has not argued that it
would be prejudiced in any real sense by the proposed extension. See generally Opp. Extend.
To the extent that the District argues that it is prejudiced by what it characterizes as a litany of
extension requests, the Court finds that argument unconvincing. While this case was originally
filed almost ten years ago, the court of appeals only issued its remand opinion in July 2019. See
Brown v. District of Columbia, 928 F.3d 1070. Since then, both parties have sought extensions
of time to complete discovery. See July 13, 2020 Hearing Transcript at 44 (stating that the
District “agreed to produce an expert back in the end of April, beginning of May” and therefore
requiring it to “give an expert report by August 28th”).
Finally, this case is distinguishable from cases where courts have denied motions
to amend scheduling orders. Those denials generally occur where the moving party has
exercised far less diligence than plaintiffs have shown in this case. See, e.g., Artis v. Yellen, 307
F.R.D. 13 (D.D.C. 2014) (declining to allow the submission of an additional expert report eight
months after the deadline); Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d at
226 (denying a motion to file a supplement to expert disclosures where party noticed depositions
the same day the disclosures were due, thus precluding the expert’s ability to incorporate
information gained from those depositions); cf. Cumis Ins. Soc’y, Inc. v. Clark, 318 F. Supp. 3d
199 (D.D.C. 2018) (finding good cause to amend the scheduling order, despite party’s failure to
participate actively in litigation, because party was concurrently involved in criminal and
administrative proceedings and imprisoned during the pendency of the case).
The Court finds that a forty-five-day extension is not necessary for plaintiffs to
complete document review and incorporate that information into their expert reports; thirty days

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should suffice. The Court will therefore allow two weeks for the District to comply with
plaintiffs’ document requests and fully supplement plaintiffs’ October 2019 document requests.
Plaintiffs will have two weeks from the date the District fulfills its discovery obligations to
submit their expert reports. Accordingly, it is hereby
ORDERED that plaintiffs’ Motion [Dkt. No. 350] for Discovery with respect to
Director Reed is DENIED; it is
FURTHER ORDERED that plaintiffs’ Motion [Dkt. No. 351] to Extend is
GRANTED in part and DENIED in part; and it is
FURTHER ORDERED that the Scheduling Order of July 13, 2020, is amended as
follows:
(1) The District shall produce all documents requested by plaintiffs on or before
November 17, 2020.
(2) Plaintiffs shall submit their expert reports on or before December 1, 2020.
(3) The District shall take plaintiffs’ experts’ depositions on or before December
15, 2020.
SO ORDERED.
/s/
________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: November 3, 2020

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